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Protection From Predators
FOCUS COLUMN

By David Labahn

      Jessica's Law is the most significant piece of criminal justice legislation since the three-strikes law was enacted 12 years ago. Named after Jessica Lunsford, a 9-year-old girl who was sexually assaulted and brutally murdered by a lifelong criminal in Florida, the new law was approved by California's voters in the November 2006 election as Proposition 83. Jessica's Law affects scores of areas relating to sex crimes.
      Jessica's Law is a collection of statutes related to a single topic and with a single goal: protecting the public from sexual crimes and predation. The new law addresses public safety from different angles, including monitoring, punishing and incapacitating criminals, deterring sex offenses and protecting vulnerable members of society from these terrible crimes.
      The objective of this article and the accompanying self-study test is to familiarize lawyers and bench officers with the areas of Jessica's Law that they likely will encounter in the courts. Readers will learn about the operative date of the new law, the crimes that it either creates or expands and the key increases in punishment arising from the new law. Readers also will learn about two specific items about which litigation is expected: the creation of 2,000-foot predator-free zones around schools and parks, and the broadening of the Sexually Violent Predator Act.

      Effective Date
      Jessica's Law was an initiative approved by the voters Nov. 7, 2006. Under the California Constitution, an initiative becomes effective the day after it is approved. Article II, Section 10(a). Hence, the overall operative date of the new law is Nov. 8, 2006, the day after the election. An added wrinkle here is the governor's signing of S.B. 1128 (Alquist) on Sept. 20, 2006. Statutes 2006, c. 337. S.B. 1128 was urgency legislation that contained many provisions identical to Jessica's Law. Thus, regarding those common provisions, the effective date is Sept. 20, 2006, the date the bill was signed. See California Constitution, Article IV, Section 8(c)(3).
      Because of ex post facto principles, the date that the law became effective varies, depending on the provision at issue. To the extent that any provision increases the sentence or fine for a crime, creates new crimes or changes the elements that must be proved to establish a person's guilt, an offense must occur on or after either Sept. 20, 2006, or Nov. 8, 2006, for the new law to apply, depending again on the provision at issue. Application of Jessica's Law to crimes that happened before these dates would be unconstitutionally ex post facto. Tapia v. Superior Court, 53 Cal.3d 282 (1991).
      Provisions in Jessica's Law that bar the court from striking findings in furtherance of justice under Penal Code Section 1385 or that bar granting probation are considered to increase punishment. These provisions are in both SB 1128 and Jessica's Law; hence, such provisions cannot be applied to crimes that occurred before Sept. 20, 2006. People v. Hoze, 195 Cal.App.3d 949 (1987). For example, the bar in the new law that prohibits granting probation for lewd acts on a child by dismissing a gun-use allegation under Section 1385 (Penal Code Section 1203.06(a)(1)(D)) applies only if that crime occurred on or after Sept. 20.
      Provisions that require high-risk sex offenders released from prison to wear global positioning system monitoring devices for life (Penal Code Section 3000.07) are found only in Jessica's Law but likely will be held to apply even when such an offender's crime occurred before Nov. 8, 2006. Because this requirement is intended to monitor the person's activity, not to punish the individual, there is a strong argument that it is not invalidly ex post facto. People v. Castellanos, 21 Cal.4th 785 (1999) (holding that the lifetime registration requirement for sex offenders is not punishment and thus not ex post facto).
      Finally, courts likely will hold that the increase in the scope of the Sexually Violent Predator law (Welfare and Institutions Code 6600 et seq.), which is only in Jessica's Law, applies even to defendants in prison at the time that Jessica's Law became operative on Nov. 8, 2006.
      The original Sexually Violent Predator statute was held not to be ex post facto regarding defendants who were in prison when the Legislature enacted the measure in 1995 because the statute was not punishment for people within its scope. Hubbart v. Superior Court 19 Cal.4th 1138 (1999).

      Expanded Sex Crimes
      Jessica's Law created two new sex crimes: living within 2,000 feet of schools or parks as a registered sex offender and contacting children for sexual purposes. It also expanded the coverage of several existing sex crimes.
      The new crime of contacting children for sex makes contacting, communicating or attempting to contact or communicate with a minor with intent to commit designated sex crimes a felony. Penal Code Section 288.3. The crimes covered include kidnapping and lewd acts with a child younger than 14. Penal Code Sections 207, 288. The punishment for this new crime is set at the term prescribed for an attempt to commit the designated sex crime.
      Crimes that were expanded under Jessica's Law include kidnapping for commission of sex crimes, which used to list only target offenses like rape or oral copulation but now includes the target offenses of lewd acts with a child and penetration with a foreign object. Penal Code Section 209(b)(1). The crime of commission of sex acts by a perpetrator 10 or more years older than a victim younger than 14 is expanded by reducing the age disparity to seven or more years older. Penal Code Section 269(a). Moreover, the criminal acts subject to the reduced age disparity now include rape through threat of retaliation. Penal Code Section 261(a)(6).

      Increases in Punishment
      Jessica's Law increased fines for commission of almost all sex crimes. It also increased sentences for many sex offenses.
      The minimum fine for any felony or misdemeanor sex crime listed in Penal Code Section 290 used to be $200 for a first conviction and $300 for the second and every subsequent conviction. The crimes listed in Section 290 are those for which a defendant must register as a sex offender, and they include just about every sex crime, ranging from forcible rape and sodomy to misdemeanor indecent exposure and annoying a child younger than 18. See Penal Code Section 290(a)(2). The fines are increased to $300 for the first conviction and $500 for the second and every subsequent conviction. Penal Code Section 290.3(a). The fines are added "in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense."
      Sentences are increased for sex crimes like assault with the intent to commit a target sex crime, which goes up from 2, 4, or 6 years to life in prison with the possibility of parole when the assault is perpetrated during a residential burglary. Penal Code Section 220(b).
      The punishment for possession of child pornography is increased from a misdemeanor to a felony for a first offense. Penal Code Section 311.11(a). Moreover, the punishment for possession of child porn with a prior remains 2, 4, or 6 years, but the priors are increased to include all crimes listed in Penal Code Section 290, rather than merely priors for child-porn-related offenses. Penal Code Section 311.11(b).
      The list of crimes for which courts are required to impose mandatory consecutive sentences is expanded. Penal Code Section 667.6. The scope of the one-strike law, which requires life sentences for sex crimes committed under specified circumstances, is also increased. Penal Code Sections 269(c), 667.61. And so too are the types of crimes for which a court cannot strike findings in order to render defendants eligible for probation. Penal Code Section 1203.06, 1203.065, 1203.075.

      Predator-Free Zones
      Jessica's Law intends to prevent sexual predators from living near where children learn and play. To achieve this goal, it created a new provision making it unlawful for any person subject to Section 290 registration "to reside within 2000 feet of any public or private school, or park where children regularly gather." Penal Code Section 3003.5(b). The law also specifically allows local municipalities to enact further restrictions regarding where Section 290 sex offenders can reside. Penal Code Section 3003.5(c).
      Before this law was enacted, no provision made it a crime for a sex offender to live within proximity to any place. Before Jessica's Law, people released from prison on parole for sex crimes had to be placed by the authorities no closer than 1,320 feet from a school and no closer than 2,640 feet from a school if they were deemed high-risk sex criminals. Penal Code Section 3003(g). But it was not a crime if parolees violated these rules. It may be argued that Jessica's Law made such violations misdemeanors, punishable with up to six months in jail or a $1,000 fine or both. See Penal Code Sections 19, 19.4. On the other hand, because no punishment was attached to the residency restriction, it may not satisfy the definition of crime established in Penal Code Section 15. People v. McNulty, 93 Cal. 427 (1892).
      Jessica's law not only expanded the residency restrictions to include parks but also expanded the group of people subject to the restrictions. It includes all people subject to Section 290 registration, not just people released from prison.
      One issue that arises is what it means to "reside" in a prohibited zone. Although this term is not defined in the statute, courts likely will look to the definition used for purposes of the Section 290 registration requirement.
      "Residence" in this context has been construed to mean "any factual place of abode of some permanency, that is, more than a mere temporary sojourn ... [And] as 'connot[ing] more than passing through or presence for a limited visit.'" People v. McCleod, 55 Cal.App.4th 1205 (1997).
      Another issue is whether a defendant's knowledge that a school or park was within 2,000 feet is an element of the potential crime. Comparison of this law to other statutes strongly indicates that knowledge is not an element. Health and Safety Code Section 11353.6, for example, increases the sentence for committing drug offenses within 1,000 feet of a school and, like Jessica's Law, does not state that knowledge is required.
      A court has held that this drug law does not require the defendant to know that a school was nearby. People v. Atlas, 64 Cal.App.4th 523 (1998). Similarly, the 9th Circuit has held that violations of the federal school drug law also do not require knowledge. U.S. v. Pitts, 908 F.2d 458 (9th Cir. 1990).
      In contrast, the California statute barring possession of a firearm within 1,000 feet of a school specifically applies only when the defendant "knows, or reasonably should know" that he or she is within 1,000 feet of a school. Penal Code Section 626.9(b).
      This shows that, when legislation is intended to include a knowledge requirement, its drafters specifically insert that requirement into the statutory language.
      The residency restriction provisions of Jessica's Law have been challenged in a civil lawsuit filed on Nov. 8, 2006, in the U.S. District Court for the Northern District of California. The complaint says that these restrictions are punitive and violate the Ex Post Facto and Due Process clauses of the U.S. Constitution. The governor, attorney general and four Northern California district attorneys have been enjoined from enforcing the residency-restriction provision created by Jessica's Law, pending the outcome of the litigation.

      Changes to SVP Law
      Before Jessica's Law, the Sexually Violent Predator statute required that prison authorities screen specified sex offenders serving determinate prison sentences before their release. If they met certain criteria - a history of convictions for specified sex crimes and a psychological diagnosis of being a "sexually violent predator" - court proceedings were instituted to determine whether they should be maintained in custody past their release date. See Welfare and Institutions Code Section 6600 et seq.
      If, at a jury trial, the person was found to have the requisite prior sex crimes and found to have a mental disorder making him or her likely to engage in sexually violent crimes, the person could be held for up to two additional years in a state prison mental hospital. To keep the person in custody for longer than two years, the prison authorities would have to reinstitute Sexually Violent Predator proceedings and afford the person another trial. This procedure could be repeated indefinitely every two years. Welfare and Institutions Code Section 6604.1
      Jessica's Law makes two significant changes to the statute. It eliminates the need to repeat the process every two years, providing instead for indefinite confinement following the first jury trial. And it increases the pool of people subject to the law by modifying the requisite sex offenses.
      The new law provides that, when a jury, or a judge if jury trial was waived, finds the defendant to be subject to the law, the defendant's commitment to a prison mental hospital is indeterminate. Welfare and Institutions Code Section 6604. Nonetheless, Jessica's Law allows a defendant who has received an indeterminate commitment to petition the court for a determination on whether he or she still meets the definition of a sexually violent predator or whether release to a less-restrictive facility is appropriate. Welfare and Institutions Code Section 6605.
      Regarding the requisite offenses, the previous law specified that the person had to have committed designated sex crimes against at least two victims. Jessica's Law reduced this to a single victim. Welfare and Institutions Code Section 6600(a)(1). The new law also increased the types of sex crimes that count, including some juvenile offenses, and added more qualifying sex offenses to the list. Welfare and Institutions Code Section 6600(a)(2)(H), (b).
     
      David Labahn is the executive director of the California District Attorneys Association.

     
      NEW MCLE AND JUDICIAL EDUCATION SERIES

      Continuing legal education for both lawyers and judicial bench officers is essential to effective practice and court administration. Starting today, the Daily Journal will run a monthly series of self-study articles and tests providing lawyers with MCLE credit and judges and commissioners with continuing legal education. The series will feature timely articles written by California’s leading judges, commissioners, attorneys and law school faculty. Los Angeles County Superior Court Judge Alex Ricciardulli will work with the authors and draft the self-study tests accompanying the articles. Neither Judge Ricciardulli nor the authors receive any compensation.

      MCLE
Earn one hour of MCLE credit by reading the article and answering the questions that follow. Mail your answers with a check for $28 to the address on the answer form. You will receive the correct answers with explanations and an MCLE certificate within six weeks. Price subject to change without notice. CERTIFICATION: This self-study activity has been approved by the State Bar of California toward Minimum Continuing Legal Education Credit in the amount of one hour of general credit.

      Judicial Education
Bench officers can receive credit toward the educational provisions in California Rule of Court 10.462 by taking and self-grading their tests online at the California Administrative Office of the Courts Web site for bench officers only: Serranus. (Bench officers only can apply for an account at http://serranus.courtinfo.ca.gov and select “Apply for an Account Link.”) The articles and tests are designed to meet the approved criteria for judicial self-study: (A) the education is relevant to bench officers’ work; (B) it is one hour long; and (C) anticipated learning outcomes are pre-identified. Rule 10.471(b)(1). The education also meets criteria (B) and (E) in Rule 10.471(b)(2): (B) the participant receives written materials (the article); and (D) an assessment tool is used (the taking and self-grading of the test). The articles and tests are not pre-approved by the Judicial Council, the AOC or CJER. Bench officers should check with their local presiding judges to ensure that the activity can be used toward satisfying Rule 10.462 legal education provisions.
     

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