Recently, the court of appeal has held that the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. The court determined that imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica’s Law that was approved in 2006 as Proposition 83, which bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. Since Jessica’s Law residency restriction increases the punitive effect of a residency restriction, it increases the penalty for that offense beyond the statutory maximum without submitting this issue for the jury’s determination. (People v. Mosley, — Cal.Rptr.3d —-, 2010 WL 3769299.)

In Mosley, the jury acquitted the defendant of all sexual offenses, but found him guilty of a misdemeanor assault on a 12 year old girl. However, the trial court ordered the defendant to register as a sex offender based upon its own factual findings about his motivations-facts not proved beyond a reasonable doubt to the jury. The judge determined that the assault in this case was committed as a result of sexual compulsion for purposes of sexual gratification. In addition, the trial court determined that the imposition of sex offender registration was appropriate because the defendant was physically dangerous to the public, was at serious risk to re-offend, and was never treated for his sexual compulsion.

Under the United States Constitution, defendants have the right to a jury trial on any facts, other than their prior convictions, that increase their offense’s penalty beyond the statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) After comprehensive analysis of state and federal cases, the court determined that this residency restriction imposed by Jessica’s Law constituted punishment due to its overwhelmingly punitive effect. As such, because the residency restriction was punitive, its imposition by the court increased the penalty for defendant’s misdemeanor offense beyond the statutory maximum based upon the jury verdict alone. Thus, the facts required to impose the residency restriction must be found beyond a reasonable doubt by a jury, which was not done in this case.

The Mosley court carefully distinguished its holding from the California Supreme Court’s decision in In re E.J. (2010) 47 Cal.4th 1258, where it was determined that the residency restriction was not punishment for the original offense if it was imposed as a condition of a future parole. Here, on the other hand, the imposition of the residency restriction punished the defendant for his original offense because the defendant was required to register as a sex offender as part of his sentence on the misdemeanor conviction. Although sex offender registration itself might be regulatory, the residency restriction was found distinctly punitive.

As such, imposition of the residency restriction upon the defendant as part of his misdemeanor sentence constituted additional punishment for that offense. And because the court imposed discretionary sex offender registration that was not mandated by the statute, imposition of the residency restriction increased the penalty for his misdemeanor offense beyond the statutory maximum. Therefore, Apprendi entitled the defendant to a jury finding, made beyond a reasonable doubt, of any fact supporting discretionary sex offender registration and the resulting residency restriction. However, no such jury findings were made in this case.

The Mosley court specifically limited its holding to a very narrow category of cases where the trial court imposed discretionary sex offender registration following the defendant’s acquittal of the underlying sex crimes. The court may still impose discretionary sex offender registration and subject defendants to the residency restriction as long as the facts supporting the imposition of the registration requirement are found true by a jury beyond a reasonable doubt. However, because the residency restriction through discretionally sex offender registration increases the penalty for that offense beyond the statutory maximum, the imposition of such restriction must be supported by the jury finding and not the trial court’s determination.

The Mosley holding would have been different had the jury found the facts that the trial court relied upon in imposing discretionary sex offender registration to be true beyond a reasonable doubt. No similar issues would also arise in cases where the defendant entered a guilty plea since the defendant’s own admissions to the elements of sex offenses would support a trial court’s finding that the defendant acted due to sexual compulsion or for sexual gratification.

Regardless of how long ago you were convicted of sex crimes, contact our experienced Los Angeles sex offender registration attorneys who will examine the circumstances of your conviction to make sure that you are entitled to the best possible resolution of your criminal matter. At Wallin & Klarich, our criminal defense attorneys have over 30 years of experience representing clients who are required to register as sex offenders pursuant to Penal Code 290. Contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at (877) 466-5245. We will be there when you call.

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