Thursday, November 14, 2013


Justice scales
Original Article

We revisit defendant Mosley, who a jury acquitted of any sexual offense. The jury found him guilty only of misdemeanor assault. Yet the court ordered defendant to register as a sex offender based upon its own factual findings about his motivations—facts not proved beyond a reasonable doubt to the jury.

In a prior opinion, we held the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. Defendant has the right to a jury trial on any facts (other than a prior conviction) that increase his offense's penalty beyond the statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi).) The court's imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica's Law, The Sexual Predator Punishment and Control Act, approved in 2006 as Proposition 83. Jessica's Law contains a residency restriction that bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. This residency restriction constitutes punishment due to its overwhelmingly punitive effect.

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