Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of San Bernardino County,Nos. WHC3932 and FSB11402, Bob N. Krug and Stanley William Hodge, Judges. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Brissman and Schlueter, Peter B. Schlueter and Jon R. Schlueter for Petitioner.
Daniel E. Lungren and Bill Lockyer, Attorneys General, David Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and William M. Wood, Deputy Attorneys General, for Respondent.
OPINION
WARD, J.
Petitioner William M. seeks a writ of habeas corpus that would relieve him of the requirement to register as a sex offender under Penal Code section 290. He contends that the application to him of the July 8, 1996, amendment to section 290.5 and the public notification provision of section 290.4 violates constitutional ex post facto principles. We issued an order to show cause to consider this challenge. We reject petitioner's ex post facto claim and deny the petition. We conclude that neither provision imposes punishment on him within the meaning of the state ex post facto clause, California Constitution, article I, section 9, or the United States Constitution, article I, section 10. FACTS AND PROCEDURAL BACKGROUND
This court granted petitioner's request that the opinion be issued without publishing his full name. We did so in recognition that publication of his name could well result in even more notoriety than if he had chosen not to pursue this litigation. Such an argument has been recognized as a valid reason to permit a party to proceed anonymously. (See Roe v. Ingraham (S.D.N.Y. 1973) 364 F.Supp. 536, 541, fn. 7.) Courts have allowed plaintiffs to proceed anonymously in matters of a sensitive nature. (Rowe v. Burton (D. Alaska 1994) 884 F.Supp. 1372, 1385-1387.) Indeed, use of a pseudonym follows the practice of many of the cases cited in this opinion dealing with sex registration laws. (Contra Rowe v. Burton.) We emphasize, however, that persons convicted of sex offenses are not ordinarily entitled to the "cloak of anonymity," and that nondisclosure of his name is warranted only because of petitioner's special situation.
All further statutory references are to the Penal Code unless otherwise stated.
In June 1979, petitioner was convicted of a violation of section 288a, subdivision (f). He served six years in Atascadero State Mental Hospital as a mentally disordered sex offender, and was discharged in December 1985.
Petitioner alleges in the petition that he was convicted of a violation of section 288. Respondent alleges in the return that an examination of his records reveals that the conviction was for violation of section 288a, subdivision (f). This allegation is deemed admitted because petitioner did not dispute it in his traverse. (In re Lawler (1979) 23 Cal.3d 190, 194 [151 Cal.Rptr. 833, 588 P.2d 1257].) In any case, both sections are specified in section 290.4, subdivision (a) (1), so that a certificate of rehabilitation would not relieve him of the obligation to register under 290.
Because of his conviction petitioner was required to register as a sex offender under section 290.
Before July 8, 1996, section 290.5 provided that a person required to register under section 290 could initiate proceedings under section 4852.01 et seq. to obtain a certificate of rehabilitation and, upon obtaining such a certificate, was relieved of any further duty to register as a sex offender.
Effective July 8, 1996, section 290.5 was amended to provide that persons convicted of certain specified sex offenses, including section 288a, must continue to register despite the issuance of a certificate of rehabilitation.(section 290.5, subd. (a).) However, such a person could still be relieved of the registration requirements if he or she obtains a full pardon or meets other specified requirements, not here relevant. (section 290.5, subd. (b).) Pursuant to sections 4852.14 and 4852.16 a certified copy of the certificate of rehabilitation is transmitted to the Governor and constitutes an application for a full pardon.
On June 25, 1996, petitioner applied for a certificate of rehabilitation from the San Bernardino County Superior Court. The court granted the certificate on October 11, 1996, after the effective date of the amendment to section 290.5. in his traverse, petitioner indicates that in December 1998, Governor Wilson rejected his application for a pardon.
ANALYSIS
I. Applicable Ex Post Facto Principles
The United States Supreme Court has held that the ex post facto clause of the United States Constitution prohibits three legislative categories: (1) legislation which punishes as a crime an act previously committed, which was innocent when done; (2) legislation which makes more burdensome the punishment for a crime, after its commission; or (3) legislation which deprives one charged with a crime of any defense available according to the law at the time when the act was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715,2719, 111 L.Ed.2d 30].) We apply the identical analysis to the state ex post facto clause. (People v. Helms (1997) 15 Cal.4th 608, 614 [63 Cal.Rptr.2d 620, 936 P.2d 1230].)
Petitioner claims both sections 290.5 and 290.4 come within the second Collins category: he contends that these provisions retroactively increased the punishment for his crime. It is important to note that "punishment" as used in Collins does not mean a mere "disadvantage." Collins held that the ex post facto clause does not prohibit every kind of burdensome consequence, but prohibits only a more burdensome punishment. (People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal.Rptr.2d 850, 840 P.2d 955].) "The proper inquiry post- Collins is not whether the law results in a disadvantage to the person affected by it but rather whether it increases the penalty by which a crime is punished." (People v. Fioretti (1997) 54 Cal.App.4th 1209, 1213 [63 Cal.Rptr.2d 367].)
A two-part approach has emerged for determining whether legislation should be classified as punitive for ex post facto as well as for double jeopardy purposes. (United States v. Ursery (1996) 518 U.S. 267 [116 S.Ct. 2135, 135 L.Ed.2d 549]; Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072, 138 L.Ed.2d 501]; Hubbart v. Superior Court (1999) 19 Cal.4th1138 [81 Cal.Rptr.2d 492, 969 P.2d 584].) We look first to the legislature's own characterization of the law as either punitive or regulatory. (Kansas v. Hendricks, supra, 521 U.S. at p. 361 [117 S.Ct. at pp. 2081-2082].) Second, we analyze the effects of the statute. even if the Legislature has either expressly or impliedly indicated its purpose was not punitive, an ex post facto violation may be established by demonstrating that the statute is so punitive either in purpose or effect as to negate the stated intent. (Ibid.) On the other hand, a statute that has primarily a legitimate regulatory purpose is not considered punitive even though it might also have a secondary punitive purpose and might disadvantage the persons affected by it. (People v. Fioretti, supra, 54 Cal.App.4th 1209, 1214.)
II. The Registration Requirement Does Not Amount to Punishment
Petitioner first argues that the amendment to section 290.5 violates the ex post facto clause because it inflicts a greater punishment upon him than existed at the time of the offense. More exactly, he contends that the amended section 290.5 prolongs the requirement to register until such time as the Governor grants a full pardon to the person so convicted. Petitioner points to language in In re Reed (1983) 33 Cal.3d 914 [191 Cal.Rptr. 658, 663 P.2d 216], to the effect that the registration requirement under section 290 constitutes punishment. Therefore, he urges, prolonging the registration requirement prolongs punishment.
In re Reed does not support the broad rule that petitioner claims. We agree with the court in People v. Fioretti, supra, 54 Cal.App.4th 1209, 1216, that "... the holding in Reed is more properly limited to its particular circumstances and to the legal issue addressed by the court in that case." Reed concerned the question whether the registration requirement of section 290 violates the state constitutional prohibition against cruel or unusual punishment when applied to persons convicted of misdemeanor lewd conduct under section 647, subdivision (a). The California Supreme Court focused on the relationship between the defendant's offense and the mandatory registration requirement. Although the court acknowledged that registration requirements had not ordinarily been regarded as punishment, it noted that California's registration laws were relatively severe in comparison with other jurisdictions. That factor was weighed against the relatively trivial nature of the defendant's crime and his otherwise exemplary conduct. We are persuaded that Reed cannot be applied to petitioner's ex post facto claims because, as noted by the court in People v. Fioretti, supra, 54 Cal.App.4th 1209, 1216, since the time of that holding "sex offender registration laws [have become] a widely accepted means of aiding law enforcement authorities in preventing and investigating sex crimes, and have been found by courts addressing the issue to have a legitimate regulatory purpose."
Moreover, the California supreme Court has signaled in analogous contexts that it might not view the registration requirement of section 290 as punishment for ex post facto purposes. In People v. McVickers, supra, 4 Cal.4th 81, the court held that section 1202.1, requiring blood testing for AIDS and disclosure of results under certain circumstances for persons convicted of designated crimes, may be applied to persons whose crimes were committed before the statute's effective date. It held that neither the blood test nor the disclosure provisions constitute punishment under the ex post facto clauses of the state and federal Constitutions. Its analysis included a review of post- Collins cases from other states, observing that these cases have looked primarily to the identified purpose and then to the effect of a statute to determine if it is punitive. It cited with apparent approval State v. Noble (1992) 171 Ariz. 1711 [829 P.2d 1217] which "held that a statute requiring registration of sex offenders did not violate the ban on ex post facto legislation as applied to a defendant whose crimes preceded its enactment because the overriding purpose of the statute was 'facilitating the location of child sex offenders by law enforcement personnel,' a purpose unrelated to punishment." (People v. McVickers, supra, 4 Cal.4th 81, 87.)
People v. Fioretti, supra, 54 Cal.App.4th 1209, lends further support to our conclusion that the amendment to section 290.5 does not violate the ex post facto prohibition when applied to petitioner. The defendant in that case had been convicted of a violation of section 288, subdivision (a), and sentenced to three years' formal probation, subject to various conditions including the requirement that he register as a sex offender under section 290. He registered in December 1981. At the time of those events, the law had provided that a probationer who had fulfilled the conditions of probation or received an early discharge from probation could have his conviction expunged from the record and be relieved from all penalties and disabilities resulting from the offense. In 1983, the superior court terminated defendant's probation and granted him a record clearance pursuant to section 1203.4. By the time he obtained this clearance, however, section 290.1, effective January of 1982, had been enacted. Section 290.1 provided that the registration requirement continue notwithstanding a section 1203.4 record clearance.
The defendant in Fioretti argued that he could not be prosecuted for failing to reregister. He argued that section 290.1 could not be applied to him without violating constitutional ex post facto protections because it was enacted after he had committed his original offense in 1980 and it retroactively increased the punishment for that offense. The Court of Appeal rejected this claim, pointing out that when defendant petitioned the court under section 1203.4, section 290.1 was the law, and had been the law for over a year. Thus, the superior court was then without power to relieve him from the continuing registration requirement. Because the defendant was already subject to the registration requirement, section 290.1 did not impose any additional requirement.
The defendant further contended that section 290.1 had deprived him of the opportunity to be relieved entirely of the requirements of section 290, and that this disability constituted increased punishment for purposes of the ex post facto clause. The court rejected this argument, holding that the statute did not increase the penalty nor affect his sentence. Although the registration may be a "disadvantage," it could not be considered punitive in light of its regulatory purpose.
Petitioner insists that continuing to require him to register does violate the ex post facto clause because he has been rehabilitated. We disagree. Section 290.5 allows the Governor to review determinations that certain sex offenders have been rehabilitated. There is nothing within the ex post facto clause which confers upon petitioner an unalterable right to have the procedures for obtaining relief from the registration requirement remain the same as the method in existence on the date he committed his crime. (In re Arafiles (1992) 6 Cal.App.4th 1467, 1487 [8 Cal.Rptr.2d 492] [constitutional amendment granting Governor power to review parole decisions did not violate ex post facto rule as applied to prisoner whose crime was committed before amendment was adopted].)
Here, petitioner did not obtain a certification of rehabilitation until after the effective date of the amendment. Section 290.5 has thus not been applied to him retrospectively. In addition, the registration requirement is regulatory, not punitive. It does not impose a more burdensome punishment on him, and thus does not violate the prohibition against ex post facto laws.
III. "Megan's Law," Concerning Public Disclosures About RegisteredSex Offenders, Does Not Impose Punishment
Section 290.4, added in 1994 and amended in 1996 and 1997 is California's version of the so-called "Megan's Law"; it provides for the collection and disclosure of information on persons required to register as sex offenders. Section 290.4 allows limited public access to sex offender registration information through a 900 telephone number and a CD-ROM database. Petitioner claims these public disclosure mechanisms constitute punishment, and thus, violate the ex post facto clause.
Petitioner concedes that he is not subject to the community notification procedures under section 290, subdivisions (m) through (q), and, therefore, narrows his challenge to the disclosure provisions of section 290.4.
Again, we reject petitioner's ex post facto challenge. The express intent of the Legislature in enacting this law is regulatory, and it is neither punitive in purpose nor in its effect, so as to overshadow its regulatory aims. (Kansas v. Hendricks, supra, 521 U.S. 346, 361 [117 S.Ct. 2072, 2081-2082].)
The pertinent provisions of the statute require the Department of Justice (Department) to compile the address and other specified information, categorized by community of residence and zip code, on persons required to register for conviction of various types of sex offenses. The Department must operate a 900 telephone number that members of the public may call to inquire whether a particular individual is listed on the registry. Callers must (1) be at least 18 years old, (2) identify themselves, and (3) provide specified information which reasonably identifies the registrant. The Department may disclose the registrant's zip code and describe the specific crimes for which registration is required, but may not otherwise disclose the registrant's street address or criminal history. (section 290.4, subd. (a) (3).) Callers to the 900 number hear a preamble which includes a warning that it is illegal to use the information obtained to commit a crime against any registrant or to engage in illegal discrimination or harassment against any registrant. (section 290.4, subd. (a) (5) (C) (v).)
Effective July 1, 1997, the statute requires the Department to provide on CD-ROM or other electronic medium the collected information to specified law enforcement agencies. (section 290.4, subd. (a) (4).) These agencies must, and other law enforcement agencies may, make the CD-ROM or other electronic medium available for viewing by adults. An applicant must provide identification, sign a register, and sign a statement containing specified information, including a statement that he or she is not a registered sex offender, and may be required to provide an articulable purpose for seeking the information. (section 290.4, subd. (a) (4).)
Use of the information is limited to protecting a person at risk. (section 290.4, subd. (e) (1).) The statute provides an array of penalties for misuse of the information obtained. Thus, persons who use the information in order to commit a crime are subject to additional criminal penalties. (section 290.4, subd. (b) (1) and (2).) Unauthorized copying, distributing, disclosing, or receiving the information from a CD-ROM is punishable as a misdemeanor as is unauthorized removal or destruction of the CD-ROM or other electronic medium from the offices of a law enforcement agency. (section 290.4, subd. (c) and (d).)
The Legislature has expressly stated that its purpose in enacting and amending section 290.4 is regulatory and not punitive:
"The Legislature finds and declares the following: "(a) Sex offenders pose a high risk of engaging in further offenses after release from incarceration or commitment, and protection of the public from these offenders is a paramount public interest. "(b) It is a compelling and necessary public interest that the public have information concerning persons convicted of offenses involving unlawful sexual behavior collected pursuant to Sections 290 and 290.4 of the Penal Code to allow members of the public to adequately protect themselves and their children from these persons. "(c) Persons convicted of these offenses involving unlawful sexual behavior have a reduced expectation of privacy because of the public's interest in public safety. "(d) In balancing the offenders' due process and other rights against the interests of public security, the Legislature finds that releasing information about sex offenders under the circumstances specified in this act will further the primary government interest of protecting vulnerable populations from potential harm. "(e) The registration of sex offenders, the public release of specified information about certain sex offenders pursuant to Sections 290 and 290.4 of the Penal Code, and public notice of the presence of certain high-risk sexual offenders in communities will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems that deal with these offenders. "(f) To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of sex offenders, for the public release of specified information regarding certain more serious sex offenders, and for community notification regarding high-risk sex offenders who are about to be released from custody or who already reside in communities in this state. This policy of authorizing the release of necessary and relevant information about serious and high-risk sex offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive. "(g) The Legislature also declares, however, that in making information available about certain sex offenders to the public, it does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense. While the Legislature is aware of the possibility of misuse, it finds that the dangers to the public of nondisclosure far outweigh the risk of possible misuse of the information. The Legislature is further aware of studies in Oregon and Washington indicating that community notification laws and public release of similar information in those states have resulted in little criminal misuse of the information and that the enhancement to public safety has been significant." (Stats. 1996, ch. 908, section 1.)
Petitioner recognizes that the intent of the Legislature in enacting section 290.4 was regulatory, but he asserts that there is clear proof that it has a punitive effect. He claims that disclosure of registrant's information, whether by CD-ROM or the 900 telephone number, is virtually unlimited and that such disclosure may subject registrants to public stigma and ostracism. Although the custodian of the CD-ROM may require an "articulable reason" for viewing the information, this condition is not mandatory. Moreover, defendant urges, this condition could be easily met by any person simply by stating that he or she is a concerned parent, or a journalist seeking to inform the public of registrants residing in the community.
Petitioner , building on the premise of virtually unrestricted public access to the sex offender registry, argues that such access is excessive and goes beyond that necessary to promote public safety. Thus, he concludes, the disclosure provisions effectively do constitute more burdensome punishment for his crime. (Citing State v. Myers (1996) 260 Kan. 669 [923 P.2d 1024, 1041].) Petitioner's reliance on State v. Myers is misplaced. The Kansas "Megan's Law" imposed no restrictions on anyone who inspected the sex offender registry. "The information could be routinely published in the newspaper or otherwise voluntarily disseminated by anyone. The practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment. We find that the KSORA public disclosure provision does impose an affirmative disability or restraint. Unrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism." (Ibid.) Thus, the Kansas Supreme Court held that the public notification provisions of that state's "Megan's Law" violated ex post facto prohibitions when applied to persons who had committed an offense before it became effective.
Section 22-4909 of the Kansas offender registration act (KSORA), Kansas Statutes Annotated section 22-4901 et seq., merely provides that statements or any other information required by the act shall be open to inspection in the sheriff's office by the public and are subject to the provisions of the Kansas open records act, Kansas Statutes Annotated section 45-215 et seq., except for information relating to the victim.
Section 290.4 contains protections not present in the Kansas law. Callers to the 900 number must provide identifying information, are warned against misuse of the information, and are not given the registrant's exact address. Law enforcement officers may provide more extensive community notification when they determine the person requesting information may be at particular risk from a sex offender (section 290, subd. (m)), or in cases of high-risk sex offenders. (section 290, subd. (n).) Protections against misuse are similar to those contained in, e.g., the New York statute, and which the court in Doe v. Pataki (2d Cir. 1997) 120 F.3d 1263,1278, found to be significant factors supporting the "legislature's stated regulatory and prospective intent." In providing these protections, section 290.4 is clearly distinguishable from the Kansas statute considered in State v. Myers, supra, 923 P.2d 1024, which allowed for unrestricted access and use by the public of sex offender registration information.
In addition, petitioner criticizes the legislation for failing to contain any provision attempting to evaluate the likelihood that a particular person will commit a new offense. For example, the public may have access to information showing that a 90-year-old, bedridden man is a sex offender even though he poses no significant risk of reoffending. Of course, petitioner maintains that, based on his certificate of rehabilitation, he has been found to pose no risk to the public. Further, he contends that there is no evidence supporting the Legislature's finding that sex offenders pose a high risk of recidivism. Petitioner addresses this claim to the wrong audience. (6)The courts must defer to the Legislature's findings in the absence of a showing that they are arbitrary or unreasonable. (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 568 [63 Cal.Rptr.2d 467, 936 P.2d 473].) Petitioner has made no such showing.
Several states have enacted "Megan's Law" statutes in which "the extent of notification is carefully calibrated to, and depends solely upon, the offender's perceived risk of re-offense: the greater the likelihood of re-offense, the broader and more detailed the notification to the public." (Doe v. Pataki, supra, 120 F.3d 1263, 1278 [analyzing New York's version]; also see Doe v. Poritz (1995) 142 N.J. 1 [662 A.2d 367, 36 A.L.R.5th 711].) The provision of such an assessment bears out the legislation's stated goals of protecting the public and facilitating future law enforcement efforts. (Doe v. Pataki, supra, at pp. 1277-1278.) However, the absence of a formalized assessment procedure is not sufficient by itself to demonstrate the statute's punitive purpose and effect. In Doe v. Pataki, supra, 120 F.3d 1263, 1278, the court also considered that the legislation controlled the extent of notification and provided protections against misuse of the information, including a provision making unauthorized release of the information a misdemeanor.
Under both the New York and New Jersey law, sex offenders are categorized in a three-tiered scale based on an assessment of their likelihood of reoffending. (See N.J. Stat. Ann. sectionections 2C: 7-1 to 2C: 7-11; N.Y. Correct. Law section 168.)
Section 290.4 contains similar provisions. In fact, although section 290.4 does not have a structured risk assessment procedure it does provide for more extensive notification in cases where an individual may pose a higher risk to the community. As noted earlier, petitioner concedes he is not subject to the community notification provisions because he is not a high-risk offender.
We conclude that the provisions of section 290.4 controlling the extent of disclosure and supplying protections against misuse of information support its expressed regulatory intent. The issue then is whether the notification provisions are nonetheless punitive in fact. Petitioner contends that the protections against the misuse of information are meaningless. He hypothesizes that, if a person purports to act "to protect the public," no use will be considered a "misuse" of the information. He speculates, for example, that persons might picket a registrant's home causing his landlord to evict him, or that an employer might simply decide not to hire a registrant out of concern for his or her patrons. The Legislature has expressly indicated that the information should not be used for purposes of harassment or discrimination. We cannot presume that blatant acts of harassment would not be considered a misuse of the information obtained under section 290.4.
The court rejected a similar claim in Doe v. Pataki, supra, 120 F.3d 1263. Some sex offenders challenged the New Jersey law, citing examples of physical assaults on sex offenders as well as public shunning, picketing, loss of employment, and eviction. The court held, however, that these acts by private persons could not be attributed to the "Megan's Law," because they were not consequences that the operation of the act contemplated or condoned. "[A]lthough it is foreseeable, indeed intended, that persons notified of the presence of a convicted sex offender in their midst will take some action to protect themselves and their families, such as warning their children not to socialize with the offender, illegal actions by members of the public, such as physical attacks against the offender, are not consequences that the operation of the [statute] contemplates or condones." (Id., at p. 1280, italics omitted.) The court also noted that much of the information was publicly accessible before the enactment of "Megan's Law."
"Notification may well subject offenders to humiliation, public opprobrium, ostracism, and the loss of job opportunities. We actively weigh these detriments to offenders. But our inquiry into the law's effects cannot consider the possible 'vigilante' or illegal responses of citizens to notification. Such responses are expressly discouraged in the notification itself and will be prosecuted by the state. [Citation.] Indeed, courts must presume that law enforcement will obey the law and will protect offenders from vigilantism." (Russell v. Gregoire (9th Cir. 1997) 124 F.3d 1079, 1092.)
In enacting California's version of "Megan's Law," the Legislature has expressly stated it has weighed the possible detriment to offenders against the requirements of public safety. It has concluded that public safety interests far outweigh the risk of possible misuse of the information. It would be presumptuous of this court to strike a different balance. Petitioner has not carried his "heavy burden" to demonstrate that section 290.4 is so punitive in purpose or effect as to override its regulatory purpose. (Kansas v. Hendricks, supra, 521 U.S. at p. 361 [117 S.Ct. at pp. 2081-2082].) DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is denied.
Hollenhorst, Acting P. J., and McKinster, J., concurred.