May 20, 2014

The California Supreme Court declined to grant Orange County District Attorney Tony Rackaukas’s requests for review of two Appellate Court rulings. These rulings essentially struck down city ordinances that restricted registered sex offenders from being present in public places.

Sex offender ordinances were allowed to stand.
The Supreme Court allowed the lower Court’s decision regarding sex offender ordinances to stand.

The 4th District Court of Appeals held on January 10, 2014 that existing California state law regulating the daily lives of registrants “fully occupies the field” and thus overrides local sex offender ordinances enacted in the City of Irvine and Orange County which had attempted to restrict registrants from entering public parks and other recreational areas without prior written authorization by law enforcement.

By denying review of People v. Godinez (Orange County) and People v. Nguyen (Irvine), the California Supreme Court allowed the lower Court’s decisions in these matters to stand.

In both cases, a registered sex offender who had violated a local ordinance prohibiting his presence in a public park had his conviction reversed in 2012. Unconvinced, the Orange County D.A. pursued appeals in both matters and lost both times.

In 2011, Rackaukas made banning all sex offenders from Orange County beaches, parks and harbors a signature item on his political agenda. He persisted in getting 15 cities within the County to adopt a similar ban. Denial of review by the California Supreme Court in the current cases deals a final, fatal blow to the D.A.’s crusade.

Furthermore, the Appellate Court’s decision in People v. Nguyen, 222 Cal. App 4th 1168 (2014) was certified for publication and now serves as legal precedent, effectively declaring any similar sex offender ordinances in any other California community unconstitutional.

What Does State Law Preemption Mean?

California courts are in agreement that the state has already enacted strict rules regulating a sex offender’s life in the community and that these rules take priority over local community laws attempting to enforce additional restrictions that the state has not authorized.

The new supreme court decision no longer bans sex offenders
The new decision no longer bans sex offenders from parks, beaches, and libraries.

As a result, the Court’s decision effectively terminates any remaining city and county sex offender ordinances banning a registrant from public facilities such as parks, beaches, libraries and bus stops, as well as privately owned businesses like movie theaters, arcades and fast food restaurants with children’s playgrounds.

In fact, after the Court of Appeal’s decision, most, if not all California communities stopped enforcing their sex offender restrictions, including Irvine and Orange County. Some took the next step by repealing their ordinances, including the cities of Lancaster, Palmdale, Lake Forest, Costa Mesa and Redlands as well as El Dorado County.

Several cities have faced costly legal challenges in federal court on grounds that these ordinances violate both state and federal constitutional rights, in addition to being preempted by existing law.

Currently, the cities of Pomona, South Lake Tahoe, Carson, National City, and Lompoc are all facing federal lawsuits because they refused to repeal or agree to stop enforcing their sex offender rules after Irvine and Orange County’s ordinances had been invalidated.

What Are State Laws in Effect Regulating Sex Offenders?

The current statewide system regulating sex offenders in the community is more comprehensive than the public may realize.

Most notably, California Penal Code section 290 (PC 290) requires all convicted adult and some adjudicated juvenile sex offenders to register with local law enforcement agencies for the rest of their lives as long as they reside, work or attend school in California. A violation of this law is either a misdemeanor or a felony, depending on the underlying sex offense.

Additionally, community notification laws require most registrants to be searchable by picture, name, conviction and home address or zip code on California’s public sex offender registry. Parents can use the database already in place to protect their families.

Your location must be tracked with a GPS device under certain conditions.
If you are a PC 290 state parolee, your location must be tracked with a GPS device.

In addition to registration and community notification, state laws also control a registered sex offender’s movement in public. All PC 290 state parolees and certain high risk county probationers must be supervised with a GPS tracking device strapped to their ankles (Penal Code sections 3004; 3000.07 and 1202.8).

Another statute requires a condition of parole that a sex offender convicted of an offense involving one or more victims under the age of 14 be prohibited from being in any park without prior express approval from his or her parole agent (Penal Code section 3053.8). Those convicted of child molest can be kept on parole for 10 years or more, and such approval is rarely, if ever granted.

Furthermore, state law forbids a sex offender from entering the grounds of a secondary school (K-12) without prior written permission of the school’s principal (Penal Code section 626.81 (a)). Doing so is a misdemeanor, punishable by up to one year in jail.

Moreover, state laws requires a sex offender to disclose his or her status in certain professional and volunteer positions where he or she may be in unaccompanied or physical contact with minors, and forbids employment where direct, unsupervised contact with children under the age of 16 is involved (Penal Code section 290.95).

Is Sex Offender Residency Affected?

No. These recent decisions do not have any bearing on where or with whom a sex offender may live. Currently, California law prohibits unrelated sex offenders on parole from living together in the same household, with limited exceptions (Penal Code section 3003.5 (a).).

A sex offender may not reside within 2000 feet of a school or park
You still may not reside within 2000 feet of a school or park, if you are a registered sex offender. 

Additionally, anyone required to register pursuant to Penal Code 290 is prohibited from residing within 2000 feet of a public or private school, or park where children regularly gather (Penal Code section 3003.5 (b).). However, the California Supreme Court held in 2010 that the 2000 foot residency rule applies only a registrant’s future release onto parole (In re E.J., 47 Cal. 4th 1258 (2010).).

Furthermore, state law does not prevent local cities from enacting ordinances that further restrict the residency of a sex offender (Penal Code section 3003.5 (c).).

Legal challenges to sex offender residency restrictions are still pending in the California Supreme Court, which has yet to decide whether these laws are an unconstitutional form of banishment.

What About Protecting the Children?

The decisions of the California Courts to invalidate the City of Irvine and the County of Orange ordinances restricting sex offender presence in public places are neither against the protection of children nor pro-sex offender rights, as political pundits, the media or the general public may believe.

The courts do not make public policy, nor decide whether a law is morally correct or necessary. The courts decide issues of constitutionality and in these matters the issue is state law preemption.

The California Constitution, Article XI, Section 7 declares: “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. Furthermore, according to Article IV, Section 16, subdivision (b): “A local or special statute is invalid in any case if a general statute can be made applicable.”

Applying the rule of constitutional law to the facts at hand, the Court of Appeals has held that a comprehensive statewide system regulating where a sex offender may or may not be present already exists and trumps local laws. The California Supreme Court has declined to hear any further argument on this issue. The matter is settled.

What Are Your Thoughts?

Our attorneys at Wallin & Klarich invite you to join the discussion on this topic. Please feel free to tell us what you think.

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Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 38 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

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