In re E.J.

Concurring. — Before the court today are four petitioners who were convicted of a sexual offense before passage of Proposition 83 (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006)), who were required by law to register as sex offenders as a result and who have been paroled from prison after passage of Proposition 83. All four petitioners challenge the attempt by the California Department of Corrections and Rehabilitation (CDCR) to enforce against them, as a statutory parole condition, Penal Code section 3003.5, subdivision (b) (hereafter section 3003.5(b)), which was enacted as part of Proposition 83. That new law prohibits sex offender registrants from living “within 2000 feet of any public or private school, or park where children regularly gather.” (§ 3003.5(b).) The majority concludes that enforcing this 2,000-foot residency restriction against petitioners as a parole condition does not constitute an impermissible retroactive application of the law nor violate their right to be free of an ex post facto application of the law. The majority remands the balance of petitioners’ constitutional claims to the lower courts to permit petitioners to pursue their “as applied”…

Dissenting.—

I.

I respectfully dissent.

Penal Code section 3003.5, subdivision (b) (section 3003.5(b)) 1 cannot be applied to those who suffered their convictions before the date Proposition 83 (Prop. 83, as approved by the voters, Gen. Elec. (Nov. 7, 2006)) was enacted.. Nothing in the language of the proposition or in the relevant extrinsic materials supports any other conclusion. Therefore, section 3003.5(b) does not apply to these petitioners and I dissent from the majority opinion’s contrary conclusion.

Before I turn to the majority opinion, I begin with a review of “well-established general principles governing the question whether a statutory or constitutional provision should be interpreted to apply prospectively or retroactively.” (Strauss v. Horton (2009) 46 Cal.4th 364, 470 [ 93 Cal.Rptr.3d 591 , 207 P.3d 48 ].) There is a statutory presumption against retroactive application of penal laws, articulated in section 3, first enacted in 1872, which states: “No part of [the Penal Code] is retroactive, unless expressly so declared.” This presumption is, as we have noted, rooted in federal “constitutional principles” reflected in such provisions as the ex post facto…

On November 7, 2006, the voters enacted 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). Proposition 83 was a wide-ranging initiative intended to “help Californians better protect themselves, their children, and their communities” (id., § 2, subd. (f)) from problems posed by sex offenders by “strengthening] and improving] the laws that punish and control sexual offenders” (id., § 31).

Among other revisions to the Penal Code, 1 Proposition 83 amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 2 may reside. New subdivision (b), added to section 3003.5, provides: “Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.” (§ 3003.5, subd. (b) (section 3003.5(b)).) The new residency restrictions took effect on November 8, 2006, the effective date of Proposition…