Sentencing Law & Policy posts about a new California Court of Appeal opinion which found that "the residency restrictions in California's sex offender registration law are 'punishment' for Apprendi purposes." You may view the opinion here. From the opinion:
This appeal sits at the intersection of two topical, controversial legal issues: sex offender registration and the right to a jury trial. The Legislature and the voters have drastically expanded the reach and ramifications of sex offender registration in recent years, culminating in “The Sexual Predator Punishment and Control Act: Jessica’s Law” (Jessica’s Law), approved in 2006 as Proposition 83.1 The United States Supreme Court has revitalized the right to a jury trial over the same period, culminating in decisions striking down the federal sentencing guidelines in 2005 and California’s determinate sentencing law (DSL) in 2007. Juries, not judges, must determine any additional facts necessary to impose punishment beyond that otherwise provided by statute based solely on the jury’s verdict....
In this anomalous case — where the jury acquitted defendant of any sexual offense, but the court subjected defendant to the residency restriction by requiring sex offender registration based on its own fact-finding — we affirm defendant’s conviction on the underlying offense, misdemeanor assault. But we must reverse the imposition of the registration requirement. We modify the judgment by striking the sex offender registration requirement and affirm the judgment as modified.
This is an interesting way of addressing the punishment/regulation question. Courts have typically analyzed whether restrictions are punishment in the context of Ex Post Facto Clause claims. I would have thought an Apprendi type argument wouldn't have been applicable. However, in this case the restrictions were applied to a defendant who had only been found guilty of a non-sexual offense.
I think this decision, if it stands, will have little long term effect. It does not require jury fact-finding above a finding that the defendant committed a sex offense. It only applies in those odd instances where the defendant either pleas to or is found guilty of a non-sexual offense, but has committed acts that are sex offense related. The rationale in the decision is at odds with the 9th Circuit's non-categorical approach to SORNA, but despite the tension, the two holdings can certainly co-exist.
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