Mosley

*1048 Opinion

We confront a single, narrow issue. Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi) held that the Sixth Amendment generally requires a jury to find “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” (530 U.S. at p. 490, italics added.) If a judge makes the findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender, is the order invalid under Apprendi insofar as it includes registered sex offender residency restrictions imposed by Proposition 83, the Sexual Predator Punishment and Control Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006); hereafter Proposition 83 or Jessica’s Law)? We conclude the answer is no.

California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a) (section 288(a))* 1 to register as sex offenders as long as they live or work in California. (§ 290, subds. (b), (c).) If the conviction is for an offense other than those automatically requiring registration, the court may…

Concurring and Dissenting. — The jury in this case acquitted defendant Steven Lloyd Mosley of committing a lewd act on a child under the age of 14 but convicted him of simple assault. Thereafter the trial judge found that Mosley “committed the offense as a result of sexual compulsion or for purposes of sexual gratification” and ordered him to register as a sex offender. (Pen. Code, § 290.006.) The registration order made Mosley subject to the residency restriction of Penal Code section 3003.5, subdivision (b), which prohibits any registered sex offender from living within 2,000 feet of a school or park.

*1071 Mosley argues that under Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi), he was entitled to have a jury, not a judge, determine the facts supporting the registration order and residency restriction. In rejecting this claim, today’s opinion avoids deciding whether the residency restriction applies to Mosley — a statutory question — in order to decide not one but two constitutional questions concerning Apprendi’s applicability. Because the court’s methodology is as flawed as its holdings, I respectfully dissent. Section 3003.5,…

Filed 3/2/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S187965 v. ) ) Ct.App. 4/3 G038379

STEVEN LLOYD MOSLEY, )

) Orange County Defendant and Appellant. ) Super. Ct. No. 05NF4105 ____________________________________)

We confront a single, narrow issue. Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) held that the Sixth Amendment generally requires a jury to find ―any fact that increases the penalty for a crime beyond the prescribed statutory maximum.‖ (Id., at p. 490, italics added.) If a judge makes the findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender, is the order invalid under Apprendi insofar as it includes registered sex offender residency restrictions imposed by Proposition 83, the Sexual Predator Punishment and Control Act: Jessica‘s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006), hereafter Proposition 83 or Jessica‘s Law)? We conclude the answer is no. California law has long…