California Court of Appeal Jul 1, 2015 No. D058263Unpublished
Filed 7/1/15 P. v. Hass CA4/1 OPINION ON TRANSFER FROM THE CALIFORNIA SUPREME COURT
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D058263
Plaintiff and Respondent,
v. (Super. Ct. No. SCD225553)
CHRISTOPHER HASS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R.
Gill, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General; Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
This case, which concerns an Apprendi1 challenge to residency restrictions
imposed on sex offender registrants, has been transferred back to this court by the
California Supreme Court for reconsideration in light of People v. Mosley (2015) 60
Cal.4th 1044 (Mosley).
Christopher Hass pled guilty to criminal threats, stalking, and harassment, and the
trial court sentenced him to prison. The trial court also ordered him to register as a sex
offender under the discretionary registration statute applicable when the court finds the
defendant committed an offense due to sexual compulsion or for sexual gratification.
(Pen. Code,2 § 290.006.) On appeal to this court, Hass challenged the discretionary sex
offender registration order. He argued it was imposed in violation of his Apprendi jury
trial rights because the trial court made factual findings that resulted in a punishment
exceeding the maximum punishment otherwise authorized by a jury verdict or guilty
plea. He contended the sex offender registration order was punitive in nature, so as to
trigger Apprendi principles, because it required him to comply with the residency
restrictions imposed on sex offender registrants under section 3003.5, subdivision (b).
In our original decision, we concluded the residency restrictions were punitive if
imposed for a lifetime (as opposed to solely during a parole period), and accordingly a
lifetime residency restriction could not be imposed based on factual findings made by the
court. We upheld the sex offender registration order on the basis that it was not punitive
1 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
2 Subsequent undesignated statutory references are to the Penal Code. 2
and it was severable from the residency restriction. We modified the judgment to state a
lifetime residency restriction could not be imposed on Hass. Subsequent to our decision
in Hass's appeal, the California Supreme Court decided in Mosley that a sex offender
residency restriction is not a penalty within the meaning of Apprendi. Based on Mosley,
we affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Hass was charged with 12 counts of making criminal threats and stalking, and one
count of misdemeanor harassment by telephone. According to the prosecution's
evidence, from 2007 to 2010, Hass repeatedly sent letters and made phone calls to nine
women at their place of employment in which he made demands and threatened physical
violence (including sexual violence) if the women did not comply with his demands.
Hass pled guilty to nine of the counts (four counts of stalking, four counts of
making criminal threats, and one count of harassment by telephone) in exchange for
dismissal of the remaining counts. The court sentenced Hass to seven years eight months
in prison. The court also exercised its discretion to order that Hass register as a sex
offender, finding that Hass's behavior was motivated by "underlying sexual fantasies" and
there was a danger of ongoing behavior as shown by the duration of the incidents and the
fact he had engaged in similar incidents in the past.
DISCUSSION
The lifetime sex offender registration requirement imposed under section 290 is
mandatory for a defendant convicted of a statutorily-specified sex offense (§ 290, subd.
(c)), and discretionary for a defendant convicted of any other offense if the court finds the
3
defendant "committed the offense as a result of sexual compulsion or for purposes of
sexual gratification" (§ 290.006). Section 3003.5 imposes residency restrictions on sex
offender registrants, stating: "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).)
In his original appeal, Hass argued that because the trial court made the sexual-
compulsion findings needed to support imposition of the discretionary sex offender
registration requirement, his Apprendi jury trial rights were violated. Under the Apprendi
rule, unless an exception applies, a jury must make (or a defendant must admit) all factual
findings that " 'increase[] the penalty for a crime beyond the prescribed statutory
maximum . . . .' " (Mosley, supra, 60 Cal.4th at p. 1056.) As reflected in this rule,
Apprendi principles are not applicable unless the consequence imposed on the defendant
involves a penalty. (Mosley, at pp. 1056, 1062.) Hass recognized in his original appeal
that it was well established that the sex offender registration requirement was not viewed
as a penalty (see id. at p. 1054), but he asserted the residency restriction was punitive in
nature so as to trigger application of Apprendi.
In a facial challenge to the sex offender residency restrictions based on Apprendi,
Mosley resolved this issue. Mosley held that Apprendi did not apply to sex offender
residency restrictions for multiple reasons, including that the restrictions are not "an
added 'penalty' for [the defendant's] conviction to which Apprendi applies." (Mosley,
supra, 60 Cal.4th at pp. 1049-1050, 1062-1069.)
4
After transfer of the case to this court, Hass filed a brief conceding that we are
bound by Mosley's holding that the imposition of a residency restriction does not concern
Apprendi jury trial rights. Although he reiterates his Apprendi challenge to the sex
offender registration order, he does so to preserve his right to pursue the issue in federal
courts.
Based on Mosley, there has been no violation of Hass's jury trial rights under
Apprendi, and we affirm the judgment in its entirety.3
3 We note that when Hass is released from prison on parole, any imposition of the sex offender residency restrictions on him must comport with the dictates of the California Supreme Court in In re Taylor (2015) 60 Cal.4th 1019. In Taylor (decided the same date as Mosley), the court resolved an as-applied challenge to the constitutionality of the section 3003.5 sex offender residency restrictions for San Diego County parolees, holding the residency restrictions could not be applied in blanket fashion to all sex offender registrants on parole; however, residency restrictions could be imposed on a case-by-case basis as a condition of parole "as long as they are based on, and supported by, the particularized circumstances of each individual parolee." (Id. at pp. 1023, 1042.) 5
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
AARON, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that sex offender residency restrictions do not constitute a penalty under Apprendi v. New Jersey, and therefore, the trial court's discretionary imposition of sex offender registration did not violate the defendant's jury trial rights.
Issues
Does the imposition of sex offender residency restrictions constitute a penalty that triggers Apprendi jury trial rights?
Did the trial court violate the defendant's Apprendi rights by making factual findings to support discretionary sex offender registration?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Mosley held that Apprendi did not apply to sex offender residency restrictions for multiple reasons, including that the restrictions are not "an added 'penalty' for [the defendant's] conviction to which Apprendi applies."”
“Based on Mosley, there has been no violation of Hass's jury trial rights under Apprendi, and we affirm the judgment in its entirety.”