Monday, November 17, 2008

Petra Luna - Self proclaimed vigilante, voice for the children, condones violence, and says it will escalate!


Click the image to visit her MySpace article


Read what she says below, very carefully!

She says:

"When the victims of abuse have fewer rights than the offenders, there will be violence."

"Until we get justice, this violence will escalate."

"This is my prediction.  There will be more vigilante-ism, more escalated violence and more war."

And she compares her "war" to 60's civil rights and womens movement!  Hmm, how ironic.  I have said the same thing, and her vigilante criminal femi-nazis, jump all over me and say "How can you compare sex offender issues to the 60's civil rights movement, or the womens movement!"  Well, now the hypocrites remain quite when one of their own says this, and condones violence.  She also claims to be a Christian!  Now that is really hypocritical, isn't it...  She's condoning violence, yet is a Christian!

I've never condoned violence, nor suggested it, and yet she does above!  So tell me, who is a danger to society?  Also, see her video below, where she was on 20/20 for harassing Jan Kruska, and said it was "a necessary evil," and that Jan "deserved to be harassed by her!"




Lawsuit against Petra Luna (Barbara Ochoa)


OR - Sex offender suspect cuts monitoring bracelet

View the article here

Yep, GPS really protects people, doesn't it.  Like I've said before, if someone is intent on running, or committing another crime, no amount of laws will prevent it, and this is another example of that.

11/17/2008

PORTLAND - The U.S. Department of Justice says a man "sexually fixated on children" has cut off his GPS monitoring ankle bracelet and fled his Portland home.

Paul Eric Presley, who is 47, faced up to 71 months in prison but failed to show up for sentencing in U.S. District Court in Tacoma, Wash. Monday.

Vancouver police and the FBI said the evidence against Presley included more than 7,000 child pornography images and several hundred movie files of children engaged in explicit sexual conduct.

In 2006 Vancouver police responded to a 911 call at Presley's home. His wife told officers Presley had child pornography stored on his desktop and laptop computers.

Officers seized the desktop computer. The next day Presley's daughter and her boyfriend delivered the laptop to police.


GA - Sex offender files new suit to stay in home

View the article here

Why don't they take it to the state or US Supreme court?  That is where is should be in the first place.

11/17/2008

By Steve Kuzj - skuzj@nbcaugusta.com

HARLEM - A registered sex offender isn't letting a state's court decision force her from her Columbia County home, Monday.

On Thursday, a Georgia judge ruled that Wendy Whitaker needed to move from her home because she lived within 1,000 feet of a church.

Whitaker’s attorney is now filing a new lawsuit at the county level which could prevent her from having to move.

Georgia law prohibits sex offenders from living within 1,000 feet of churches, daycares and schools.

Ten years ago, when Wendy was 17, she performed a consensual sex act on a 15-year-old boy.

She was convicted and forced to register as a sex offender under Georgia law.

Kim Cosby baby-sits several children right next door to Whitaker's home and has been her neighbor for two years.

"I don't think what she's done is threatening our children here,” says Cosby. “If it was someone that had been in trouble with a little child and they were older, it would be different, but she was just caught up in a bad situation.”

But Whitaker's other next door neighbor begs to differ.

"The only fact that really means anything is that she's living there in direct violation of a court order,” says A.L. Wells. "Never mind that there was two years between her and that young boy in school. That doesn't have nothing to do with nothing. The law is the law."

Whether that law is fair or not will soon be up to the Columbia County Superior Court to decide.

One thing both of Whitaker's neighbors have decided on is that the law needs to be updated.

The Columbia County Sheriff's Office has not decided on an exact time to force Whitaker out of her home. The department says it will make that decision later this week.


Sex Offenders Have Rental Rights, Too

View the article here

by Janet Portman, Inman News

Q: One of my neighbors informed me that one of my newest tenants is a registered sex offender (I’m not sure how she found this out).

He stated on his rental application that he had a three-year-old felony conviction, but he did not report details.

Figuring that everyone deserves a chance, I did not ask further and rented to him and his wife and two young children, giving them a yearlong lease. They’ve caused no problems. Our local sheriff’s department plans to notify the neighbors of his address and criminal history.

I’m concerned about the safety of this man and his family, as well as how I should handle this situation with the neighbors. Can you please provide me with some guidance on how I should proceed? – Jan

A: You’ve encountered one of the most difficult situations a landlord can find herself in. Unfortunately, there are no easy answers.

You were not legally required to ask about your tenant’s criminal history, and you’ve broken no laws by learning that the applicant had a criminal past but not going further to find out what the conviction entailed. And even had you learned the details, a decision to rent nevertheless would not have been illegal. But legalities are one thing, and practicalities are another.

Your fear that neighbors will react negatively to your new tenant is well-founded. Neighbors who learn that a registered offender lives in their midst have often reacted strongly, demanding that the offender move away. Many offenders have been rendered homeless by the refusal of landlords to rent to them (when they provide their history) or the constant harassment of neighbors who want them gone. When the offender is homeless and no longer registering at his home address, the whole point of the registration system (tracking the whereabouts of a registrant) is frustrated.

To effectively deal with the situation, start with the police department themselves. With luck, you’ll find that they have developed educational materials aimed at answering questions that neighbors commonly ask, and they may be willing to come out to your property and speak to a gathering of the neighbors. Meet immediately with your tenant and his family, and assure them that you will protect their right to live peacefully in their home as long as they have a legal right to live there. Understand that until these tenants give you a legal reason to terminate their tenancy, your (or your neighbors’) fear alone that the father will commit a crime on the premises will not support a decision to terminate their lease or evict them.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at janet@inman.com. What’s your opinion? Leave your comments below or send a letter to the editor. To contact the writer, click the byline at the top of the story.

Copyright 2008 Janet Portman


GA - Sex offender suit fails to keep plaintiff out of prison - Creative Loafing

View the article here

11/17/2008

By Scott Henry

The Georgia Supreme Court today ruled against a Henry County man who argued that he should not have been required to register as a sex offender because Georgia law is too vague. As a result, James Orin Jenkins will spend the next three years in prison.

Jenkins is not a party to the constitutional challenge to the sex-offender law brought by the Southern Center for Human Rights that’s now working its way through federal courts. Instead, he’s one of several Georgia sex offenders who’ve appealed a conviction for non-registration imposed by the state’s draconian new law.

Just last month, the High Court struck a provision in the law that would have sent homeless sex offenders to prison for being unable to register a valid address with their county sheriff’s office. The plaintiff in that suit, William James Santos, had spent a year in a Hall County jail and was facing a life sentence for failing to register his address – even though he didn’t have an address.

As far as I can tell, Jenkins’ appeal was based on much narrower technical grounds, some of which hinged on whether his conviction on charges of attempted rape qualified as a “sexually violent offense.”

Anyway, it seems today’s ruling will have little impact on the Southern Center’s lawsuit. Watch this week’s paper for my update on the latest news from that case and also look here.


BLOG - MonsterMart

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NC - Former Sheriff Pleads Guilty To Felony Charges

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Just like expected, another cop, another slap on the wrist!

11/17/2008

Former Polk County Sheriff Chris Abril pleaded guilty Monday to “solicitation to take indecent liberties with a minor.”

Originally, Abril faced charges of rape stemming from incidents that investigators said happened 20 years ago involving girls who were 10 and 12 at the time.

In court testimony Monday it was revealed that the two girls are cousins, according to our coverage partners at the Hendersonville Times-News.

While Abril pleaded guilty in the case, both the prosecution and the defense will present witnesses before presiding Judge Zoro Guice announces a sentence reported the newspaper.

The two counts Abril pleaded guilty to are class “J” felonies with a maximum punishment of up to six years. The sentence will also mean Abril has to give up his law enforcement certification.

Abril announced his resignation on Thursday as sheriff of Polk County due to the stress of the upcoming trial.

Abril was charged with five counts of statutory rape and one count of sexual offense stemming from what investigators said happened in 1988 and 1989.

Abril’s case went to trial in August in Polk County but the case was put on hold while two different venues were selected until eventually the case wound up in Haywood County.

Abril, who was arrested in Aug. 2006, won the election for sheriff in Polk County despite the charges several weeks later.

Abril was also the police chief for Columbus until 2002.


CA - People v. Milligan (2008) , Cal.App.4th


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People v. Milligan (2008) , Cal.App.4th

[No. G039546. Fourth Dist., Div. Three. Sep. 15, 2008.] THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ALLEN MILLIGAN, Defendant and Appellant.

(Superior Court of Orange County, No. 07WF1983, Michael J. Cassidy, Commissioner.)

(Opinion by Fybel, J., with Rylaarsdam, Acting P. J., and Moore, J., concurring.)

COUNSEL

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janet Neeley and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. {Slip Opn. Page 2}

OPINION

FYBEL, J.-
 
INTRODUCTION


In August 2007, Timothy Allen Milligan pleaded guilty to one count of failing to register as a sex offender in violation of Penal Code section 290, subdivision (g)(2) fn. 1 and admitted two prior felony convictions suffered in March 1987 for violating former sections 261(2) and 289, subdivision (a). The trial court struck one of the two prior convictions and sentenced Milligan to total term of 32 months in prison. In addition, the court ordered Milligan to submit to DNA testing and to register as a sex offender pursuant to section 290.

Milligan argues various amendments and additions to the sex offender registration laws, enacted since his initial duty to register commenced in March 1987, when considered collectively constitute punishment and, therefore, would violate the ex post facto clauses of United States and California Constitutions if retroactively applied to him.

The challenged amendments and additions to the sex offender registration laws fall into four categories. The first category is the 2003 and 2005 amendments to section 290, which imposed additional registration requirements. The second category is the public access to information and inquiry statutes, sections 290.4 (added in 1994) and 290.46 (added in 2004). These code sections require the Department of Justice to provide a service by which the public can determine whether a person is a sex offender (§ 290.4) and to maintain a publicly accessible Internet Web site making available certain information about sex offenders (§ 290.46). The third category is the DNA and Forensic Identification Data Base and Data Bank Act of 1998, section 295 et seq. (the DNA Act), under which sex offenders now must submit DNA samples. The fourth category is the {Slip Opn. Page 3} Sexual Predator Punishment and Control Act: Jessica's Law (SPPCA). Approved by California voters in 2006 as Proposition 83, the SPPCA added section 3000.07, amended section 3003.5 to prohibit registered sex offenders to reside within 2,000 feet of any school or park where children regularly gather, and added section 3004, subdivision (b) to require global positioning system (GPS) monitoring of certain defined sex offenders for life.

After reviewing principles of ex post facto law and the challenged amendments and additions to the sex offender registration laws, we address whether each category of the challenged amendments and additions individually would constitute an ex post facto violation if applied retroactively. We conclude Milligan's challenge to the 2005 amendment to section 290, part of the first category, is not ripe for adjudication and, under well-established authority, the other challenged amendments and additions in categories one, two, and three do not constitute punishment. As for the fourth category, the Attorney General, in a letter brief, has confirmed the trial court did not order Milligan to comply with the SPPCA's residency restrictions and GPS monitoring requirements, and has taken the position the SPPCA applies prospectively only and is inapplicable to Milligan. Because he committed the offenses subjecting him to sex offender registration before the SPPCA's effective date, we conclude Milligan is not and will not be subject to the SPPCA's residency restrictions and GPS monitoring requirements.

Next, we consider the 2003 amendment to section 290, the DNA sampling and collection laws, and the public notification and information access laws collectively. Applying the two-part test from Smith v. Doe (2003) 538 U.S. 84, we conclude those laws were not intended to be punitive and are not punitive in nature and effect.

We therefore affirm the judgment, with a proviso that Milligan is not subject to the SPPCA's residency restrictions and GPS monitoring requirements because they do not apply retroactively. {Slip Opn. Page 4}
 
DISCUSSIONI. The Ex Post Facto Clauses


Article I, section 10, clause 1 of the federal Constitution states, in pertinent part: "No state shall . . . pass any . . . ex post facto law . . . ." Article I, section 9 of the California Constitution similarly states an "ex post facto law . . . may not be passed." The California provision is analyzed in the same manner as its federal counterpart. (People v. Grant (1999) 20 Cal.4th 150, 158.)

The ex post facto clauses of the federal and state constitutions prohibit enactment of laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43; see also People v. Grant, supra, 20 Cal.4th at p. 158.) "'An ex post facto law is a retrospective statute applying to crimes committed before its enactment, and substantially injuring the accused. . . .' [Citation.] If a crime is committed before the 'effective date' of a statute and the statute retroactively increases the punishment for the crime or eliminates a defense, the statute violates the ex post facto clauses." (People v. Jenkins (1995) 35 Cal.App.4th 669, 672.)

In Smith v. Doe, supra, 538 U.S. 84, the United States Supreme Court confirmed a two-part test to determine whether a statutory scheme is punitive for purposes of ex post facto analysis. The court first determines whether the legislature intended to impose punishment: "If the intention of the legislature was to impose punishment, that ends the inquiry." (Id. at p. 92.) If the court determines the legislature intended to enact "a regulatory scheme that is civil and nonpunitive," then the court must determine whether the statutory scheme is "'"so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."'" (Ibid.) To analyze the effects of the statute, the court must consider seven factors noted in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144. Those factors, which are "'neither exhaustive nor dispositive,'" are whether the statutory scheme (1) has been regarded in our history and traditions as {Slip Opn. Page 5} punishment, (2) imposes an affirmative disability or restraint, (3) promotes the traditional aims of punishment, (4) has a rational connection to a nonpunitive purpose, (5) is excessive with respect to this purpose, (6) comes into play only on a finding of scienter, and (7) applies to behavior which is already a crime. (Smith v. Doe, supra, 538 U.S. at pp. 97, 105; see also People v. Presley (2007) 156 Cal.App.4th 1027, 1032.)
 
II. Amendments and Changes Since 1987 to the Sex Offender Registration Laws


Since March 1987, the sex offender registration laws have been amended to enhance registration requirements, create a public notification and inquiry system, require DNA collection and sampling, and impose residency restrictions and GPS monitoring.

Section 290 was amended in 2003 so that a person who is required to register as a sex offender must reregister within five working days of changing his or her residence (§ 290, subd. (a)(1)(A)) or establishing a second residence (§ 290, subd. (a)(1)(B)), and must personally inform the local law enforcement agency in writing within five working days of changing residence within or outside of California (§ 290, subd. (f)(1)). (Stats. 2003, ch. 634, § 1.3.) Section 290 was amended again in 2005 to expressly impose a duty to register on "[a]ny person required to register pursuant to any provision of this section, regardless of whether the person's conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5." (§ 290, subd. (a)(2)(F), added by Stats. 2005, ch. 704, § 1; Stats. 2005, ch. 722, § 3.5.)

Section 290.4, which became operative on July 1, 1995, requires the Department of Justice to operate a service through which members of the public may ask for a determination whether a specific person must register as a sex offender. (§ 290.4, added by Stats. 1994, ch. 867, § 4.) Section 290.46, which became effective September 24, 2004, requires the Department of Justice to make certain information about registered {Slip Opn. Page 6} sex offenders available to the public via an Internet Web site. (§ 290.46, added by Stats. 2004, ch. 745, § 1.)

The DNA Act (Stats. 1998, ch. 696, § 2) added sections 295, 295.1, 296, 296.1, and 296.2 to the Penal Code. (See Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1500.) "The [DNA] Act required DNA samples from defendants convicted of a number of listed felony offenses, as well as defendants required to register for a felony sex offense pursuant to former section 290." (Ibid.) On November 2, 2004, California voters approved Proposition 69, which made significant amendments to the DNA Act. Proposition 69 amended section 296, subdivision (a) to broaden the scope of persons required to submit DNA samples. (See Good v. Superior Court, supra, 158 Cal.App.4th at p. 1500.) Proposition 69 added section 296.1 to set forth administrative procedures for collecting DNA samples from various classes of persons, including any person required to register under section 290. (§ 296.1, subd. (a); see also § 296, subd. (a)(2)(A).) Proposition 69 expressly made section 296.1, subdivision (a)(2) through (6) retroactive. (§ 296.1, subd. (b).)

California voters approved the SPPCA in 2006 as Proposition 83. The SPPCA prohibits registered sex offenders from residing within 2,000 feet of any public or private school, or park where children regularly gather (§ 3003.5) and requires them to be monitored by GPS while on parole (§ 3000.07) and for life (§ 3004). The SPPCA states: "It is the intent of the People in enacting this measure to help Californians better protect themselves, their children, and their communities; it is not the intent of the People to embarrass or harass persons convicted of sex offenses. [¶] . . . [¶] It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders. It is also the intent of the People of the State of California that if any provision in this act conflicts with any other provision of law that provides for a greater penalty or longer period of imprisonment the latter {Slip Opn. Page 7} provision shall apply." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (f), p. 127 & § 31, p. 138.)
 
III. Individual Ex Post Facto Analysis of the Challenged Amendments and Additions to the Sex Offender Registration Laws


A. First Category: Sex Offender Registration--Amendments to Section 290

1. People v. Castellanos

In People v. Castellanos (1999) 21 Cal.4th 785, 788 (Castellanos), the California Supreme Court addressed whether retroactive application of the sex offender registration requirement imposed by section 290 constituted an ex post facto violation. In that case, the defendant was convicted of burglary and receiving stolen property. (Castellanos, supra, 21 Cal.4th at p. 789.) He was sentenced to a term of 14 years in prison and ordered to register as a sex offender pursuant to section 290 on his release. (Castellanos, supra, 21 Cal.4th at p. 789.) He argued on appeal that requiring him to register as a sex offender violated the ex post facto clauses of the federal and state Constitutions because the provision in section 290 requiring him to register took effect after he committed the offenses for which he was convicted. (Castellanos, supra, 21 Cal.4th at p. 789.)

The Supreme Court concluded the sex offender registration requirement imposed by section 290 did not constitute punishment for purposes of ex post facto analysis, reasoning: "The sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment. Nor is the sex offender registration requirement so punitive in fact that it must be regarded as punishment, despite the Legislature's contrary intent. Although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve the purpose of the statute." (Castellanos, supra, 21 Cal.4th at pp. 788, 796.) {Slip Opn. Page 8}

Based on Castellanos, the court in People v. Allen (1999) 76 Cal.App.4th 999, 1001 concluded retroactive application of a 1995 amendment to section 290 imposing lifetime registration on persons discharged or paroled from juvenile commitment did not violate the ex post facto clauses.

2. The 2003 and 2005 amendments to section 290

As Milligan argues, Castellanos did not consider the 2003 and 2005 amendments to section 290, so we will consider each in turn. In applying the first part of the two-part Smith v. Doe test, we have found nothing to indicate the Legislature enacted the 2003 amendment with the intent to impose punishment. (See Castellanos, supra, 21 Cal.4th at p. 796 ["it does not appear that the Legislature intended the registration requirement to constitute punishment"].) Rather, the 2003 amendment to section 290, which requires the sex offender to reregister and notify local law enforcement within five working days of changing residence, was enacted as part of a statutory scheme that is regulatory in nature. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 ["The statute [section 290] is thus regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts"].)

Section 290's purpose is to make sure convicted sex offenders, who are considered likely to reoffend, are readily available for police surveillance at all times. (Wright v. Superior Court, supra, 15 Cal.4th at p. 527.) The 2003 amendment is rationally connected with, and advances, that nonpunitive purpose by requiring sex offenders to make themselves available for such surveillance within five working days of changing residence or acquiring a second residence. The 2003 amendment does impose an additional burden on sex offenders. But that burden, together with other burdens imposed by section 290, is not "so punitive in fact that it must be regarded as punishment" and is "no more onerous than necessary to achieve the purpose of the statute." (Castellanos, supra, 21 Cal.4th at p. 796.) {Slip Opn. Page 9}

Milligan has not shown he will ever be subject to the 2005 amendment to section 290. That amendment imposes a duty to register even when a defendant's conviction has been dismissed pursuant to section 1203.4, unless the defendant obtains a certificate of rehabilitation and is entitled to relief from registration. (Stats. 2005, ch. 704, § 1; Stats. 2005, ch. 722, § 3.5.) Section 1203.4 provides a trial court may permit a defendant to withdraw a guilty plea once the defendant has fulfilled all terms of probation for the full term of probation, and is not currently incarcerated or facing charges for a different offense. (§ 1203.4, subd. (a).) The challenged changes and additions to the sex offender registration laws, other than the 2005 amendment to section 290, have applied or will apply to Milligan automatically when he is released from prison. In contrast, the 2005 amendment will apply to Milligan only if and when a court permits him to withdraw his guilty plea under section 1203.4 and dismisses the charge. The issue whether the 2005 amendment to section 290 applies retroactively to Milligan therefore is not yet ripe for judicial decision. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.)

B. Second Category: Public Notification and Access to Sex Offender Information

In Smith v. Doe, supra, 538 U.S. at pages 89-90, 105-106, the United States Supreme Court upheld an Alaska statute requiring sex offenders to register with law enforcement and making much of the registration information publicly accessible. The Alaska statute allowed law enforcement to make publicly accessible via the Internet a registered sex offender's name, aliases, home address, photograph, place of employment, crime, length and conditions of sentence, and a statement whether the offender was in compliance with registration requirements and could be located. (Id. at p. 91.) The Supreme Court concluded the Alaska Legislature intended to create a civil, nonpunitive regulatory scheme and the statute was not punitive in effect. (Id. at pp. 96, 105-106.) "Given the general mobility of our population, for Alaska to make its registry system {Slip Opn. Page 10} available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment." (Id. at p. 105.)

Based on Smith v. Doe, the court in People v. Presley, supra, 156 Cal.App.4th at page 1035 concluded the public notification requirements of sex offender registration under section 290.46 did not constitute punishment for purposes of the Sixth Amendment. The Presley court observed, "[t]he court's analysis of the Alaska statute is particularly relevant since California's public notification statutes are quite similar." (People v. Presley, supra, 156 Cal.App.4th at p. 1034.)

California's public notification and access statutes, section 290.4 et seq., therefore do not constitute punishment and would not violate the ex post facto clauses if applied retroactively to Milligan.

C. Third Category: DNA Collection and Sampling--The DNA Act

In People v. Travis (2006) target="_blank" href="http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/139/1271.html">139 Cal.App.4th 1271, 1293-1295, the court upheld DNA collection and sampling under sections 296 and 296.1 against an ex post facto challenge. The court reasoned, "[t]he imposition of a DNA testing requirement under section 296.1 for felony convictions may constitute a disadvantage or burden, but the statute was neither intended to nor does inflict punishment for commission of the crime. . . . Examination of the DNA sample collection law reveals that it was not enacted to punish convicted felons, but instead to establish a DNA database to assist in the identification, arrest, and prosecution of criminals." (People v. Travis, supra, 139 Cal.App.4th at p. 1295; see also Good v. Superior Court, supra, 158 Cal.App.4th at p. 1510 ["There is no constitutional bar to requiring DNA samples based on a conviction predating Proposition 69, so long as there remains a current requirement to register"].)

We agree with this reasoning and conclude retroactively applying the collection and sampling requirements of the DNA Act is not an ex post facto violation. {Slip Opn. Page 11}

D. Fourth Category: The SPPCA

Milligan and the Attorney General submitted letter briefs addressing several issues regarding the SPPCA, including whether its residency restrictions and GPS monitoring requirements apply retroactively. fn. 2 We agree with the Attorney General "the residency restrictions and GPS monitoring requirements apply prospectively only."

Statutes, whether enacted by the Legislature or the voters, operate prospectively unless there is clear evidence to the contrary. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207.) "[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Id. at p. 1209.)

The SPPCA does not have a retroactivity provision. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 [interpreting voter-approved proposition as operating only prospectively where proposition was silent on issue of retroactivity].) In contrast, Proposition 69 expressly made section 296.1, subdivision (a)(2) through (6) retroactive. (§ 296.1, subd. (b).) The Penal Code expressly states: "No part of [this code] is retroactive, unless expressly so declared." (§ 3.) The Attorney General concedes that "[n]othing in the text of the legislation suggests that any portion of the SPPCA, including the residency restrictions or GPS monitoring requirements, was intended to apply retroactively." We have found nothing in the extrinsic sources evincing a "clear intent" {Slip Opn. Page 12} the SPPCA was intended to apply retroactively. (See Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178, 1182-1183.)

However, while agreeing the SPPCA does not apply retroactively, the Attorney General takes the position "the residency restrictions of the SPPCA only appl[y] to persons who move to a residence within 2000 feet of a school after the effective date of the SPPCA." This assertion misapplies the law of retroactivity. "In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's 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, supra, 20 Cal.4th at p. 157.)

The last act or event necessary to trigger the SPPCA's residency restrictions and GPS monitoring requirements would be commission of a felony violation of a "'registerable sex offense'" under section 290, subdivision (a)(2)(A) or an attempt to commit such an offense. (§§ 3000.07, subd. (a), 3003.5, subd. (b), 3004, subd. (b).) Because Milligan committed the offenses for which he must register as a sex offender before the SPPCA's effective date, the SPPCA's residency restrictions and GPS monitoring requirements do not, and cannot ever, apply to him based on those offenses.
 
IV. Collective Ex Post Facto Analysis of the Challenged Amendments and Additions to the Sex Offender Registration Laws


Having concluded none of the challenged additions and amendments to the sex offender registration laws individually applies retroactively, or would not be an ex post facto violation if retroactively applied to Milligan, we address Milligan's argument these amendments and additions collectively make sex offender registration punitive. We return to the two-part test from Smith v. Doe. {Slip Opn. Page 13}

As to the first part of the test, we find nothing to indicate the Legislature and the voters intended these amendments and additions collectively to constitute punishment. None of them individually was expressly labeled as punitive. The challenged amendments and additions were made piecemeal by legislation or by voter initiative between 1998 and 2005 with no discernible coordinated effort or plan for them as a whole to impose additional punishment on sex offenders. Although the amendments and additions were codified in the Penal Code, "[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one." (Smith v. Doe, supra, 538 U.S. at p. 94.)

For the second part of the Smith v. Doe test, we treat the 2003 amendment to section 290, the DNA Act (as amended by Proposition 69), and the public access and notification provisions of the sex offender laws as if they were enacted together as a single piece of legislation. Would this legislation be so punitive in nature and effect that it would have to be found to constitute punishment? No. Such legislation would require the sex offender to reregister and notify local law enforcement within five working days of changing residence or acquiring a second residence and to provide a DNA sample, make certain information about the sex offender available online, and permit a member of the public to inquire whether a particular person must register as a sex offender. In Smith v. Doe, supra, 538 U.S. at pages 98-99, the Supreme Court concluded registration and making information publicly accessible historically have not been deemed punitive. Reregistration upon changing residence, DNA sampling, and public access to information about the offender do not impose physical restraint "and so do[] not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint." (Id. at p. 100.)

The purpose of the sex offender registration laws is to make convicted sex offenders readily available for police surveillance at all times. The purpose of the DNA sampling and collection laws is to establish a DNA database to assist in the identification, {Slip Opn. Page 14} arrest, and prosecution of criminals. (People v. Travis, supra, 139 Cal.App.4th at p. 1295.) The purpose of public notification is "to inform the public for its own safety, not to humiliate the offender." (Smith v. Doe, supra, 538 U.S. at p. 99.) The legislation would have a rational connection to those nonpunitive purposes, and would not be excessive in relation to those purposes. The additional burden on the sex offender of having to reregister and provide a DNA sample is no more onerous than necessary to achieve those purposes. (Castellanos, supra, 21 Cal.4th at p. 796.) Any humiliation the offender might suffer from public notification and access to information "is but a collateral consequence of a valid regulation." (Smith v. Doe, supra, 538 U.S. at p. 99.)
 
DISPOSITION


The judgment is affirmed. Milligan is not, and on release from prison will not be, subject to the SPPCA's residency restrictions and GPS monitoring requirements based on the offenses now subjecting him to sex offender registration because he committed those offenses before the SPPCA's effective date.

Rylaarsdam, Acting P. J., and Moore, J., concurred.

­FN 1. All statutory references are to the Penal Code. Although section 290 was repealed and replaced by the Sex Offender Registration Act, effective October 13, 2007 (Stats. 2007, ch. 579, § 8, p. 3741), in this opinion we refer, unless indicated otherwise, to the version of section 290 in effect at the time of Milligan's guilty plea to the current offense.

­FN 2. We invited the parties to submit letter briefs addressing three issues: (1) whether the trial court ordered Milligan to comply with the SPPCA's residency restrictions and GPS monitoring requirements; (2) whether the SPPCA's residency restrictions and GPS monitoring requirements apply retroactively or prospectively only; and (3) whether the SPPCA's residency restrictions and GPS monitoring requirements, if applied to Milligan, would violate the ex post facto clauses of the United States Constitution and the California Constitution. Both the Attorney General and Milligan submitted letter briefs in response.


CA - City rewrites sex offender ordinance

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11/16/2008

By Paul Eakins, Staff Writer

Council will vote on law Tuesday after updating the original due to a pending lawsuit.

LONG BEACH - City attorneys have rewritten a controversial sex offender ordinance whose constitutionality is being challenged in a lawsuit.

The ordinance, which will go to the City Council for approval Tuesday, no longer applies to current registered sex offenders, eliminates an anti-loitering provision that created "child safety zones," and limits to one the number of sex offenders who can live in a single unit, rather than in an entire multi-unit building.

The council meets at 5 p.m. Tuesday in City Hall, 333 W. Ocean Blvd.

The council approved the original ordinance in March in response to Alamitos Beach residents who were concerned about an apartment building at 1149 E. First St. that was housing more than a dozen registered sex offenders.

The law builds on existing state laws that restrict where sex offenders may live, but is much more draconian and, critics claim, illegal.

Under threat of litigation, City Attorney Robert Shannon suspended enforcement of the law in April, but that didn't stop the legal action.

Reversing course

Last month, attorneys representing 35 sex offenders filed a lawsuit claiming that the ordinance was unconstitutional because it applies a retroactive punishment.

The rewritten law appears to resolve that issue.

The ordinance now defines a sex offender as "any person convicted of a crime on or after the effective date of this ordinance," which means current sex offenders won't be affected by the law.

If the ordinance is approved Tuesday, it will return to the council for a final vote likely Dec. 2 and then must be signed by the mayor. It would go into effect 31 days after the mayor's approval.

"It's not ideal, but it's legally defensible," said Councilwoman Suja Lowenthal, who had pushed for the ordinance in response to the Alamitos Beach concerns in her 2nd District. "Ideally, this is not everything the residents nor the (elected officials) would have hoped for."

Sarah Stockwell, a Fountain Valley attorney representing sex offenders in the lawsuit, said the revised ordinance satisfies her concerns.

"It protects all of our clients," Stockwell said. "Now it's just negotiating how we end the lawsuit."

New rules

Under the sex offender ordinance, no more than one sex offender can live in a single unit unless the sex offenders are related by blood, marriage or adoption; no property owner or manager may knowingly rent any unit within a multi-family building to more than one sex offender; and no more than one sex offender can stay in a single room at a hotel, motel or inn, unless related.

The ordinance creates "residential exclusion zones" - a 2,000-foot radius around child-care centers, parks and schools - where sex offenders aren't allowed to live. In this densely populated city, that provision makes most of Long Beach off-limits to any new sex offenders who commit their crimes after the law takes effect.

An estimated 800 registered sex offenders live in Long Beach.

The ordinance originally also established "child safety zones" within 300 feet of areas where children congregate and where sex offenders would not be allowed to loiter, but that language has been stricken from the law.

The lawsuit had challenged this loitering provision as well, claiming it was too vague.

"The question becomes at what point does lunch at McDonald's become loitering without lawful business or purpose," Stockwell said.

According to Deputy City Attorney Cristyl Meyers, current loitering laws can address that issue.

While the ordinance originally was created to deal with the "clustering" of large numbers of sex offenders in a single apartment building, the law is now less restrictive in addressing this. Sex offenders are limited to one per unit in duplexes and multi-unit buildings, but not one per structure, as the law originally read.

Meyers said the lawsuit had played a role in the city's decision to change the law, but that also as other cities passed similar laws, Long Beach looked to tweak its own.

Lowenthal said the ordinance was changed to avoid a long, expensive legal battle, but that she stands by the original law.

"I am fully confident in the constitutionality and in the position that we took," Lowenthal said.

Legal uncertainties

However, there seems to be some confusion as to what, exactly, the rewritten law entails.

Meyers told the Press-Telegram last week that sex offenders are safe in their current homes, but that when they move they will face the restrictions outlined in the ordinance.

Marge Landress, who owns an apartment building next to the one at 1149 E. First St. that started the controversy, said that was the way she had understood it as well when Meyers spoke to the Alamitos Beach Neighborhood Association last week.

But the ordinance doesn't seem to support that contention, and Stockwell said her interpretation is that the law can't affect any current registered sex offender, even if they move.

It was unclear whether Meyers was referring to sex offenders only as those defined under the ordinance or in general, and she didn't return phone calls seeking clarification Thursday and Friday.

This issue aside, Stockwell said other residency situations could eventually lead to new legal issues under the ordinance.

If a Long Beach property owner who lives close to a school or park is convicted of a sex crime and must register as a sex offender, could the new ordinance force that person from his home?

"Just because you have a conviction doesn't take away your right to own property," Stockwell said.


UK - Man tells of 'paedophile ordeal'

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10/08/2008

A man has told a court he was accused of being a paedophile by animal rights activists because of his company's links to an animal testing laboratory.

Vincent Howard of Biocair in Cambridge also said he was sent a hoax bomb.

Five defendants, from Hampshire, London and Newcastle, allegedly blackmailed firms connected to Huntingdon Life Sciences (HLS) in Cambridge.

The five, said to have been part of Stop Huntingdon Animal Cruelty (SHAC), all deny conspiracy to blackmail.

Heather Nicholson, 41, of Eversley, Hampshire; Trevor Holmes, 51, of Newcastle; Gerrah Selby, 20, of Chiswick, London; Daniel Wadham, 21, of Bromley, south London and Gavin Medd-Hall, 45, of Croydon, south London, are accused of being closely involved in a campaign, from 2001 until 2007, which targeted companies in Britain and Europe.

Three other people, Gregg Avery and Natasha Avery, both of Hampshire, and Daniel Amos, of no fixed address, pleaded guilty to conspiracy to blackmail, Winchester Crown Court court was told.

Paint stripper

Biocair and its employees were targeted in 2004, jurors were told on Wednesday.

SHAC, which was based at near Hook, Hampshire, demonstrated outside the company's offices as part of a worldwide campaign to target suppliers or any company with a secondary link with HLS, jurors heard.

Biocair, a distribution company, did not deal directly with HLS but it did work for firms that had links with it.

Giving evidence, operations director Mr Howard said in September 2004 his and his partner's cars had paint stripper poured over them and tyres punctured.

He said letters were later circulated in the village where he lived in Cambridgeshire falsely accusing him of being a convicted paedophile.

'Completely bogus'

"There were 25 to 30 sent around the village, if not more, and it became fairly well known in the village and people offered to pass them on (to the police) without opening them up for forensics," he explained.

When asked how it had affected him, Mr Howard replied: "I was very lucky. I work long hours and I didn't have that many connections with the village.

"Whereas my partner was well connected with the schools and well known in the village, which helped a lot because she was able to contact the schools and say these letters were completely bogus."

The couple also received a hoax bomb through the post in April 2006, the jury heard.

"My partner was suspicious because there were inaccuracies on the address label," he explained.

"I probably unwisely asked her to lift up a bit and look inside. She saw a DVD case with wires inside and I started to come home straight away."

The trial continues.