PEOPLE v. FIORETTI

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Court of Appeal, Sixth District, California.

 The PEOPLE, Plaintiff and Respondent, v. Joseph Lawrence FIORETTI, Defendant and Appellant.

No. H015792.

Decided: April 10, 1997

 Thomas Knutsen, Newark, for Defendant and Appellant. George W. Kennedy, District Attorney, Santa Clara County, Evelyn A. Peyton, Deputy District Attorney, Michael L. Rossi, Deputy District Attorney, for Plaintiff and Respondent.

Appellant Joseph Lawrence Fioretti was convicted of violating Penal Code section 290, subdivision (f),1 which requires that sex offenders subject to the registration requirements of section 290 inform authorities of any change of residence.   In defense he maintained he was not required to re-registered under section 290, subdivision (f), because he had been relieved of all registration requirements in 1983, when his probation was discharged and his record was cleared by court order pursuant to section 1203.4.   At the time appellant obtained his section 1203.4 clearance, however, section 290.1, enacted effective January of 1982, was the law.   (Stats.1981, ch. 105, p. 794, § 1.)   That section provides that registration requirements continue notwithstanding a section 1203.4 record clearance.

Appellant argues here that section 290.1 cannot be applied to him without violating constitutional ex post facto protections because it was enacted after he had committed his original offense in 1980 and it retroactively increased the punishment for that offense.   We reject appellant's ex post facto claim and affirm his conviction for violating section 290, subdivision (f).

BACKGROUND

Appellant was convicted of a violation of section 288, subdivision (a), on December 30, 1980, relating to an offense committed on August 16, 1980.    On April 10, 1981, he was sentenced to three years formal probation, subject to various conditions, including the requirement that he register under section 290 as a sex offender.   He registered on December 8, 1981.   At all of these times the law provided that a probationer who fulfilled the conditions of probation or received an early discharge from probation could have his conviction expunged from the record and “be released from all penalties and disabilities resulting from the offense․” (§ 1203.4.)

Effective January 1, 1982, section 290.1 was added to the Penal Code and expressly provided that an expungement under section 1203.4 does not relieve a felony sex offender from the continuing duty to register under the provisions of section 290.  (Stats.1981, ch. 105, p. 794, § 1.)

On April 8, 1983, the superior court terminated appellant's probation after 24 months (§ 1203.3) and granted him a record clearance pursuant to section 1203.4.   The order made no reference to registration requirements, simply providing that appellant was granted a “record clearance pursuant to section 1203.4 P.C.”

In 1990 the San Jose Police Department became aware of facts suggesting that appellant had relocated his residence and had not informed law enforcement agencies of this change pursuant to section 290, subdivision (f).

On May 13, 1994, a complaint was filed in the Municipal Court of Santa Clara County, alleging that between May 6, 1993, and May 6, 1994, appellant violated the requirements of section 290 by failing to register after changing his residence.   Appellant entered a plea of not guilty and moved to dismiss the complaint on grounds that he had been relieved from registration requirements by the 1983 clearance of his record under section 1203.4.

The municipal court denied the motion to dismiss on April 28, 1995, and the superior court denied appellant's writ petition.   On September 29, 1995, this court also denied writ relief, for the reason that ordinary appellate remedies were adequate.

Thereafter, appellant withdrew his not guilty plea and entered a plea of nolo contendere to the charge of violating section 290.   He appealed the ensuing judgment, as well as the order denying his motion to dismiss, to the appellate department of the superior court.   The appellate panel affirmed the judgment on July 17, 1996, and subsequently certified the case for transfer to this court.   We accepted transfer September 6, 1996.

ARGUMENT

 A law which makes more burdensome the punishment for a crime after its commission violates ex post facto provisions of the United States  and California Constitutions.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288, 279 Cal.Rptr. 592, 807 P.2d 434;  People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955;  Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30;  U.S. Const., art. I, § 9, cl. 3;  Cal. Const., art. I, § 9.)   Simply stated, the rule is that “[l]egislatures may not retroactively ․ increase the punishment for criminal acts.”  (Collins v. Youngblood, supra, at p. 43, 110 S.Ct. at 2719.)

Here, at the time section 290.1 was enacted, appellant was serving his term of probation and was subject to all registration requirements, including the requirement under subdivision (f) to inform authorities of a change of residence.   Although he was entitled to petition the court to obtain a record clearance if he successfully completed probation, he had not yet done so.   At the time he initiated the proceeding to have his record cleared, section 290.1 was the law, and had been the law for over a year.   It provided that “[n]otwithstanding Section 1203.4 ․ a person convicted of a felony sex offense shall not be relieved from the duty to register under Section 290.”   Thus in 1983, when appellant petitioned the court under section 1203.4, the court was without power under prevailing law to relieve him from the continuing registration requirements of section 290.

 Section 290.1 did not impose any additional requirements on appellant, since he was at all times subject to the provisions of section 290.   He argues that section 290.1 deprived him of the opportunity to be relieved entirely of the requirements of section 290 and that this constituted increased punishment for purposes of the ex post facto clause.   We disagree.   In Collins v. Youngblood, supra, the Supreme Court clarified the punitive aspect of the ex post facto analysis.   Prior to Collins, a line of cases had included a “disadvantage” to a defendant as a component of the ex post facto analysis.  (See, e.g., Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-65, 67 L.Ed.2d 17;  Kring v. Missouri (1883) 107 U.S. 221, 228-229, 2 S.Ct. 443, 449-50, 27 L.Ed. 506;  Thompson v. Utah (1898) 170 U.S. 343, 352-353, 18 S.Ct. 620, 623-24, 42 L.Ed. 1061.)  Collins refocussed the analysis on defendant's punishment.  “Under Collins, ․ the ex post facto clause prohibits not just a burden but a more burdensome punishment.”  (People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   The proper inquiry post-Collins is not whether the law results in a disadvantage to the person affected by it but rather whether it increases the penalty by which a crime is punished.   (Ibid.)

Appellant argues that the disadvantage to him resulting from the enactment of section 290.1 was similar to the effect of laws changing a defendant's eligibility to receive a lesser sentence (Lindsey v. Washington (1937) 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182) or changing sentencing guidelines (Miller v. Florida (1987) 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351).   Again, we disagree.   Appellant's sentence was not affected here.   Moreover, pre-Collins cases based on a “disadvantage” to defendant are out of step with accepted ex post facto analysis.

 Under current standards, where a statute has primarily a legitimate regulatory purpose, it is not considered punitive, even though it may also have a punitive purpose and even if it disadvantages the person affected by it.  (Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1684, 54 Cal.Rptr.2d 600;  U.S. v. Ursery (1996) 518 U.S. 267, ---- - ----, 116 S.Ct. 2135, 2145-2146, 135 L.Ed.2d 549;  De Veau v. Braisted (1960) 363 U.S. 144, 160, 80 S.Ct. 1146, 1154-55, 4 L.Ed.2d 1109;  Doe v. Poritz (1995) 142 N.J. 1, 662 A.2d 367;  State v. Carpenter (1995) 197 Wis.2d 252, 541 N.W.2d 105, 113.)   Here, the purpose of section 290.1, as with registration requirements in general, was to provide local police authorities with information about the whereabouts of convicted sex offenders, thereby facilitating the investigation of sex crimes.  (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 322 (1981-1982 Reg.Sess.))   Protecting the public and providing for the safety of its citizens is a legitimate non-punitive purpose.  (State v. Carpenter, supra, 541 N.W.2d at p. 112.)   Under current ex post facto analysis, section 290.1 is not so punitive in purpose or effect as to override its regulatory purpose.  (U.S. v. Ursery, supra, 518 U.S. at pp. ---- - ----, 116 S.Ct. at pp. 2145-2146.)   Indeed virtually every court recently considering sex offender registration laws has held that these requirements are regulatory rather than punitive.   (See, e.g., Kitze v. Commonwealth (1996) 23 Va.App. 213, 475 S.E.2d 830;  Opinion of Justices to the Senate (Mass.1996) 423 Mass. 1201, 668 N.E.2d 738;  State v. Myers (1996) 260 Kan. 669, 923 P.2d 1024;  Artway v. Attorney General of State of N.J. (3rd Cir.N.J.1996) 81 F.3d 1235, 1267;  State of Arizona v. Noble (1992) 171 Ariz. 171, 829 P.2d 1217, 1219-1220;  Washington v. Ward (1994) 123 Wash.2d 488, 869 P.2d 1062.)   While no California court has directly addressed the issue, the Supreme Court in People v. McVickers, supra, cited with approval the case of State of Arizona v. Noble:  “State v. Noble ․ held that a statute requiring registration of sex offenders did not violate the ban on ex post facto legislation as applied to a defendant whose crimes preceded its enactment because the overriding purpose of the statute was ‘facilitating the location of child sex offenders by law enforcement personnel,’ a purpose unrelated to punishment.”  (People v. McVickers, supra, 4 Cal.4th at p. 87, 13 Cal.Rptr.2d 850, 840 P.2d 955, quoting State of Arizona v. Noble, supra, at p. 1224.)

Appellant claims that the current state of the law is irrelevant to his claim.   He contends that at the time he committed his offense in 1980, registration requirements were considered under California law to be part of the punishment for the crime, and were subject to expungement along with the  conviction in a section 1203.4 proceeding.  (Kelly v. Municipal Court of City and County of San Francisco (1958) 160 Cal.App.2d 38, 324 P.2d 990.)   The subsequent enactment of section 290.1, he argues, therefore operated to increase his punishment by affecting his ability to obtain this relief.   In Kelly, the defendant was charged with violating section 290 and claimed, as has appellant, that a previous expungement of his prior conviction under Penal Code section 1203.4 had relieved him of the duty to register.   The court of appeal agreed with Kelly.   It considered the requirements set forth in section 290 to be one of the “penalties and disabilities resulting from the offense or crime of which [defendant] has been convicted,” within the meaning of Penal Code section 1203.4, which would therefore be released by a record clearance under that section. (§ 1203.4.)

At the time defendant in Kelly was granted a record clearance, however, there was no express limitation on the court's power in a section 1203.4 proceeding to relieve a defendant of the continuing duty to register.   Indeed the Legislature enacted section 290.1 with Kelly in mind, specifically intending thereby to correct a perceived flaw in the registration statutes which allowed convicted sex offenders to avoid continuing compliance with registration requirements by obtaining an expungement of their convictions.   (See Assem.Com. on Crim.Justice analysis of Assem. Bill No. 322 (1981-1982 Reg.Sess.) as amended Apr. 23, 1981;  Sen.Com. on Judiciary, Department of Legal Affairs Bill Rep. on Assem. Bill No. 322 (1981-1982 Reg.Sess.), June 29, 1981.)   Had appellant obtained his record clearance prior to the enactment of section 290.1, we would agree that its application to him would be retroactive.   However, at the time the court granted his clearance, section 290.1 rather than Kelly controlled the proceedings and the superior court had no authority to affect appellant's continuing duty to register under section 290.

Appellant points out that Kelly was later cited with approval by the Supreme Court in In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, a case decided after section 290.1 was enacted and after appellant's record clearance.  Reed, however, is distinguishable for several reasons.  Reed concerned a misdemeanor defendant.  Section 290.1, as originally enacted, applied only to felony sex offenders.   Thus when Reed was decided, Kelly was still applicable to misdemeanants requesting a record clearance.   Furthermore, the court in Reed was addressing a claim that the mandatory registration requirements of section 290 constituted cruel and unusual punishment when applied automatically to all persons convicted of a misdemeanor violation of section 647, subd. (a) [soliciting lewd or dissolute conduct in a public place].   The court's discussion of the punitive aspects of mandatory sex offender registration must be seen in that context.

The court in Reed acknowledged that registration requirements have not historically been regarded as punishment.  (In re Reed, supra, 33 Cal.3d at p.  920, 191 Cal.Rptr. 658, 663 P.2d 216.)   Furthermore, the court conceded that “the Legislature may reasonably have intended that sex offender registration serve as a law enforcement tool to facilitate criminal investigations ․” (id. at p. 922, 191 Cal.Rptr. 658, 663 P.2d 216) and that registration statutes may incorporate aspects of both punishment and regulation.  (Id. at p. 922, fn. 8, 191 Cal.Rptr. 658, 663 P.2d 216.)   However, the court found that the section 290 registration requirements were excessively punitive in relation to the legitimate regulatory purposes.   On balance, the court concluded that registration requirements were to be considered “a form of punishment” within the meaning of article I, section 17, of the state Constitution.

Because the issue in Reed involved a claim of cruel and unusual punishment, the court focused on the relationship between defendant's offense and the mandatory registration requirements.   The court noted that there were “relatively minor” offenses for which persons could be convicted under section 647, subdivision (a), that no one need be “victimized” in the traditional criminal sense (In re Reed, supra, 33 Cal.3d at p. 923, 191 Cal.Rptr. 658, 663 P.2d 216), that a conviction could result from a single incident of sexual indiscretion, involving no violence, and that Reed himself was “not the prototype of one who poses a grave threat to society.”  (Id. at p. 924, 191 Cal.Rptr. 658, 663 P.2d 216.)   The court further observed that there were numerous more serious sex offenses not requiring lifetime registration, and that California's mandatory registration laws were relatively severe in comparison with other jurisdictions.   The court concluded that a requirement of lifetime compliance with sex offender registration laws was out of proportion to Reed's offense.   It therefore invalidated section 290, as applied to persons convicted of misdemeanor violations of section 647, subdivision (a), as cruel and unusual punishment.

Appellant argues that Reed represents the law in California, standing for the proposition that sex offender registration requirements are to be considered a form of punishment for all purposes.   We believe the holding in Reed is more properly limited to its particular circumstances and to the legal issue addressed by the court in that case.   The court in Reed emphasized the fact that defendant was an otherwise exemplary citizen who was involved in a “relatively simple sexual indiscretion” with no victim.  (In re Reed, supra, 33 Cal.3d at p. 924, 191 Cal.Rptr. 658, 663 P.2d 216.)   Appellant, on the other hand, was convicted of a felony sex offense, namely lewd and lascivious conduct upon a child (Pen.Code, § 288, subd. (a).)  Furthermore, at the time Reed was decided, only three other states besides California had sex offender registration laws, all of which were less stringent than California's.  (In re Reed, supra, 33 Cal.3d at p. 925, 191 Cal.Rptr. 658, 663 P.2d 216.)   Now sex offender registration laws are a widely accepted means of aiding law enforcement authorities in preventing and investigating sex crimes, and have been found by courts addressing the issue to have a legitimate regulatory purpose.   In Reed, the court held simply that insofar as  section 290 requires registration of all persons convicted under section 647, subdivision (a), it violates article I, section 17 of the California Constitution.   We do not believe that holding is susceptible of the broad application appellant would give it to ex post facto claims under article I, section 9.

 Appellant raises two further issues, which require brief response.   He argues that the statute of limitations expired prior to the filing of this action, since authorities knew or should have known that he had changed his residence at some time prior to December of 1990 and did not file the complaint against him until 1994.  In re Parks (1986) 184 Cal.App.3d 476, 229 Cal.Rptr. 202 decides this issue.   Failure to register under section 290 is a continuing offense to which the statute of limitations does not apply.  (Id. at p. 480, 229 Cal.Rptr. 202.)

 Appellant's claim of equitable estoppel also fails.   There is no evidence of government conduct in this case which would indicate any official representation to appellant that he was not required to comply with registration requirements.   The order granting his petition in 1983 provided only that the record clearance was granted “pursuant to section 1203.4.”   Under section 1203.4 at that time the court was without power to relieve him of the continuing duty to register.

DISPOSITION

We affirm the judgment against appellant for a violation of Penal Code section 290, subdivision (f).

FOOTNOTES

1.   All statutory references are to the Penal Code.

BAMATTRE-MANOUKIAN, Associate Justice.

COTTLE, P.J., and MIHARA, J., concur.