P. v. Mosley 11/19/08 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G038379

Case Date: 03/18/2009

Preview:Filed 11/19/08

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. STEVEN LLOYD MOSLEY, Defendant and Appellant. G038379 (Super. Ct. No. 05NF4105) OPINION

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed as modified. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.

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. Here, the jury acquitted defendant Steven Lloyd Mosley of the only sexual offense charged against him. Yet the court made its own findings and ordered defendant to register as a sex offender. By itself, registration is regulatory and remedial, not punitive. (People v. Castellanos (1999) 21 Cal.4th 785, 796 (Castellanos).) But Jessica`s Law increased the punitive effect of sex offender registration by imposing a residency restriction. It restricts registered sex offenders from residing within 2,000 feet of a school or park where children gather, potentially banishing them from whole neighborhoods or even entire cities. Jessica`s Law survives this opinion untouched. We note only that its residency restriction increases the penalty for the underlying offense beyond the statutory maximum, and so the facts supporting sex offender registration must be found beyond a reasonable doubt by a jury. Imposing a residency restriction based on judicial factfinding violates the right to a jury trial as construed by the United States Supreme Court. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).)
1

(Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, pp. 127-138, at <http://vote2006.sos.ca.gov/voterguide/pdf/English.pdf> [as of Nov. 12, 2008]; see Pen. Code,

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