IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

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1 Filed 3/20/09 P. v. Turner CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. EARL THOMAS TURNER, Defendant and Appellant. A (Solano County Super. Ct. No. FCR224305) Defendant Earl Thomas Turner was convicted of committing a lewd act upon a 14-year-old, an offense requiring his registration as a sex offender. He was sentenced to two years in prison. The court also prohibited defendant, upon his release, from residing within 2,000 feet of a school or park and required him to submit to global positioning system (GPS) monitoring. The statutory provisions underlying imposition of those conditions were enacted by a voter initiative passed in 2006, two years after the events supporting defendant s conviction. Defendant contends, and the Attorney General concedes, that the initiative is not retroactive. Nonetheless, while the Attorney General does not defend imposition of the condition requiring GPS monitoring, he maintains that defendant can be prohibited from moving to a residence within 2,000 feet of a park or school following his release. We conclude this restriction is also improper and modify the judgment to strike the two contested provisions. I. BACKGROUND Defendant was charged in a complaint filed May 26, 2005, which was later deemed an information, with one count of committing a lewd act upon a child (Pen.

2 Code, 288, subd. (c)(1)), three counts of oral copulation of a minor (Pen. Code, 288, subd. (b)(2)), two counts of sodomy of a minor (Pen. Code, 286, subd. (b)(2)), and one count of exposure of another to a communicable disease (Health & Saf. Code, ). The charges were based on events that occurred in 2003 and Defendant was convicted only of committing a lewd act upon a child and was sentenced to two years in prison. The judgment required defendant to register as a sex offender under Penal Code section 290, and ordered him to stay away from any school or parks by 2,000 feet pursuant to [Penal Code section] and to wear a GPS tracking system. The stay-away order was based on Penal Code section , subdivision (b), which prohibits a registered sex offender from resid[ing] within 2000 feet of any public or private school, or park where children regularly gather. The GPS requirement was based on Penal Code section 3004, subdivision (b), which requires certain felony sex offenders to be monitored by a global positioning system for life. These provisions were added to the Penal Code by Proposition 83, an initiative measure that became effective on November 8, (People v. Shields (2007) 155 Cal.App.4th 559, ; see generally People v. Mosley (2008) 168 Cal.App.4th 512, ) II. DISCUSSION Defendant does not contest the requirement that he register as a sex offender, but he contends that imposition of the two conditions was improper because his crime was committed before the effective date of Proposition 83. The Attorney General concedes that Proposition 83 is not retroactive, but he argues (1) the validity of the conditions is not ripe for review because there is no indication in the record that defendant has been released on parole, and (2) the condition requiring defendant not to reside within 2,000 feet of a park or school is not retroactive because it applies only if and when defendant moves to a location in the prohibited zone after the effective date of the proposition. We find both contentions without merit. 1 Because it is unnecessary to consider the facts of defendant s offense in order to resolve his contentions on appeal, we do not recite them. 2

3 A controversy is not deemed ripe for adjudication unless it arises from a genuine present clash of interests and the operative facts are sufficiently definite to permit a particularistic determination rather than a broad pronouncement rooted in abstractions. [Citation.]... [ ] The doctrine arises from several considerations. The requirement of a genuine controversy reflects the desirability of avoiding not only collusive litigation, but cases in which one or both parties lack a real motive to diligently contest the issues. If the competing considerations are not adequately explored and presented, the court may reach a less-than-circumspect result, potentially sending the law down a wrong precedential trail. The rule also reflects an aversion to the needless burden that courts and the public would assume if judicial resources could be diverted to resolving academic or inconsequential controversies. (O Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.) The Supreme Court s leading case on the issue, Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, instructs the court to consider not only the definiteness of the issues presented and the genuineness of the parties adverse legal interests, but also whether the case presents clear-cut legal issues and the hardship to the parties of denying a resolution. (Id. at pp ) There is no reason to find the lawfulness of the trial court s imposition of the two conditions to be unripe for decision. This is a genuine controversy between two parties with sincerely adverse interests, presenting a well-defined and purely legal issue that has real consequences for defendant. The Attorney General argues only that there is no evidence defendant has been released on parole. There is no doubt, however, that eventually he will be released on parole and that the conditions will affect him at that time. Further, there is nothing about defendant s release on parole that will in any way further refine the issues. Whether the conditions are proper is a legal question; his release on parole will not change the facts bearing on its resolution or alter the manner in which the question is presented. Moreover, because defendant will face the imposition of conditions from the moment he is released, it will work a hardship on him not to resolve the issue now. 3

4 Although conceding that the provisions of Proposition 83 are not retroactive, 2 the Attorney General nonetheless refuses to accede to the striking of the residency restriction because he claims the residency restrictions of [Proposition 83] applies [sic] to persons who move to a residence within 2,000 feet of a school after the effective date of [Proposition 83], a position he characterizes as a caveat. The Attorney General contends that the residency restriction is not retroactive because it does not apply to defendant now and will not apply to him unless he moves to a residence within 2,000 feet of a school or park sometime in the future. The Attorney General makes no effort to explain, justify, or even defend this caveat in his brief, instead begging off because [t]hat possible eventuality has not occurred in this case. The court in Doe v. Schwarzenegger, supra, 476 F.Supp.2d 1178, which characterized the same caveat as border[ing] on the frivolous, rejected it simply as a matter of statutory construction, noting that Proposition 83 makes no distinction between persons currently residing in the restricted zone and those who relocate. (Doe v. Schwarzenegger, at p ) Even if the Attorney General s caveat were consistent with the statutory language, it has a further critical flaw: the date on which the restriction applies is irrelevant in determining whether it has an impermissibly retroactive effect. 3 In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party s 2 We find no reason to disagree with defendant and the Attorney General that the Proposition 83 provisions are not retroactive. As explained in more detail in Doe v. Schwarzenegger (E.D.Cal 2007) 476 F.Supp.2d 1178, a finding of retroactivity requires either an express statement of retroactive intent in the proposition or strong indications of such an intent in extrinsic sources. There does not appear to be an express statement or strong indication of intent associated with Proposition 83. (Doe v. Schwarzenegger, at pp ) 3 A further flaw in the Attorney General s caveat is that his position that the restriction would not apply until a registered sex offender moves to a home within 2,000 feet of a school or park is meaningless. If a paroled sex offender is aware that a move to the restricted area will result in a charge of a parole violation, it makes no difference when the restriction is said to apply. Beginning with his or her release on parole, the sex offender will be precluded from moving into the restricted zone. 4

5 liability for, an event, transaction, or conduct that was completed before the law s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute s effective date. [Citations.] (People v. Grant (1999) 20 Cal.4th 150, 157.) Claiming to apply the restriction only when a sex offender moves into a restricted area makes no difference to the retroactivity analysis because the offender s move is not the last act or event necessary to trigger application of the statute. (People v. Grant, supra, 20 Cal.4th at p. 157.) Rather, the event, transaction, or conduct (ibid.) that is the basis for imposing the residency restriction on defendant was his commission of an act that led to his conviction of an offense requiring his registration as a sex offender. That criminal act, which was completed in 2003 or 2004, caused defendant to become subject to all provisions of the Penal Code that impose conditions on the conduct of registered sex offenders. Because defendant committed the offense before Proposition 83 s effective date, the proposition s residency restriction would be retroactive if it was applied to him. Accordingly, that provision does not, and cannot, apply to him based on the current offense. 4 Because we conclude that the provisions of Proposition 83 do not apply to defendant s conviction, we need not address his argument that they constitute an ex post facto punishment. III. DISPOSITION The judgment of the trial court is modified by striking the conditions requiring defendant to stay away from any school or parks by 2,000 feet and requiring him to wear a GPS monitor. As so modified, the judgment is affirmed. The trial court is 4 We take no position on whether the Board of Parole Hearings (formerly Board of Prison Terms) upon granting parole to a prisoner may impose these two conditions pursuant to Penal Code section 3053, subdivision (a) [Board of Parole Hearings may impose on parole any conditions that it may deem proper], but clearly the trial court cannot. 5

6 directed to prepare an amended abstract of judgment, corrected as stated above, and to forward a certified copy to the Department of Corrections and Rehabilitation. Margulies, J. We concur: Marchiano, P.J. Graham, J. * * Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6