TAYLORThe People’s Petition for ReviewCal.October 23, 2012- 2 InmneVOLASnf the State of California SUPREME COURT FILED WILLIAM TAYLOR,ET AL., Case No. OCT 23 2012 In re Frank A. McGuire Clerk On Habeas Corpus Deputy Fourth Appellate District, Division One, Case No. D059574 San Diego County Superior Court Case Nos. HC19742 (Taylor), HC19731 (Todd), HC19612 (Briley), HC19743 (Glynn) The Honorable Michael D. Wellington, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General DONALDE. DE NICOLA Deputy State Solicitor General JENNIFER A. NEILL Senior Assistant Attorney General PHILLIP LINDSAY Supervising Deputy Attorney General GREGORYJ. MARCOT Deputy Attorney General State Bar No. 186546 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2606 Fax: (619) 645-2581 Email: Gregory.Marcot@doj.ca.gov Attorneysfor Matthew Cate, Secretary ofthe California Department ofCorrections and Rehabilitation TABLE OF CONTENTS Page Petition for REVICW 0... ceesesseeereesestecereeteveeeccsneesersassneesseneeseseeasenneeeceeeey 1 Issue for Review......sesscssasetsessuseesseee soseceeceeceauuuuvesssecesseveveseuensteeesreesceseseuuanenes 1 Statement Of the Case .......cccecessecsesecseessseseesssescessensnensssecissesesseeeessseesaseeersgs 2 Reasonsfor Granting REVICW........ccceecccssesneceeseneeeneeneeneeetenereeenaeeenseaeeernseaees 5 The appropriate standard for reviewing the constitutionality of the residency restriction is an IMpoOrtant QUESTION. 0... eee eeeeceeteeeetteeeteeeeneeeeeneetesersaserraeenaees 5 CONCLUSION 00... .ccceeessesssneeceeessesseeeernecessaeecseeeeeseetenarersetesenadeuseeasesseaeeeensensentens 8 Certificate of Compliance............ sesssusseveususseuescsessseseasesenenecessseseseseasseseseseecens 9 TABLE OF AUTHORITIES Page CASES Inre E.J. (2010) 47 Cal4th 1258 ..cccsceesessseneeescteteseeeetersensnssereessesensesenenens 2, 3, 4,5 Inre Pham (2011) 195 Cal.App.4th 681 occcccsseseecceetetenererereranserssssesseresseseesseeeens 6 Inre William Taylor, etal. (Sept. 12,2012) Cal.App.4th _ (SHip OpM.)....eereeteterseseeeeeeneenes 1 Terhune v. Superior Court (1998) 65 CalApp.4th 864... cceecsensseneeeneesieneererenesenerersseieneserssansnenegens 5 STATUTES | Penal Code § 3003.5, SUD. (BD)... eeeersreceseseseseesesesesesereenseensetensisnensasnereereseeesesenens 2,3,5 OTHER AUTHORITIES http://www.sos.ca.gov/elections/sov/2006_general/contents.htm...2 ii PETITION FOR REVIEW TO THE HONORABLETANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, ANDTO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), appellant in the court below,petitions this Court to grant review of the published decision of the Fourth District Court of Appeal, Division One, filed September 12, 2012, in In re William | Taylor, et al. (Sept. 12,2012) — Cal.App.4th (Slip opn.). This case presents important issues pertaining to the constitutionality of a residencyrestriction adopted in 2006 as part of Proposition 83 (Jessica’s Law), which prohibits registered sex offenders from residing within 2,000 feet of schools or parks where children regularly gather. The Court of Appeal concludedthat the blanket enforcementofthe restriction was unconstitutional as applied to parolees in San Diego County. In reaching this conclusion, the court took into consideration the scarce supply of compliant housing in San Diego County andthat parole authorities are required to enforce it againstall registered sex offenders regardless oftheir individual circumstances. Review ofthis matter is warrantedto settle important questions of law and to provide guidance to other counties facing similar challenges to this residency restriction. ISSUE FOR REVIEW Did the Court of Appeal apply an appropriate standard of review in assessing petitioners’ as-applied challenges to Jessica’s Law in San Diego County? STATEMENT OF THE CASE In November 2006, the voters of California approved Proposition 83, commonly called Jessica’s Law.' Among other things, the proposition madeit illegal for registered sex offenders “to reside within 2000feet of any public or private school, or park where children regularly gather.” This residencyrestriction is codified in Penal Code section 3003.5, subdivision (b). The drafters of Jessica’s Law informed voters that this provision would establish “predator free zones around schools and parks to prevent sex offenders from living near where .. . children learn and play.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) argument in favor of Prop. 83, p. 46.) CDCR’s Division of Adult Parole Operations began enforcing the residencyrestriction againstall registered sex offenders on parole, regardless of whethertheir offenses were against children, and regardless of whether compliant housing was available—as the law requires. Sex- offender parolees whofailed to comply with the residency restriction faced incarceration. In Inre E.J. (2010) 47 Cal.4th 1258, this Court was presented with ex post facto and as-applied challengesto the residencyrestriction. After rejecting the ex post facto claims, the Court addressed the as-applied challenges:“Petitioners further contend section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights underthe federal Constitution.” (/d. at p. 1280.) The Court noted that the as-applied claims were “considerably more complex,” explaining: 1 (See http://www.sos.ca.gov/elections/sov/2006_general/contents.htm [as of July 7, 2011].) Petitioners are notall similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the supply of housing in compliance with section 3003.5(b) available to them during their terms of parole—a mattercritical to deciding the merits oftheir as applied constitutional challenges—isnotsufficiently established by the declarations and materials to permit this court to decide the claims.” (id. at p. 1281.) The Court concluded that evidentiary hearings would be neededto establish the facts to decide each claim: Thetrial courts .. . are manifestly in the best position to conduct such hearings and find the relevant facts necessary to decide the claims with regard to each such jurisdiction. These facts would include, but are no necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residency andits proximity to the nearest “public or private school, or park where children regularly gather” (§ 3003.5(b)); a factual assessmentofthe compliant housing available to petitioners and similarly situatedregistered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residencyrestrictions are currently being enforced in each particular jurisdiction; and a complete record of the protocol CDCRis currently following to enforce section 3003.5(b) in those respective jurisdictions. (Id. at pp. 1283-1284.) After E.J/., as-applied challenges were broughtin several counties, including San Diego, Sacramento, Orange, Riverside, Los Angeles, Contra Costa, and San Bernardino. Petitioners Taylor, Briley, Glynn, and Todd are four of about 140 registered sex-offender parolees who challenged the application ofthe restriction in San Diego County.” * Taylor was convicted in 1991 of sexualassault against an adult woman. Glynn was convicted in 1989 of sexual battery against an adult woman. Briley was convicted in 1988 of a lewd and lascivious act on a (continued...) Following an eight-day evidentiary hearing, the San Diego County Superior Court ruled that the residency restriction was unconstitutional as applied in San Diego County. Evidence presented at the hearing established that about 25 percent ofresidential housing in San Diegois compliantwith the residencyrestriction, though the Court of Appeal below noted that most of those parcels are single-family residences that are not financially viable options for most parolees. Just 3 percentofall multifamily housing is compliant. At any given time, just 5-8 percent of multifamily housing wasavailable to rent. The court found that the blanket application ofthe residencyrestriction forced large groups of paroleesinto homelessness, thereby impinging on their constitutionalrights to travel, establish a home,and to privacy. The court stated that the residency restriction is a “blanket proscription, blindly applied to all registered sex offenders on parole without consideration of the circumstances or history of the individual case.” . CDCRappealed. The Fourth Appellate District affirmedthe superior court’s order. The appellate court beganits analysis by looking to E./., whichstates that “the threshold question commontoall of petitioners’ remaining as-applied challenges to section 3003.5(b) is whether the section, whenenforced as a statutory parole condition against registered sex offenders, constitutes an unreasonable parole condition to the extentit infringes on such parolees’ fundamental rights.” (Slip opn., at pp. 21, 25, quoting In re E.J., supra, 47 Cal.4th at p. 1282, fn. 10.) The appellate court further noted that parole conditions are required to be reasonable since parolees retain constitutional protection against arbitrary and oppressive (...continued) child under 14, her daughter. And in 1981, 15-year-old Todd was convicted of molesting his ten-year-oldsister. official action. Ud. at p. 22, citing In re EJ, supra, 47 Cal.4th at pp. 1282, 1283, fn. 10; Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874.) The Court of Appeal found that the blanket residencyrestriction, as applied in San Diego County, is excessive and unduly broad inrelation to its stated objective—theprotection of children—becauseit “eliminates nearly all existing affordable housing in San Diego County” and becauseit treats all parolees the same regardless of their risk of reoffending or whethertheir crimes involved the victimization of children or adults. (Slip opn. at pp. 35-36.) In affirming the superior court order, the Court of Appealreiterated that “[a]gents may, after consideration of a parolee’s particularized circumstances, impose a special parole condition that mirrors section 3003.5(b) or one that is moreorless restrictive. It is only the blanket enforcement—thatis, to all registered sex offender parolees without consideration of the individual case—thatthetrial court prohibited and we uphold.” (/d. at p. 37 [italics in original].) REASONSFOR GRANTING REVIEW This Court should grant review to clarify the appropriate standard of review of as-applied challenges to the residencyrestriction of Jessica’s Law. THE APPROPRIATE STANDARD FOR REVIEWING THE _. CONSTITUTIONALITY OF THE RESIDENCY RESTRICTIONIS AN IMPORTANT QUESTION. Although £.J/. instructs that the threshold question regarding petitioners’ as-applied claims is whether the residencyrestriction _ “constitutes an unreasonable parole condition to the extentit infringes on such parolees’ fundamental rights” and that the constitutional inquiry should be guided by the principle that parolees’ rights are often lawfully circumscribed, it does not specify what standard ofjudicial review is appropriate. (See 47 Cal.4th at p. 1282, fn. 10.) The Court of Appeal applied a reasonableness analysis—similar to analyzing a discretionary parole condition imposed on an individual parolee. Finding the rights at issue to be fundamental, its analysis included an assessment of whether the blanket application ofthe residencyrestriction was narrowlytailored with respect to the purpose oftherestriction and the circumstances of each | parolee. But a question exists as to whether the court should have used a different standard because theresidencyrestriction at issue arose from statute, instead of a condition individually imposed by the parole authority in the exercise ofits judgment. Additionally, a question exists as to whether the court applied the correct standard of review inlight of the fact that Jessica’s Law does not completely banish parolees from living | anywhere in the counties to which they were paroled. The Second District Court of Appeal in Jn re Pham (2011) 195 Cal.App.4th 681, revieweda preliminary stay of enforcementof Jessica’s Law in Los Angeles County that had been issued before the as-applied claims were adjudicated at an evidentiary hearing. In assessing the likelihood that petitioners would prevail on the merits, Pham seemsto frame the issue whetherpetitioners can establish a cognizable banishment claim. (/d. at pp. 685-690.) Pham concluded that exclusion from a part of a county does not constitute a traditional banishment claim. (/d.at p. 698.) The court acknowledged that petitioners were claiming that Jessica’s Law barred them from living in such a substantial portion of the county thatit had practical effect that is indistinguishable from banishment. (/bid.) The court ruled, however, that at the preliminary stage ofthe case, there was“insufficient evidenceto find that parolees face banishment from the county, no matter how broadly that term is construed.” (/bid.) The Fourth District Court of Appeal below heldthat the residency restriction prevented sex-offender parolees from living in large areas of San Diego County and thus were “effectively banished” from the county. But the Court of Appeal’s holding—whichis predicated on something less than complete expulsion from the county—is in apparent tension with Pham’s view of what constitutes a traditional banishment claim. Because many petitions challenging the residencyrestriction are pending throughout the state, this petition presents an important question regarding the contours of the proper constitutional analysis that should apply. This Court should grant review to clarify the appropriate standard of review, whetherthe rights asserted are fundamental, as well as the boundaries andlevel of protection the Constitution affords under these circumstances. Doing so will provide guidance to the superior courts in which similar as-applied challenges are pending. CONCLUSION For these reasons, the petition for review should be granted. Dated: October 22, 2012 $D2012704209 70634476.doc Respectfully submitted, KAMALAD. HARRIS ' Attorney General of California DANE R.GILLETTE. ChiefAssistant Attorney General DONALD E. DE NICOLA Deputy State Solicitor General JENNIFER A. NEILL Senior Assistant Attorney General PHILLIP LINDSAY yGeneral Attorneysfor Matthew Cate, Secretary of the California Department ofCorrections and Rehabilitation CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW uses a 13 point Times New Romanfont and contains 1,763 words. Dated: October 22, 2012 KAMALAD. HARRIS Attorney General of California he California Department ofCorrections and Rehabilitation fitorneyfor Matthew Cate, Secretary of ~ ATTACHMENT Filed 9/12/12 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re WILLIAM TAYLORetal. D059574 on (San Diego County Super. Ct. Nos. HC19742, HC19731, HC19612, Habeas Corpus. HC19743) APPEALfrom orders of the Superior Court of San Diego County, Michael D. Wellington, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuantto article VI,section 6 of the California Constitution.) Affirmed. Kamala D. Harris, Attorney General, Jennifer A. Neill, Acting Senior Assistant Attorney General, Phillip Lindsay and Gregory J. Marcot, Deputy Attorneys General, for Appellant. Office of the Primary Public Defender, County of San Diego, Randy Mize, Chief Deputy, and Laura Beth Arnold, Deputy, for Respondents. Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), appeals the order enjoining CDCR from enforcing the residency restriction of "Jessica's Law"on the groundthat the blanketrestrictionis unconstitutional as a parole condition asit applies to registered sex offenders on parole in San Diego County. In November 2006, the voters of California adopted Proposition 83, "The Sexual Predator Punishment and Control Act: Jessica's Law." Amongother things, the proposition enactedrevisions to the Penal Code,! including one that madeit illegal for registered sex offenders "to reside within 2000 feet of any public or private school, or park where children regularly gather." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 135.) The residency restriction is codified at section 3003.5, subdivision (b) (section 3003.5(b)). The drafters of Jessica's Law assured voters this provision would establish "predator free zones aroundschools and parksto prevent sex offenders from living near where . . . children learn and play." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) argumentin favor ofProp. 83, p. 46.) Subsequently, the CDCR adopted a policy to enforcethe residencyrestriction as a parole condition for registered sex offenders. William Taylor, Jeffrey Glynn, Julie Briley and Stephen Todd (collectively, petitioners) are four of the more than 150 registered sex offender parolees in San Diego County whofiled habeas corpus petitions challenging the constitutionally of the | residencyrestriction. The petitions of Taylor, Glynn, Briley and Todd were chosen to be 1 Statutory references are to the Penal Code. 2 the lead cases for purposes of establishing an evidentiary record to address the " 'as- applied’ " constitutionality of the restriction. (in re E.J. (2010) 47 Cal.4th 1258, 1281.) BACKGROUND This proceeding is an outgrowth of our Supreme Court's decision in In re EJ, supra, 47 Cal.4th 1258, a consolidated habeas corpus proceeding, in which four2 registered sex offenders on parole for nonsex offenses committed before the passage of Proposition 83, but released on parole afterward, challenged the constitutionality of the residencyrestriction as a parole condition pursuant to CDCRpolicy. (d. at pp. 1263- 1264.) The Supreme Court rejected arguments that CDCR's enforcement of the residency restriction as a condition of parole was a retroactive application of the law and violated constitutional prohibitions against ex post facto laws. (/d. at pp. 1264, 1272, 1280.) However, the £./. petitioners also claimed that "section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights, including their privacy rights, property rights, right to intrastate travel, and their substantive due process rights under the federal Constitution." (in re E.J., supra, 47 Cal.4th at p. 1280.) Noting that these claims were "considerably more complex 'as applied’ challenges" and the evidentiary record before it was ‘insufficient to decide them, the Supreme Court remanded the cases to the trial courts of the counties to which the E./. petitioners had been paroled to hold evidentiary hearings. (id, at pp. 1281, 1284.) 2 Two of the four petitioners in Jn re EJ. were from San Diego County. 3 By May2010,the two £.J. petitioners from San Diego County had been discharged from parole andtheir cases were dismissed as moot. Meanwhile, about three dozen other registered sex offender parolees had filed habeas corpus petitions in San Diego Superior Court and had been granted temporary stays of the enforcement of section 3003.5(b). The parties agreed the evidentiary hearing ordered by the Supreme Court in EJ. would focusonthe petitionsfiled by Taylor, Glynn, Briley and Todd. On February 18, 2011, following an eight-day evidentiary hearing,the trial court issued its statement of decision (SOD). The court found the residencyrestriction—when enforced as a parole condition—was "unconstitutionally 'unreasonable' " as applied to the lead petitioners becauseit violated petitioners' right to intrastate travel, their right to establish a homeandtheirright to privacy and was not narrowly drawnand specifically tailoredto the individual circumstances of eachsex offender parolee. The court found "the fundamentalvice of section 3003.5(b) as a parole condition. . . [is i]t is not narrowly drawn, muchless specifically tailored to the individual. It applies as a blanket proscription,blindly appliedto all registered sex offenders on parole without consideration of the circumstancesorhistory of the individual case."3 The court ordered 3 The court rejected petitioners’ other constitutional challenges, which are not the subject of this appeal, including a claim that the restriction was unconstitutionally vague. The court also found two policies adopted by the CDCR to implementthe residency restriction violated the Administrative Procedures Act, but this is not an issue on appeal. Finally, we decline petitioners’ invitation to revisit their retroactivity and ex post facto claims that the Supreme Court rejected in In re E.J., supra, 47 Cal.4th at pages 1264, 1272, 1280. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [we are boundbythe rulings of our Supreme Court].) 4 the CDCRto cease applying section 3003.5(b) as a parole condition against the four lead petitioners. At the sametime, the court pointed out parole agents will continue to have the discretion to imposespecial conditions on sex offender parolees that mirror the residency restriction of section 3003.5(b) or are even morerestrictive than its 2,000-feet minimum requirement based on the specific circumstancesof the individualparolee. On March 10, the court issued a supplemental statement of decision (Supp. SOD), which ordered the CDCRto cease applying section 3003.5(b) as a blanket parole _ condition againstall registered sex offender parolees under supervision in San Diego County.4 FACTS In In re E..J., supra, 47 Cal.4th at pages 1283 to 1284, the Supreme Court set forth an agenda for the remanded evidentiary hearings: to "find the relevant facts necessary to decide the claims. . . includ[ing], but not necessarily limited to, establishing each petitioner's current parole status; the precise location of each petitioner's current residence and its proximity to the nearest 'public or private school, or park where children regularly gather’ (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residencyrestrictions are currently being enforced in each particular 4 Bythe time the court issued its Supp. SOD, an additional 155 other habeas corpus petitions raising the same issues had beenfiled. 5 jurisdiction; and a complete record of the protocol CDCRis currently following to enforce section 3003.5(b) in those respective jurisdictions." A. Petitioners’ Status 1, Taylor Taylor was paroled in January 2008after serving a sentenceforfailing to register as asex offender. (§ 290.)5 He is required to register as a sex offender because in 1991 he was convicted of sexual assault in Arizona.® (§ 290.005.) The victim in that case was an adult woman. Although Taylorhasa long criminalhistory, including convictions for theft offenses, weapon possessions and drug offenses, he has never been convicted of another sex crime or a crime involvinga child. Taylor has AIDS andthroat cancer. He also suffers from diabetes, chronic hypertension, scleroderma, peripheral neuropathy, sciatica, kidney stones, a torn ligament in his right knee, glaucomaand sleep apnea. Taylor has had three strokes and oneheart attack. Heis chronically depressed, suffers from paranoid schizophrenia andis addicted to cocaine. Taylor had plannedto live in Spring Valley with his nephew andhis nephew's wife, who is a health care professional. However, the nephew's residence is not compliant with the 2,000-foot residencyrestriction of section 3003.5(b). Taylor, whois 5 Section 290 imposesa lifetime requirement for persons convicted of specified sex crimesto register with local law enforcement authorities as a sex offender as long as they reside, work or go to school in California. (§ 290, subds. (b), (c).) 6 After Taylor returned to California, the state Department of Justice determined his Arizona conviction was the equivalent of a rape conviction under California law(¢.g., § 261, subd. (a)(2)). destitute, asked his parole agent for financial assistance housing, but was turned down. Subsequently, Taylorslept outside in the alley behindthe parole office—a location pointed out to him by his parole agent. He remained homeless for a month and then was arrested for using cocaine. When Taylor was re-released on parole, he was admitted to the Etheridge Center, a residential drug treatment program near downtown San Diego and nearthe clinic where he wasreceiving treatment for AIDS. However, the Etheridge Center is not compliant with the residencerestriction of section 3003.5(b). CDCR allowed Taylorto stay there while his application for a waiver ofthe 2,000-foot restriction was processed. When Taylor's application was denied, he was given two days to move out. On October2, 2009, the court issued Taylor an emergency 120-day stay, which enjoined the CDCR from requiring him to leave Etheridge Center unless alternative accommodations for medical treatment could be arranged. However, the Etheridge Center suspended Taylor for 30 days for nonsexual misconduct on Halloween, and he was subsequently arrested for another paroleviolation. While in custody, his temporary injunction expired. Uponhis release on parole, Taylor was homeless fora few weeks until CDCRplaced him in a boarding housein Vista, which wasa three-hourbusride from his parole office, the outpatient clinic he was required to attend and the medical facility that had agreed to provide his medicalcare. While in the Vista facility, Taylor collapsed and was hospitalized in the intensive care unit. His parole agent warned Taylor he would bearrested if did not register the hospital address with local authorities within five days. Taylor's parole was revoked for not 7 registering the hospital address and for possession of drug paraphernalia. Upon his release on parole, Taylor lived in a compliant hotel with the CDCRpayingthe rent for 60 days. Atthe timeofthe evidentiary hearing, Taylor wasliving in the hotel. 2. Glynn In 2009, Glynn wasreleased on parole after serving a sentencefor a theft related crime. Heis a registered sex offender becauseofhis 1989conviction of misdemeanor sexual battery committed against an adult womanhe had been dating.7 That conviction is his only sex crime, but he has numerous convictions for theft offenses and drug offenses. Glynn plannedto live with his wife andtheir three children when he wasparoled, but the family's residence wasnot compliant with the residencyrestriction of Jessica's Law. Glynn's wife did not want to move, and he was unable to find compliant housing in the area. Glynn purchased a van andlivedin it as a transient. In December 2009, the court granted Glynn's motion for a temporary injunction against the residence restriction. However, this occurred a week after Glynn committed a burglary. ‘When Glynn was paroled again in August 2010, he movedinto the family's noncompliant apartment by virtue of the previously issued injunction and wasliving there at the time of the evidentiary hearing. 7 At the time of Glynn's conviction, section 243.4 was not an offense that required sex offenderregistration under section 290. (Stats. 1987, ch. 1418, § 3.1, p. 5225.) Effective January 1, 2000, section 243.4 was included as an offense that required sex offenderregistration. (Stats. 1999, ch. 902, § 1.5, pp. 6561-6562.) 8 3. Briley In April 2009, Briley was released on parole after serving a prison term forfailing to register as a sex offender. Briley is required to register because of her 1988 conviction of committing a lewd andlascivious act on a child under the age of 14 years. (§288, subd. (a).) The victim was Briley's daughter and occurred inside the family residence. Since then, Briley has been sex offense free, but has numerous convictions for drug offenses andfailing to register as a sex offender. Briley had planned to live with her sister upon herrelease, but hersister's residence is not compliant with the 2,000-foot residencyrestriction.8 The residency restriction also prevented Briley from living with her sister-in-law or in any of the women shelters with an available bed or sober living houses for women. After learning from a parole agent that other homeless parolees slept in an alley near the parole office, Briley began sleeping there. She wasnot alone; about 15 to-20 people slept there. Briley, who has hepatitis C, high blood pressure, thyroid problems and osteoarthritis, which is aggravated by exposureto cold temperatures, lived there for approximately one andone- half years. In July 2009, the court granted Briley a temporary injunction against the residency restriction, but she was unableto find affordable housing until November 2010. At the 8 Briley would not have been able to live with hersister in any event because a different condition of her parole prohibits her from having contact with children. Briley's nephew lives with hersister. timeofthe evidentiary hearing, Briley lived in a recreational vehicle parked at a noncompliant location in return for five hours of work each week. She has two other part-time jobs, which together pay her approximately $250 a month. 4. Todd? In June 2008, Todd wasreleased on parole after serving a prison term for drug possession. He is required to register as a sex offender because in 1981, when he was 15 years old, he molested his 10-year-old sister. The juvenile court madea true finding that Todd committed a lewd andlascivious act with a child under 14 years old. (§ 288, subd. (a).)!0 Todd does not have anyother sex crime convictions or convictions of crimes involvingchildren, but his criminal history includes convictions for assault with a deadly weapon, burglary, vehicle theft, receiving stolen property and drug offenses. Todd suffers from bipolar disorder. Heis also diabetic and subjectto seizures, which are exacerbated when he is homeless. Todd is unable to hold his head up for long periods because of nerve damage along the right side of his body. Todd also is a recovering heroin addict and has been addicted to methamphetaminefor 18 years. 9 At the time of the evidentiary hearing, Todd was the only oneofthe four lead petitioners who wasnoton parole. Toddhad beenreturnedto prison following his conviction for a new drug offense. The court and parties agreed his petition should not be dismissed as moot becauseofthe original agreement to hearthe four cases as a representative range of cases. 10 At the time Todd committed the sex crime, the law required him,as a juvenile sex offender, to register only until his 25th birthday. (Former § 290, subd. (d)(4); Stats. 1993, ch. 595, § 8, pp. 3134-3137.) Effective January 1, 1995, the limited duration of the registration requirementfor juvenile sex offenders was abolished anda lifetime registration requirement was imposed. (Former § 290, subd. (d)(1); Stats. 1994, ch. 867, § 2.7, pp. 4389, 4391; see now §290.008; see also People v. Allen (1999) 76 Cal.App.4th 999, 1001.) 10 Uponhis release from prison in 2008, Todd planned to stay with a friend at the Plaza Hotel in downtown San Diego, but he could not because of the 2,000-foot residencyrestriction. Unable to find compliant housing, Todd followed his parole agent's suggestion that he live in the bed of the San Diego River. Over the next one and one-half years, Todd wasarrested and his parole was revoked numeroustimes for violating various parole conditions. Throughout that time, Todd was homeless except for the periods he wasin custody. Bythe time of the evidentiary hearing, Todd had suffered another drug conviction and wasin prison. B. Compliant Housing in San Diego County In June 2006, Julie Wartell, a crime analyst for the San Diego County District Attorney's Office, collected data and prepared an electronic map depicting the expected effect of the residencyrestriction of Jessica's Law on available housing in San Diego County. Wartell mapped the location ofall public and private schools in the county (kindergarten through 12th grade) and all "active park"locations. 11 Using an automated 11 "Active park"is taken from section 810.102 (a) of the County of San Diego, Code of Regulatory Ordinances, Vol. I], which reads: "'Active Recreational Uses' means recreation facilities occurring on level or gently sloping land (maximum 10 %)restricted for park and recreation purposes in a planned development which are designed to provide individual or group activities of an active nature commonto local parks in San Diego County, including, but not limited to, open lawn,sports fields, court games, swimming ‘pools, children's play areas, picnic areas, recreation buildings, dance slabs, and recreational community gardening. Active Recreational Uses do not include natural open space, nature study areas, open space for buffer areas, steep slopes, golf courses, riding and hiking trails, scenic overlooks, water courses, drainage areas, water bodies (lakes, ponds, reservoirs), marinas and boating areas, parking areas, and archaeologyareas." 11 mapping program, Wartell used data from the tax assessor's office to show the location of residential land parcels throughout the county. Wartell drew shadedcircles around each school and each park on the map to show a 2,000-foot zone or buffer around each of these locations. Thus, Wartell's map showedthe location of residences that were not compliant with Jessica Law's residencyrestriction: any residence within the shaded circles (buffers or exclusion zones) wasoff limits for registered sex offenders. In 2010, Wartell twice updatedher analysis and mapforthislitigation to reflect the recent additions of parks and schools in the county. Twoanalysts with the county's Department of Planning and Land Userefined Wartell's work into a 288-page hard copy ThomasBrothers-like map book, and an online map application, both of whichallow a person to view specific areas in muchgreaterdetail. In its SOD,thetrial court said the map "graphically show[s] huge swaths of urban and suburban San Diego, including virtually all of the downtown area, completely consumedbythe [residency] restrictions." Wartell's research and the maps show about one-quarter (24.5%) ofall residential parcels in San Diego County are compliant with the residencyrestriction ofJessica's Law—that is, are located outside the exclusion zones. If the single family residences are 12 eliminated, 12 the percentage of multifamily parcels that are compliant with the residency restriction is less than three percent (2.9%). 13 However,asthe trial court acknowledged,the entire 2.9 percent of multifamily parcels located outside the buffer zones around schools and parks is not available to parolees to rent for a numberof reasons. For one thing, the tax assessor residential parcel file used by Wartell include all parcels authorized for residential structures—notjust those on which residential structures have been built and are in use. Also, the demand for low cost housing in San Diego County has more than doubledin recent years. At the time of the evidentiary hearing, the vacancy rate for rental housing in San Diego County wasfive to eight percent. Therefore, at any given time, only five to eight percent of the multi-family compliant residences could reasonably be expectedto be available for rent. Petitioners' counsel asked four investigators for the Public Defender's Office to identify a reasonable portion of potential rental units outside the 2,000-foot buffer zones, considering various factors that make it difficult for registered sex offender parolees to secure housing. Such factors include the parolees’ limited financial resources that 12 Whenreleased from prison,an individual is given $200 in "gate money." The vast numberof sex offender parolees, such as petitioners, are destitute and have scarce employmentpossibilities. They are not likely candidates to purchaseorrent single family homes. Moretypically, they find housing in apartments or low costresidential hotels. 13 During the hearing, Wartell was asked to rework her analysis using data from land use files rather than tax assessorfiles. Using the substitute data, the percentage of residential parcels that were complaint with the 2,000-foot restriction was 25 percent, and the percentage of multifamily parcels that was complaint was 0.7 percent. 13 typically made rent exceeding $850 per month!4 prohibitive, their criminal background and the lack of credit history. The investigators each took a portion of Wartell's map (excluding rural areas) and located complaint multi-family parcels with at least five units.15 The investigators spent approximately 75 hours searching theInternet for the information. The investigators found 13 out of 54 apartment complexes containing more than 60 units rented units for $850 or less per month, but none of these were in downtown San Diego. Of the 57 apartment complexes with between 15 and 60 units, only nine had units that rented for $850 or less per month. There were 167 apartment buildings with five to 14 units, but the investigators were only able to find the rental price of units in four of the complexes. The investigators turned overtheir list of apartment buildings with five to 14 units to two professors from National University who volunteered to do field investigations. The professors phoned 61 apartment complexesthatlisted a number for the property manager, and received only 16 responses despite repeatedly calling and leaving messages. The professors spent approximately 30 hours making phonecalls. In an attempt to acquire information about the remaining apartment buildings, the professors drove hundreds of miles around San Diego County; this took approximately 60 hours. The professors made contact with people at 45 out of 61 complexes. Twenty-six of these 14 The $850 figure was chosen becauseit is within the range of $800 to $1,000 that Social Security Disability Income and Supplemental Security Incomerecipients in San Diego typically receive per month. 15 The investigators limited their search to parcels with at least five units because they did not have enoughtimeto research all multiple housing units. 14 were excluded becausethey did not rent units for less than $850 per month. Of the remaining 45, only two hadall the criteria—a monthly rent of $850 orless, acceptable move-in costs, and no criminal record or credit check. Neither of these two hada rental unit available. ThomasGreen, one of the professors, noted the difficulty in finding the two suitable, compliant residences: "Besides making phonecalls, besides driving all over the county to only find two, made—it seemsto melikeit would be a very difficult proposition to try to find affordable housing that was compliant." Between September 2007 and August 2010, the numberofregistered sex offenders on active parole in the city of San Diego whoregistered as "transient" with the San Diego Police Departmentincreased by four to five times. Prior to Jessica's Law, many registered sex offender parolees lived in residential hotels in downtown San Diego—asituation favored by law enforcement becauseit fostered better surveillance and supervision. But these hotels either have been demolishedas result of redevelopment or they are not compliant with the 2000-foot residencyrestriction. At the time of the evidentiary hearing, CDCR's CALPAROLEdatabase showed there were 482 registered sex offenders on active parole in San Diego County who were not in custody or in parolee-at-large status. CDCRofficials said 165 ofthese parolees were transient or homeless. There were 317 sex offender parolees who had residential 15 address onfile with their parole office. The 317 figure presumably included those who had been afforded injunctiverelief. 16 C. CDCR Protocolfor Jessica's Law Residency Restriction Before a sex offender is released from prison,prison officials provide the offender with his or her parole conditions, including the residencyrestriction of Jessica's Law. Within one day ofhis or her release, the sex offenderparolee is required to report to the assigned parole agent anddisclose the addressofhis or her intended residence. The agent has six working days to verify whether the parolee's intended residenceis compliant—thatis, it is not within 2,000 feet of a school or park—and inform the parolee. Using a handheld GPSdevice, the agent measures the distance from the front doorofthe intended residence to the closest boundary of the school or park. The parolee cannot moveinto the residence before the agent confirms it is compliant. If the proposed residence is not compliant, the parolee must immediately provide a compliant address or declare himself "transient" and register with the local'police accordingly. "Transient" for this purpose is definedas a registered sex offender parolee "who has noresidence." (§ 290.011, subd. (g).) "Residence"is defined as an address "at which a personregularly resides, regardless of the number of daysor nights spent there, such as 16 CDCRposits that if 140 registered sex offender parolees in the county received injunctive relief and they would otherwise have been homeless because ofthe residency restriction, that leaves 177 parolees (317-140)—more than 36 percent (177 out of 482)— who were in compliance with Jessica's Law without the injunctive relief. In its SOD,the trial court discounted this figure because the current status of the parolees receiving injunctive relief—thatis, how many continued to be transient and how manywereliving in noncompliant, but authorized housing—wasunclearat that time. 16 a shelter or structure that can be located by a street address, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." (/bid.) It is a parole violation for a transient parolee to be in a noncompliant residence except for up to two hours twice a day to charge his or her GPS device. !7 The sex offender parolee bears the responsibility for locating compliant housing, whichis reflected in Policy No. 07-36. Parole agents are not authorizedto tell sex offender parolees where to live or to recommend areas where they should look for compliant housing. Amongother things, CDCRpolicies require supervisory parole agents (unit supervisors) of agents who handle a sex offender caseload to "continue to collaborate with community-based programs and local law enforcementto facilitate the identification of compliant housing for sex offender parolees." (Policy No. 07-36.) The CDCRpolicy also requires unit supervisors to "utilize all available resources to obtain a currentlisting of all public and private schools, and parks within their communities" and to provide ' "Tujpdated information” from thelist to parole agents at least once a month. (/bid.) CDCRhasset up a procedure for waivers of the residencyrestriction for parolees who are mentally ill and are housed in a mental health facility and for parolees who are in need of medical care in a licensed medicalfacility that provides 24-hour care. 17 A transient parolee also is allowed to be in a residence for approved employment, conducting legitimate business and/or obtaining care and treatment from licensed providers. 17 Parolees who cannotafford compliant housing may apply for financial assistance in emergencysituations if no other resourcesare available. Theassistance, whichis considered a loan,is limited to 60 days and cannot exceed $1,500. D. Enforcement ofStatute as Parole Condition in San Diego County Parole Agent Maria Domingueztestified that before Jessica's Law was enacted, she did not allow sex offender parolees on her caseloadtolive "on the street." Many — lived in residential programs or in downtown San Diego hotels, where they could be easily supervised. When her office began enforcing in 2007 the residency restriction of Jessica's Law, agents would show paroleesareas they considered compliantortell them about specific addresses. But when her supervisor was transferred, agents were no longer allowed to advise parolees about compliant areas. If a parolee asked whereheor she could live, the agent wasinstructed to say: "I can't tell you where you couldlive, butif you bring me an addressI will check it and makesure that it's compliant." Parole Agent Manuel Guerrero,the unit supervisor for one of two San Diego County units supervising sex offenderparolees, testified parole agents share information about compliant addresses among themselves,but not with parolees. Guerrero said CDCRpolicy prohibits parole agents from supplying parolees with specific compliant addresses or neighborhoods for them to consider in pursuing housing. CDCRhasnotissued a policy statement defining either "school" or "park" for purposes of enforcing Jessica's Law. Nonetheless, Guerrero defined "school" as any public or private school from kindergarten through 12th grade, but acknowledged some sex offender parolees in San Diego County have received Jessica Law parole conditions 18 that extended the definition to daycare centers. Guerrero defined "park" as an area "where kids would normally be at." Guerrero said he would look at whether the location contains, among other things, open grassy areas, playground equipmentor soccer and baseball fields, and whether the area is designated as a park. Guerrero conceded the definition of park sometimesdiffers among parole agents depending on howan agent interprets the word "park." Guerrero, who has been a unit supervisor for three and one-half years, was not familiar with CDCR's requirement that unit supervisors work together with community based programs and local law enforcement to improvethe identification of compliant housing forsex offender parolees. Guerrero had not done this during his tenure as a unit supervisor. Guerrero also was unaware that he was charged with maintaining a current listing of local schools and parks and providing updatesofthat list to parole agentsat least once a month. Jobn "Jack" Chamberlin provided psychotherapy counseling for sex offendersat parole outpatient clinics. He testified homelessness among sex offenders hinders the success of their therapy because they lack stability in the lives. Upon learning that the Public Defender's Office had gathered information about compliant housing, Chamberlin invited a deputy public defenderto talk to one of the sex offender groups he counseled. Afterward, his supervisor told Chamberlin not to invite the public defenderto his other sex offender groups. Michael Feer, a clinical social worker, provided group andindividual counseling to sex offenders at a parole outpatient clinic. When Jessica's Law was implemented, Feer 19 tried to assist the offenders he counseledto find compliant housing by using Google Earth, which wason his office computer. In October 2010, Google Earth was removed from all CDCR computers and Feer received an e-mail from the sex offenderparole supervisortelling him to stop helping sex offender parolees find housing. E. Trial Court's Findings ofFact Thetrial court made, among others, the following factual findings: e Despite certain imprecisions, the map book prepared by Wartell is the most accurate assessment of housingthat is reasonably available to sex offender parolees in San Diego County. ~ e Sex offender parolees are unlikely candidates to rent single-family homes; they are mostlikely to be housed in apartments or low-costresidential hotels. ¢ "[B]y virtue of the residency restriction alone, [sex offender parolees are] barred from access to approximately 97 [per cent] of the existing rental property that would otherwise be available to [them]." e The remaining three percent of multi-family rental housing outside the exclusion areas is not necessarily available to sex offender parolees for a variety of reasons, including San Diego County's low vacancyrate, rent prices that are too high and the unwillingness of some landlordsto rent to sex offenders. e In addition to CDCRpolicy prohibiting parole agents from supplying sex offender parolees with specific information aboutthe location of 20 compliant housing, parole authorities in San Diego County have taken "affirmative steps to prevent” parole employees from helping parolees find compliant housing. e "[R]igid application of the residencyrestriction results in large groups of parolees having to sleep inalleys andriverbeds,a circumstancethat did not exist prior to Jessica's Law." e The residencyrestriction places burdens on parolees that "are disruptive in a waythat hinderstheir treatment, jeopardizes their health and undercuts their ability to find and maintain employment, significantly undermining any effort at rehabilitation." DISCUSSION I Introduction Atissue is the petitioners’ claim that section 3003.5(b)is an unreasonable parole condition that infringes on various constitutional rights, including their privacy rights, property rights, right to intrastate travel and substantive due process. (See /n re E.J,, supra, 47 Cal.4th at p. 1270.) "[T]he threshold question commontoall of petitioners' remaining as-applied challenges to section 3003.5(b) is whether the section, when enforced as a statutory parole condition against registered sex offenders, constitutes an unreasonable parole condition to the extent it infringes on such parolees' fundamental rights." (Ud. at p. 1282, fn. 10, italics omitted.) 21 In addressing the issue, three basic principles are noteworthy. First, statutes, including those enacted through the initiative process, "are presumedvalid and mustbe upheldunless their constitutionality is positively and unmistakably demonstrated." (People v. Basuta (2001) 94 Cal.App.4th 370, 397; see also People v. Jablonski (2006) 37 Cal.4th 774, 826.) Second,it is importantto distinguish the limited rights of parolees from the rights of other citizens. Parolees have fewer constitutional rights than do ordinary persons. (Morrissey v. Brewer (1972) 408 U.S. 471, 482 [92 S.Ct. 2593].) "Although a parolee is no longer confined in prison[,] his [or her] custody status is one which requires and permits supervision andsurveillance underrestrictions which maynot be imposed on membersofthe public generally." (People v. Burgener (1986) 41 Cal.3d 505, 531, disapproved on other groundsasstated in People v. Reyes (1998) 19 Cal.4th 743, 754, 756.) The parolee "is constructively a prisonerin the legal custody ofstate prison authorities until officially discharged from parole. [Citations.] Clearly, the liberty of a paroleeis 'partial andrestricted,’ [citations] not the equivalentof that of an average citizen... ." (Prison Law Office v. Koenig (1986) 186 Cal.App.3d 560, 566-567.) Nonetheless, parole authorities do not have unbridled license to impose any restriction or parole condition they deem proper. (Jn re Stevens (2004) 119 Cal.App.4th 1228, 1234.) "Parole conditions,like conditions of probation, must be reasonable since paroleesretain ‘constitutional protection against arbitrary [and] oppressive official action.’ [Citation.]" (bid.; Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874; see also 22 People v. Thompson (1967) 252 Cal.App.2d 76, 84; § 3053, subd. (a) [state may impose any condition reasonably related to parole supervision].) Third, it is also important to clarify the nature of the challengebefore us —this is an as-applied challenge to section 3003.5(b) as a parole condition—nota facial challenge. "A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measureitself, not its application to the particular circumstances of an individual." (Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1084.) In contrast, an as- applied challenge seeks "relief from a specific application of a facially valid statute... to an individualor class of individuals who are underallegedly impermissible present restraint or disability as a result of the manneror circumstances in whichthestatute or ordinance has been applied." (Ibid.) An as-applied challenge "contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute .. . has been applied and to consider whetherin those particular circumstancesthe application deprived the individual to whom it was applied of a protected right. [Citations.]" (bid.) Wereviewthe grant of a writ of habeas corpus by applying the substantial evidence test to pure questions of fact and de novo review to questions of law. (dn re Collins (2001) 86 Cal.App.4th 1176, 1181.) "[W]hen the application oflaw to fact is predominantly legal, such as whenit implicates constitutional rights and the exercise of judgmentaboutthe values underlying legal principles, this court's review is de novo.” (Ibid.) 23 From our review ofthe record, we concludethe trial court's factual findingsset forth ante in "FACTS,[section] E. Trial Court's Findings ofFact" are supported by substantial evidence. Accordingly, we proceedto our de novoreviewofthe legalissues. | I CDCR's Contentions CDCRcontendsthe residency restriction of section 3303.5(b) is constitutional because (1) it does not infringe upon anyconstitutionalright of parolees, and, (2) even if it did, the restriction is reasonably related to a legitimate government purpose—namely, the protection of children from sex offenders. CDCRarguesthetrial court failed to makethe standard constitutional inquiry as follows: (1) consider whetherthe statute infringes on a constitutionalright of parolees; (2) if so, settle on the properlevelof scrutiny(e.g., strict scrutiny orrational basis); and (3) apply the appropriate scrutiny to determineif the statute impermissibly infringes on the parolee's right. Further, CDCR claimsthetrial court erred by focusing on whether the residency restriction was narrowly drawn ortailored to the individualparolee. As CDCR would apply its syllogistic approach, the inquiry properly should have been short-lived because the 2,000-foot residencyrestriction does not impinge upon any constitutional rights of a registered sex offender parolee. Further, CDCR maintains even if there were an infringement of a registered sex offender parolee's constitutionalrights, none ofthe constitutional interests of such personsisa fundamental constitutional right meriting the higher level ofstrict scrutiny. CDCR completesits syllogism by arguing 24 section 3303.5(b) is constitutional becauseit is rationally related to its intended purpose of providing greater protection to children from sex crimes. ioe Analysis The problem with CDCR's suggested analytical approachis that it ignores the direct mandate of our Supreme Court—namely, to determine "whether[section 3003.5(b)], when enforced as a statutory parole condition against registered sex offenders, constitutes an unreasonable parole condition to the extent it infringes on such parolees' fundamental rights." (/n re E.J., supra, 47 Cal.4th at p. 1283, fn. 10.) This directive implicitly assumes that registered sex offender parolees have some fundamental rights. Moreover, although the Supreme Court recognized the "limited nature" of the constitutional rights of registered sex offender parolees, it nonetheless pointed out that wttheir parole ‘conditions must be reasonable, since parolees retain constitutional protection against arbitrary and oppressive official action.'" (/d. at p. 1282, 1283, fn. 10, quoting Terhune v. Superior Court, supra, 65 Cal.App.4th at p. 874.) Here,the trial court correctly identified and followed the Supreme Court's directive by applying a reasonableness analysis to the residency restriction to determine if it, as a parole condition, constituted arbitrary and oppressive official action. CDCRis correctthat it, as the designated state agency, has constructive custody of parolees and serves the compelling interest of ensuring public safety; this is accomplished through supervision and surveillance of parolees underrestrictions and conditionsthat are designed to prevent them from reverting to a criminallifestyle. (§ 3000, subd. (a)(1); 25 People v. Burgener, supra, 4\ Cal.3d at p. 531.) To this end, "[t]he Legislature has given the CDCR... expansive authority to establish and enforce rules and regulations governing parole, and to impose anyparole conditions deemed proper." (Jn re ES,, supra, 47 Cal.4th at p. 1282, fn. 10.) Conditionsof parole typically bar a parolee from having contact with old associates or engaging in past activities; they are designed to prevent the parolee from reverting to a former crime-inducinglifestyle. (People v. Denne (1956) 141 Cal.App.2d 499, 508-509; 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)Punishment, § 752, p. 1174.) CDCRalso may impose parole conditionsthat " ‘govern a parolee's residence, his associates or living companions,histravel, his use of intoxicants, and other aspectsofhis life.'" (In re E.J., supra, at p. 1283, fn. 10.) However, such parole conditions must be related to the parolee's crime or reasonably related to deter future criminality.’ [Citation.]" (Jn re Corona (2008) 160 Cal.App.4th 315, 321, quoting Jn re Stevens, supra, 119 Cal.App.4th at p. 1234.) CDCR's argumentthat the residency restriction of section 3003.5(b) does not impinge on any constitutionalright is unpersuasive. Thetrial court found the residency restriction implicated three constitutional rights—therightto travel, the right to privacy and the right to establish a home. Weconsiderthe residencyrestriction in light of the right to travel as the other tworights are closely related to the rightto intrastate travel in this context. The constitutionalright to travel, including intrastate travel, has been recognized by California courts. (n re King (1970) 3 Cal.3d 226, 234-235; In re White (1979) 97 Cal.App.3d 141, 148.) "[T]he right to intrastate travel (which includes intramunicipal 26 travel) is a basic humanright protected by the United States and California Constitutions as a whole. Such.a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.” (dn re White, supra, 97 Cal.App.3d at p. 148; see also People v. Smith (2007) 152 Cal.App.4th 1245, 1250 [registered sex offender on probation has constitutional right to intrastate travel].) Petitioners claim the residencyrestriction infringes on their constitutional right to travel becausethe restriction has madeit virtually impossible for them to find affordable compliant housing in San Diego County. Petitioners further claim the restriction has led to widespread homelessness among the County's registered sex offender parolees and has inhibited their freedom of movement within the state. Petitioners liken the effect of the residencyrestriction to impermissible banishment. CDCRcounters that the residency restriction does not implicate petitioners’ right to travel and has norelation to banishment. As CDCR putsit, "[P]etitioners remain free to live or associate with whomeverthey want, and may, subject to the termsoftheir parole, travel throughout and access anywhere within California. The only constraint the law imposes is that registered sex offenders may not establish a permanentresidence near a school or park." California courts have held overly broad or unreasonable residencyrestrictions unconstitutional. (Jn re Babak S. (1993) 18 Cal.App.4th 1077, 1084-1085; People v. Bauer (1989) 211 Cal.App.3d 937, 943-944; People v. Beach (1983) 147 Cal.App.3d 612, 620-623; In re White, supra, 97 Cal.App.3d 141; In re Scarborough (1946) 76 Cal.App.2d 648, 650; see also Alhusainy v. Superior Court (2006) 143 Cal.App.4th 27 385.)18 CDCRobjects to the reliance on such cases, which involve probation conditions, because the rights of a parolee are significantly more limited than the rights of a probationer. (See e.g. Samson v. California (2006) 547 U.S. 843, 850 [126 S.Ct. 2193].) Weacknowledgethat a probationer has moreliberty rights than a parolee, but here weare not concerned with their comparative rights; rather, we are focusing on the reasonableness ofparole conditions, which is judged by the same standard developed for probation conditions. (See People v. Burgener, supra, 41 Cal.3d at p. 531 [same criteria applying to constitutionality of probation condition applies to condition of parole]; Jn re Naito (1986) 186 Cal.App.3d 1656, 1661 [same].) In In re Babak S., supra, 18 Cal.App.4th at page 1082, the juvenile court suspended a commitmentto the California Youth Authority and imposed a probation condition that the minorreside with his parents in Iran for two years. Observing thatthe probation condition effectively constituted a two-year banishment from the United States, the Court of Appeal found it did "not pass constitutional muster." (Jd. at p. 1084.) "Notwithstanding the good intentionsofall the concerned partiesin this case, the probation condition lacked any reasonable nexus to Babak's present or future criminality, violated his constitutional rights of travel, association and assembly, and constituted a de facto deportation." (Jd. at p. 1085.) "[I]n order to survive constitutional scrutiny, such conditions not only must be reasonablyrelated to presentor future criminality, but also 18 This court has similarly rejected as unconstitutional unreasonable residency restrictions imposed as probation conditions. (In re James C. (2008) 165 Cal.App.4th 1198, 1204-1205; Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1183.) 28 must be narrowly drawn and specifically tailored to the individual probationer." (/d.atp. 1084.) In In re White, supra, 97 Cal.App.3d at pages 143 to 144, a woman. convicted of soliciting prostitution challenged a condition of probation that excluded her from three high volumeprostitution areas of the city. The Court of Appeal found the blanket prohibition unreasonable and overly broad, noting that there was no direct relationship between the commission ofprostitution and the exercise of the right to travel. (/d. at p. 150.) The appellate court also said the condition should be more narrowly drawn: "No case has been called to our attention upholding such a broad condition which completely prohibits mere presence in a geographicalarea at all times... ." (Ibid.) In People v. Bauer, supra, 211 Cal.App.3d 937, a probationer convicted offalse imprisonmentand assault successfully challenged a condition requiring his residence be approvedbyhis probation officer. (/d. at p. 943.) The Court of Appeal struck the condition because there was no showingthat it was reasonably related to future criminality. Ud. at pp. 943-944.) Further, the appellate court found the residency restriction "is all the more disturbing becauseit impinges on constitutional entitlements— the right to travel and freedom of association. Rather than being narrowly tailored to interfere aslittle as possible with these importantrights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents—thatis, the power to banish him." (Ud. at p. 944.) 29 In People v. Beach, supra, 147 Cal.App.3d at page 618, an elderly defendant was convicted of involuntary manslaughter and was granted probation for five years on various conditions, including that she absentherself from her community. The appellate court agreedwith the defendant that her banishment from the community where she had lived in her own homefor 24 years was both an unconstitutional and unreasonable condition of probation. (/d. at pp. 620-622.) Theresidencyrestriction contained in section 3003.5(b), of course, is not a full banishmentin the historical sense as practiced by the colonialists as a form of punishment in which an offender was "expelled... from the community." (Smith v. Doe (2003) 538 U.S. 84, 98 [123 S.Ct. 1140]; see also United States v. Ju Toy (1905) 198 U.S. 253, 269- 270 [25 S.Ct. 644].) The residency restriction does not prevent registered sex offender parolees from living in every community in San Diego,nor from visiting communities in which they are not allowed to live. Nonetheless, the residencyrestriction prevents petitioners from living in large areas of San Diego County. With the large numberof schools and parksin the county's - densely populated areas, the 2,000-foot exclusion buffers remove three-quarters ofall the residential parcels in the county as potential homesforpetitioners. Almostall of the residential parcels in the cities of San Diego, Chula Vista, Vista, E] Cajon, Lemon Grove and National City are offlimits to petitioners as residences. Further, the housing situation for registered sex offender parolees in San Diego County is worse because they are unlikely to be ableto afford to live in single family homes. Whensingle family residential parcels are eliminated from consideration, only 2.9 percent of the county's 30 multifamily residential parcels fall outside the buffer zones and are therefore compliant with Jessica's Law. Moreover, when considered from a real world perspective, the housing picture for registered sex offender parolees in San Diego County is even more grim. Given the ~ county's low vacancyrate, the petitioners’ general inability to pay more than $850 to $1,000 per month for rent, and the unwillingness of many landlordsto rent to petitioners with their criminalhistories, significantly less than three percent of the county's multifamily residencesare realistically available to registered sex offender parolees in the county. There are so few legal housing options in urban areas in the county that many offenders face the choice ofliving in rural areas or becoming homeless. Indeed, for more than a year, Briley—-following the suggestion of her parole agent—slept in an alley, where 20 registered sex offender parolees also spenttheir nights. A homeless Taylor also was advised byhis parole agent to sleep in an alley and did so for amonth. Todd lived along a riverbed with other registered sex offender parolees who had no place else to live. Glynn, too, becamea transient, living ina van. Asthetrial court found, before the residencyrestriction of Jessica's Law wasenforced asa parole condition, there were not large groupsofparoleesliving in alleys and riverbeds in San Diego. CDCRpoints out Briley, whose monthly income from three jobs is only $250, remained homeless for more than one year after she received injunctive relief from the residencyrestriction. Regarding Taylor, CDCRnotes he received assistance for housing, but it was short-lived because of his misconduct. Todd, whois without financial 31 resources, had a hard time staying out of custody because ofrepeatedly violating parole conditions and committing crimes. Moreover, CDCRnotes Briley, Taylor and Todd have been homeless a number of times before Jessica's Lawwas enacted. Weare not persuaded bythis argument. These individuals obviously have plenty _ of problems, whichare reflected in their past experiences. However, each of them had plans on whereto live uponhis orher release from prison that were thwarted by the residency restriction. Taylor planned to live with his nephew,but his nephew's residence was not compliant. Briley could notlive with hersister-in-law orat a shelter because of Jessica's Law. (See fn. 8, ante.) Todd wasgoingto live in a downtown lowcost residential hotel with a friend, but downtown San Diego is basically an exclusion zone. Theresidencyrestriction wasnot merely incidental to petitioners’ homelessness, it was a substantial cause ofit. As to Glynn, CDCRclaimsthat like the others, his homelessness had moreto do with his criminality than with Jessica's Law. Further, CDCR maintains Glynn's "affirmative decision not to relocate" his family to a compliant location that he had found and could afford "shows. . . the residencyrestriction has no impact on whether he would become homeless." Wefind disingenuous CDCR's attemptsto shift blame to Glynn forhis homelessness. Glynn would not havebeenin the position of having to choose between his living in a van andthe upheavalofhis family from a location that best suited them dut for the residencyrestriction. To suggest that Glynn is bereft of constitutional rights 32 because he did not force his wife and children to move to a compliant location against their wishes is unrealistic and unsound. Petitioners aptly demonstrated that it is no easy task for them to find compliant, affordable housing in San Diego County. The investigative team put together by the Public Defender's Office, armed with a detailed map book showingall compliantparcels in the County and with the Internet, spent months trying to locate such rental housing. The record showsthe team came up with only five affordable compliant apartment complexes containing between five and 14 units, which from a practical point of view could be rented by a registered sex offender parolee. For registered sex offender parolees without a map book,use of the Internet, private transportation and telephone access,it is a daunting undertaking to find affordable complainthousing in the county, particularly in light of the CDCR policy prohibiting parole agents from supplying sex offender parolees with specific information about the location of compliant housing. The residency restriction has other serious implications for petitioners. Rehabilitative and medical treatment services for parolees are generally located in the densely populated areas of the county. Relegated to rural areas of the County,petitioners are cut off from access to employment, public transportation and medical care. For petitioners, such as Taylor and Todd whohaveserious health issues, access to medical care is critical. For example, Taylor, a cocaine addict who has AIDS,had been accepted at Etheridge Center, a residential drug facility which wasclose to the clinic where he was receiving treatment for AIDS. But the Etheridge Centeris in a residential exclusion zone under Jessica's Law, and Taylor's application for a waiver was ultimately denied. 33 Petitioners also face disruption of family life because of the residency restriction. Although therestriction is silent regarding whether a sex offender parolee can live with his or her family, if the family member's residence is not in a compliantlocation, the parolee cannotlive there. Upon his release from prison, Glynn was unable to live with his wife and three children because the family residence was within 2,000 feet of a school or park. Until the court granted him injunctive relief, Glynn wasliving in a van and was limited to spending only two, two-hour periods (one in the morning and onein evening) in the family home—to rechargethe battery for his GPS anklebracelet. Similarly, Taylor and Briley expected to live with relatives when they were released from prison, but could not do so because their relatives’ residences were within a 2,000-foot exclusion area. In the case of Taylor, who has a myriad of serious health problems, the residency restriction prevented him from living with his nephew, whois married to a health care professional. Cases such as In re Babak S., supra, 18 Cal.App.4th 1077, In re White, supra, 97 Cal.App.3d 141 and People v. Bauer, supra, 211 Cal. App.3d 937, teach thatrestrictions on constitutional rights should be narrowlytailored rather than overbroad. "If available alternative means exist whichare less violative of the Constitutional right and are narrowly drawn so asto correlate more closely with the purposes contemplated, those alternatives should be used [citations]." (In re White, supra, at p. 150.) Such concerns were voiced in People v. Smith, supra, 152 Cal.App.4th at page 1247, in which the appellate court struck downa probation condition imposed by the Los Angeles County Probation Department onall registered sex offendersthat prohibited 34 them from leaving the county for any reason. The Court of Appeal noted the blanket travel restriction was not reasonably related to Smith's crime (id. at p. 1252) and was imposed without consideration to Smith's circumstances, such as his employment(id. at pp. 1251-1252). "Smith has a constitutionalright to intrastate travel [citations] which, although not absolute, may berestricted only as reasonably necessary to further a legitimate governmental interest [citation]." (Id. at p. 1250.) The appellate court reversed the condition and remandedthe case to the trial court “with directions to fashion a less restrictive limitation based on Smith's particularized circumstancesor, in the alternative, to eliminate the travel restriction with regard to Smith's work." (Jd.at p. 1253.) Wefind the blanket residencyrestriction, as applied in San Diego County, excessive and unduly broadin relation to its purpose—namely,to establish predator free zones around schools and parks where children gather. The statute limits the housing choices ofall sex offenders identically, without regard to the type ofvictim or the risk of reoffending. In addition, the record showsthe residencyrestriction effectively bars sex offender parolees from living in about 97 percent ofthe existing multifamily rental property that otherwise would be available to them,including in affordable housing located in downtown San Diego where the record showsthey are moreapt to receive other needed and vital services. The record alsoreflects that the percentage of multifamilyrental housing ostensibly available to sex offender parolees is substantially less than the remaining three percentof that market because of San Diego County's low vacancyrate, 35 high rent prices and the unwillingness of landlordsto rent to sex offenders, among other factors. In light of these findings, we conclude the blanket residency restriction exceeds the scope ofits stated objective—the protection of children—because as applied it eliminates nearly a// existing affordable housing in San Diego County for sex offender parolees, in essence banishing them from living within mostif not all of the County (see Alex O. v. Superior Court, supra, 174 Cal.App.4th at p. 1183), and becauseit treatsall parolees the same regardless of whetherhis or her crime involvedthe victimization of children or adults (and thus the need for the residency restriction in the first place). Glynn and Taylorare registered sex offenders because each of them committed a sex crime against an adult; there is no hint of pedophilia in their histories. The exclusion of parolees with backgroundssimilar to Glynn and Taylor from living near schools and parks does not substantially protect children, but as the record here shows,it has tremendous impact on such parolees'rights and liberty without bearing a substantial relation to their crimes. As in the cases of Glynn and Taylor,it prevented them from living with family members. In Taylor's case,it also decreased his proximity to needed services and treatment. By banning all sex offenders, the absolute residency restriction of Jessica's Law, when enforcedas a parole condition, imposes a substantially more burdensomeinfringementon constitutional rights than is necessary to protect children from sex crimes. As such, the blanket enforcementof section 3303.5(b) as a parole condition in San Diego County has been unreasonableand constitutes arbitrary and oppressive official action. 36 Asnoted bythetrial court, its orders do not prohibit CDCR from individually enforcing the residencyrestriction of Jessica's Law as a parole condition for registered sex offender parolees in San Diego County. The orders merely disallow CDCR from blanket enforcementof the residencyrestriction. Parole agentsretain the discretion to . regulate aspects of a parolee's life, such aswhere and with whom heorshecanlive. (§§ 3052, 3053, subd. (a).) Agents may, afterconsideration of a parolee's particularized circumstances, imposea special parole condition that mirrors section 3303.5(b) or one that is moreorless restrictive. It is only the blanket enforcement—thatis,to all registered sex offender parolees without consideration of the individual case—that the trial court prohibited and we uphold. DISPOSITION The orders are affirmed. BENKE,ActingP.J. WE CONCUR: NARES,J. McDONALD,J. 37 DECLARATION OF SERVICE BY U.S. MAIL Case Name: Inre Taylor,et al. No.: I declare: I amemployedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member'sdirection this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 22, 2012, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186- 5266, addressed as follows: Laura Arnold San Diego County Public Defender's Office 450 B Street, 11th Floor San Diego, CA 92101 Counselfor Willliam Taylor, Julie Briley, Stephen Todd, and Jeffrey Glynn Fourth Appellate District, Division One Court of Appeal of the State of California 750 B Street, Suite 300 San Diego, CA 92101 Appellate Defenders,Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101 The Hon. Michael D. Wellington, Judge San Diego County Superior Court 220 West Broadway, Dept. 55 San Diego, CA 92101 San Diego District Attorney's Office Office of the District Attorney Appellate Division P.O. Box X-1011 San Diego, CA 92112 I declare under penalty of perjury underthe lawsof the State of California the foregoing is true and correct and that this declaration was executed on October 22, 2012, at San Diego, California. M. Torres-Lopez Declarant §D2012704209 70634632.doc Signature
