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50A - ORDINANCE - SEX OFFENDERS
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05/21/2012
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50A - ORDINANCE - SEX OFFENDERS
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5/17/2012 1:48:22 PM
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City Clerk
Doc Type
Agenda Packet
Agency
Police
Item #
50A
Date
5/21/2012
Destruction Year
2017
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<br /> <br /> <br /> <br /> <br /> <br /> There are two types of constitutional challenges: (1 ) a facial challenge, which considers only the <br /> text of the law and seeks to void the law as a whole, and (2) an as-applied challenge, which <br /> considers the law's application to a particular challenger's facts. (Tobe v. City of Sar,te Ana <br /> (1995) 9 Cal.4th 1069, 1084.) To defeat the entire law in a facial challenge, the challenger must <br /> show it "inevitably pose[s] a present total and fatal conflict with applicable constitutional <br /> prohibitions." (Ibid.) For example, a particular offender may argue a law aimed at all sex <br /> offenders - as opposed to a law tailored to sex offenders whose victims were children - is not <br /> narrowly tailored. It seems unlikely, however, that a court would find the law totally conflicts with <br /> constitutional principles, since many of the registered sex offenders committed crimes against <br /> children. Furthermore, many offenders have both adult and child victims (e.g. Rodney Alcala as <br /> further explained later) while others commit crimes which may lead to future victims (e.g. <br /> indecent exposure defendants commit offenses in public places with children). Thus, the law <br /> would not be constitutionally overbroad when applied to those offenders. <br /> A particular offender could bring an as-applied constitutional challenge. Such a challenge <br /> considers whether the law is being applied in a constitutionally impermissible manner. (Tobe v. <br /> City of Santa Ana, supra, 9 Cal-4th 1069, 1084.) The court evaluates the propriety of the <br /> application on a case-by-case basis to determine whether to relieve the defendant of the <br /> sanction. (Ibid.) This could preclude application of the relevant law to a particular sex offender, <br /> but would not render the law constitutionally infirm as to others. <br /> Retroactivity <br /> In general, application of a law is retroactive only if it attaches new legal consequences to, or <br /> increases a party's liability for, an event, transaction, or conduct that was completed before the <br /> law's effective date. (In re E.J., supra, 47 Cal.4th 1258, 1273.) Therefore, the critical question <br /> for determining retroactivity usually is whether the last act or event necessary to trigger <br /> application of the statute occurred before or after the statute's effective date. (Ibid.) <br /> In In re E.J., supra, 47 Cal.4th 1258, the court indicated it may be impermissible to apply the <br /> 2,000-foot residency restriction to a sex offender who acquired housing before the law's <br /> effective date. (Id. at pp. 1275-1276.) The offender would not have had notice of the restriction <br /> before the conduct to which the law speaks occurred. (Id. at p. 1276, citing Doe v. <br /> Schwarzenegger (E.D. Cal. 2007) 476 F.Supp.2d 1178, 1179, fn. 1 (residency restriction could <br /> not be applied retroactively to persons paroled and released from prison prior to the law's <br /> effective date) <br /> For our purposes, the last act necessary to trigger application Of child safety zone laws would <br /> seem to be the offender's unlawful entry and/or loitering upon property within a protected zone. <br /> Thus, application to all offenders would not seern to be impermissibly retroactive. <br /> Ex Post Facto <br /> An impermissible ex post facto law is one which makes more burdensome the punishment for a <br /> crime after its commission. (In re E.J., supra, 47 Cal.4th 1258, 1279.) Because the child safety <br /> zone laws would not be applied retroactively, they would not raise ex post facto issues. (/n re <br /> E.J, supra, 47 Cal.4th 1258, 1279-1280 [ex post facto only applies to laws applied <br /> retroactively]-) <br /> 50A-7 <br />
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