A New Appellate Decision Curtails Judge's Power to Order Sex Offender Registration
By: Seth Chazin and Elena Thibault
In September 2010, the California Court of Appeal for the Fourth District struck down a trial judge's order directing a defendant to register as a sex offender. The trial judge in People v Mosley (2010 WL 3769299) had the authority under California law to exercise his discretion to order sex offender registration. However, precisely because the findings in support of sex offender registration were made by the court and not by the jury, the Court of Appeal reversed the order for sex offender registration. The Court ruled that the jury should have determined whether registration was needed.
The facts are as follows: The defendant Mosley met the alleged victim, a 12-year old girl, at an apartment complex while the girl was visiting her grandmother. On the first day, they spent time by the pool under the grandmother's supervision. Within the next few days, the defendant ended up kissing the girl. On the day in question, the girl was at a complex carport when the defendant approached her. After a brief conversation, the defendant purportedly started kissing the girl on her neck and ultimately raped her "for maybe two minutes." The incident was reportedly observed by the victim's two younger brothers, one of whom walked to the apartment to get their grandmother. When the grandmother arrived, she saw that the defendant and her granddaughter were struggling but the girl's clothes did not appear to be out of order. The grandmother yelled at the defendant and the defendant stopped whatever he was doing. The girl seemed scared but she was not crying as she walked away from the scene. No action was taken at that time. It was only some time later that the victim told her father about the incident. The police interviewed the girl twice and both times she presented somewhat different accounts of the event. The grandmother also gave her story to the police, which she then changed in court. At the conclusion of the investigation, the defendant was charged with committing a lewd act upon a child less than 14 years of age, also known as Child Molestation (Penal Code section 288 (a)).
During the trial, the testimony of the witnesses, all of whom were either the victim or the victim's relatives, was so muddled that the jury acquitted Mosley of the Child Molestation (Penal Code section 288 (a)) charge that would have required Penal Code section 290 Sex Offender Registration. The jury did find Mosley guilty of simple assault (Penal Code section 240, et seq.), a misdemeanor. The court later sentenced the defendant to serve six months in the county jail, with 180 days credit for time served. The court also ordered Mosley to register as a Sex Offender pursuant to Penal Code section 290. In stating its reasons for requiring the registration, the court explained that the defendant "was physically dangerous to the public, at serious risk to re-offend, and not being treated (sic) for his sex compulsion." Mosley appealed the imposition of the registration.
In this case, the jury made findings only concerning the defendant's guilt or innocence as to the sex crimes for which he was charged, and the lesser-related offense of simple assault. The jury did not make any findings concerning the facts necessary to support the imposition of Sex Offender registration. While some of Mosley's claims were outright rejected by the Court of Appeal, his assertion that the registration constituted cruel and unusual punishment and violated his right to a jury trial on all matters which incur potential punishment got the Court's attention.
In 1999, the United States Supreme Court in Jones v US, 526 US 227 (1999), scrutinized the interplay between the Sixth Amendment's right to a jury trial and the laws directing judges to engage in their own fact-finding when determining to impose "enhanced" punishment at sentencing. A year later, the decision in Apprendi v New Jersey, 530 US 466 (2000), was handed down. In Apprendi, the Supreme Court reversed the defendant's conviction for unlawful possession of a weapon after the defendant entered a plea of guilty. The trial court imposed a sentence enhancement based on its own findings that the defendant's crime was racially motivated. The judge was authorized by the New Jersey statute to impose a sentencing enhancement based upon his own findings. The Supreme Court declared that it was unconstitutional for a legislature to remove from the jury the assessment of facts that increased the prescribed range of penalties for a criminal defendant. The Court held "that such facts must be established by proof beyond a reasonable doubt." The string of decisions that followed Apprendi has reinforced this holding.
In Mosley, the Court of Appeal determined that the Penal Code section 290 Sex Offender registration, as well as aspects of the so-called "Jessica's Law" constituted "punishment." Jessica's Law, a part of the California Penal Code since 2007, imposes certain grave restrictions on those who are required to register as Sex Offenders. One of Jessica's Law's provisions, codified in Penal Code section 3303.5 (b), prohibits Penal Code section 290 Sex Offender registrants from residing within 2000 feet of any public or private school or park where children may gather. On its face, the law intends to protect children and is regulatory in nature. However, the Court of Appeal in Mosley reasoned that "the residency restriction is distinctly punitive." The Court further stated: "Here, the imposition of residency restrictions punished the defendant for his original offense. The court required the defendant to register as part of his sentence on the misdemeanor conviction . . . [I]t constitutes additional punishment for this misdemeanor."
The Court of Appeal also reasoned that the lower court decision resulted in a constitutional due process violation: "[B]ecause the court imposed discretionary sex offender registration, not registration mandated by statute, imposition of the residency restrictions upon the defendant increased the penalty for his misdemeanor offense beyond the statutory maximum."
The Court of Appeal relied on Apprendi in holding that the Due Process Clause of the 14th Amendment to the United States Constitution requires that any fact that increases the penalty for a state crime beyond the prescribed statutory maximum - other than a prior conviction - must be submitted to a jury and proven beyond a reasonable doubt.
The Court of Appeal further noted: "Had the facts [that warranted the registration] were found by the jury . . . the court unquestionably would have acted within its discretion by requiring registration." But by grounding the registration in its own findings, the court bypassed the due process requirements conferred by the U.S. Constitution. As a result, Mosley has been freed from the harsh restrictions of Penal Code section 290 Sex Offender registration.
Mosley's personal victory was undoubtedly a great one for him. However, even more significant is the promise of justice following the Mosley decision to the many others who are or will be standing in Mosley's shoes in all our local courts throughout California.