MORENO, J., Dissenting.—
I.
I respectfully dissent.
Penal Code section 3003.5, subdivision (b) (section 3003.5(b))1 cannot be applied to those who suffered their convictions before the date Proposition 83 (Prop. 83, as approved by the voters, Gen. Elec. (Nov. 7, 2006)) was enacted.. Nothing in the language of the proposition or in the relevant extrinsic materials supports any other conclusion. Therefore, section 3003.5(b) does not apply to these petitioners and I dissent from the majority opinion’s contrary conclusion.
Before I turn to the majority opinion, I begin with a review of “well-established general principles governing the question whether a statutory or constitutional provision should be interpreted to apply prospectively or retroactively.” (Strauss v. Horton (2009) 46 Cal.4th 364, 470 [93 Cal.Rptr.3d 591, 207 P.3d 48].) There is a statutory presumption against retroactive application of penal laws, articulated in section 3, first enacted in 1872, which states: “No part of [the Penal Code] is retroactive, unless expressly so declared.” This presumption is, as we have noted, rooted in federal “constitutional principles” reflected in such provisions as the ex post facto clause, the Fifth Amendment’s takings clause, and the due process clause of the United States Constitution. (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 [123 Cal.Rptr.2d 40, 50 P.3d 751].)
A statute is retroactive when it “change[s] the legal consequences of past conduct by imposing new or different liabilities .. . .” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 291 [279 Cal.Rptr. 592, 807 P.2d 434].) “California continues to adhere to the time-honored principle . . . that in 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.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209 [246 Cal.Rptr. 629, 753 P.2d 585], italics added.) As we have repeatedly explained, absent an express declaration of retroactivity, “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, italics added.) The key here is clarity: “a statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature [or the voters] intended retroactive application.” (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 844, second italics added.)
[1287]Ambiguous, vague or inconclusive statements cited as proof of an intention that a statute be applied retroactively are not sufficient for that purpose. “[A]t least in modem times, we have been cautious not to infer the voters’ or the Legislature’s intent on the subject of prospective versus retrospective operation from ‘vague phrases’ [citation] and ‘broad, general language’ [citation] in statutes, initiative measures and ballot pamphlets.” (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229-230 [46 Cal.Rptr.3d 57, 138 P.3d 207].) When a statute is ambiguous regarding retroactivity, it is construed to be prospective. (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) Moreover, “a remedial purpose does not necessarily indicate an intent to apply the statute retroactively. Most statutory changes are, of course, intended to improve a preexisting situation and to bring about a fairer state of affairs, and if such an objective were itself sufficient to demonstrate a clear legislative intent to apply a statute retroactively, almost all statutory provisions and initiative measures would apply retroactively rather than prospectively.” (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1213.)
The question of whether Proposition 83 was intended to apply retroactively has already been recognized, asked, and answered by two decisions of the Court of Appeal and a federal district court judge. They unanimously concluded that Proposition 83 does not contain an express statement of retroactivity. The two Court of Appeal decisions are People v. Whaley (2008) 160 Cal.App.4th 779 [73 Cal.Rptr.3d 133] and Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 [68 Cal.Rptr.3d 142]. The provision of Proposition 83 at issue in both of those cases was the part of the initiative that extended the commitment terms of persons determined to be sexually violent predators under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) from two years to an indeterminate term. (People v. Whaley, supra, 160 Cal.App.4th at pp. 785-786; Bourquez v. Superior Court, supra, 156 Cal.App.4th at pp. 1279-1280.)
In Bourquez, the retroactivity question was whether the new indeterminate term for sexually violent predators could be applied to individuals who had pending recommitment petitions at the time Proposition 83 was enacted. As the starting point of its analysis, the court observed: “Proposition 83 is entirely silent on the question of retroactivity, so we presume it is intended to operate only prospectively. The question is whether applying its provisions to pending petitions to extend commitment is a prospective application.” (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1288.) The court ultimately concluded that “[b]ecause a proceeding to extend commitment under the SVPA focuses on the person’s current mental state, applying the indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law. [Citation.] Applying Proposition 83 to pending petitions to extend [1288]commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Id. at p. 1289.)
People v. Whaley involved a different twist on the question of whether the change in the law regarding SVPA commitments could be applied retroactively. In Whaley, the People sought to amend the defendant’s 1999 SVPA commitment, which had been for two years, and convert it into an indeterminate term under Proposition 83. The trial court granted the People’s motion. On appeal, the order was reversed on the ground that applying Proposition 83 to a term of commitment imposed before its enactment constituted an impermissible retroactive application of the initiative. (People v. Whaley, supra, 160 Cal.App.4th at pp. 796-803.) Like the court in Bourquez, the Whaley court found that “[t]he language of Proposition 83 does not contain an express statement of retroactivity.” (Whaley, at p. 796.) Furthermore, “[a]lso absent is a clear indication in the statutory language, or in the voter information guide, that the voters intended an indeterminate term to be applied retroactively to completed commitment proceedings.” (Ibid.)
The court considered and rejected various interpretations of the statutory language and language in the ballot pamphlet advanced by the People to demonstrate an intent for retroactive application. Significantly, the court was not swayed even by its recognition “that the electorate’s intent regarding Proposition 83 was ‘to strengthen and improve the laws that punish and control sexual offenders.’ (Voter Information Guide, Gen. Elec. [(Nov. 7, 2006)] text of Prop. 83, p. 138.)” (People v. Whaley, supra, 160 Cal.App.4th at p. 801.)
While neither Bourquez nor Whaley involved the residency restriction enacted by Proposition 83, Doe v. Schwarzenegger (E.D.Cal. 2007) 476 F.Supp.2d 1178 did. In Doe, the federal district court held that section 3003.5(b) could not be applied retroactively to persons convicted of registrable offenses “prior to the effective date of the statute and who were paroled, given probation, or released from incarceration prior to that date.” (Doe, at p. 1179, fn. 1.) At the outset of its analysis, the district court cited the settled rule that “it [was] obligated to adopt the interpretation of the law that best avoids constitutional problems,” and expressed its concern that “reading [Proposition 83] retroactively would raise serious ex post facto concerns, and the court is obligated to avoid doing so if it can reasonably construe the statute prospectively.” (Id. at p. 1181.)
Like the courts deciding Bourquez and Whaley, the district court noted that Proposition 83 “does not expressly address the issue of retroactivity, but it is well-established in California that statutes operate prospectively unless there is clear evidence of intent to the contrary.” (Doe v. Schwarzenegger, supra, 476 [1289]F.Supp.2d at p. 1181.) The court concluded “it is not ‘very clear’ from extrinsic sources that the intent of the voters was to make [Proposition 83] retroactive.” (Id. at p. 1182.) The court rejected the state’s assertion that language in the ballot pamphlet regarding the number of registered sex offenders in California, and the intent of the initiative to create predator-free zones, evinced a clear intention that the initiative be retroactively applied. “First, the reference to the number of sex offenders in California is a neutral statement of fact, which voters could have reasonably construed as characterizing the scope of the problem and its potential expansion, rather than as purporting to address the problem in its entirety. Second, while the term ‘predator free zones’ is troubling, it is not ‘very clear’ that it contemplates retroactive application. Rather, it is the type of sloganeering to be expected of an argument in favor of the law, not to be taken literally. The [initiative] does not, for instance, bar sex offenders from entering the 2,000 feet zone around schools or parks; it only prohibits them from residing there. Accordingly, voters could reasonably interpret the quoted language as creating a goal of establishing ‘predator free zones,’ which the [initiative] takes one step toward achieving, albeit prospectively.” (Ibid.)
In light of this unanimity among the courts that have addressed the retroactivity issue, the majority opinion’s conclusion that application of section 3003.5(b) to these petitioners is prospective rather than retroactive is remarkable. The majority opinion reaches this conclusion purportedly by examining the “plain language” of section 3003.5(b) under which, it says, “any convicted sex offender already subject to the lifetime registration requirement who is released from custody on parole, whether it be after serving a term in custody for an initial sex offense conviction, a new sex offense conviction, or a new nonsex offense conviction, becomes subject to the new mandatory residency restrictions for the duration of his parole term.” (Maj. opn., ante, at p. 1272.)
Citing People v. Grant (1999) 20 Cal.4th 150 [83 Cal.Rptr.2d 295, 973 P.2d 72], the majority opinion reasons that the crucial date for the retroactivity analysis in this case is not the petitioners’ long ago convictions of the registrable offenses but the dates of their release on parole from recent, nonsexual offenses: “Section 3003.5(b) places restrictions on where a paroled sex offender subject to lifetime registration pursuant to section 290 may reside while on parole. For purposes of retroactivity analysis, the pivotal ‘last act or event’ (Grant, supra, 20 Cal.4th at p. 157) that must occur before the mandatory residency restrictions come into play is the registered sex offender’s securing of a residence upon his release from custody on parole.” (Maj. opn., ante, at p. 1274.)
[1290]A plain language reading of the statute does not support the majority opinion’s result. The statute says simply: “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(b).) It does not refer to parole at all, much less bear the weight of interpretation that the majority opinion would give it — e.g., “any convicted sex offender already subject to the lifetime registration requirement who is released from custody on parole, whether it be after serving of a term in custody for an initial sex offense conviction, a new sex offense conviction, or a new nonsex offense conviction, becomes subject to the new mandatory residency restrictions for the duration of his parole term.” (Maj. opn., ante, at p. 1272.)
Indeed, as the majority opinion acknowledges, it is not entirely clear to whom section 3003.5(b) applies — all registered sex offenders or only those released on parole. (See maj. opn., ante, at p. 1271 & fn. 5.) Enforcement of the residency restriction against parolees is not mandated by the plain language of the statute; it was an administrative decision by the California Department of Corrections and Rehabilitation (CDCR) reached eight months after Proposition 83 was enacted. (See CDCR, Policy No. 07-36: Implementation of Prop. 83, aka Jessica’s Law (Aug. 17, 2007); Cal. Code Regs., tit. 15, § 2616, subd. (a)(15).) Therefore, nothing in the plain language of the statute supports the majority opinion’s assertion that section 3003.5(b) was intended to apply prospectively to parolees upon their release from custody on parole.2
Moreover, the majority opinion’s characterization of what constitutes the pivotal date for purposes of retroactivity analysis in this case is simply wrong. These petitioners did not become subject to the residency restriction when they were released from custody on parole for nonsexual offenses; they were subject to the residency restriction by virtue of their status as registered sex offenders and they acquired that status upon their convictions for their sex offenses. (See People v. McClellan (1993) 6 Cal.4th 367, 380 [24 Cal.Rptr.2d 739, 862 P.2d 739] [“the sex offender registration requirement. . . [1291]is ... a statutorily mandated element of punishment for the underlying offense”]; Barrows v. Municipal Court (1970) 1 Cal.Sd 821, 825 [83 Cal.Rptr. 819, 464 P.2d 483] [§ 290 “applies automatically when a person is convicted of one of the enumerated offenses” (italics added)].) Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirement is imposed upon conviction of the registrable offense as are all ancillary restrictions that flow from that requirement including the residency restriction. Therefore, for purposes of the retroactivity analysis here, the pivotal date is the date of conviction for the registrable offense.
None of the three authorities upon which the majority opinion so heavily relies — People v. Grant, supra, 20 Cal.4th 150, Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, and People v. Mills (1992) 6 Cal.App.4th 1278 [8 Cal.Rptr.2d 310] — compels a different result because each one is distinguishable.
Grant is factually distinguishable because it involved the violation of a statute — continuous sexual abuse (§ 288.5, subd. (a)) — in which some events occurred before the statute’s effective date, but others clearly occurred afterwards. (People v. Grant, supra, 20 Cal.4th at p. 153.) Additionally, the jury was instructed that it could convict the defendant of the offense only if it found “that one of the required minimum of three acts of molestation occurred after section 288.5’s effective date. In other words, defendant could be convicted only if the course of conduct constituting the offense of continuous sexual abuse was completed after the new law became effective. Because the last act necessary to trigger application of section 288.5 was an act of molestation that defendant committed after section 288.5’s effective date, defendant’s conviction was not a retroactive application of section 288.5 and therefore not a violation of the statutory prohibition against retroactive application of the Penal Code.” (Grant, supra, 20 Cal.4th at pp. 157-158, first italics added.) In this case, the conduct which is the basis for application of section 3003.5(b) did not straddle the effective date of Proposition 83. That conduct which led to petitioners’ convictions and triggered the registration requirement occurred long before passage of Proposition 83.
Bourquez is also inapposite. As the Court of Appeal observed, pending proceedings to extend commitment under the SVPA focus on current dangerousness and, therefore, the change in law that extended commitment indefinitely did not attach new legal consequences to past conduct. (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1289.) In contrast, the residency restriction relates back to the original convictions for which the petitioners in this case were required to register as sex offenders — therefore, retroactive [1292]application of section 3003.5(b) does “change[] the legal consequences of past conduct by imposing new or different liabilities” (Tapia v. Superior Court, supra, 53 Cal.3d at p. 291) than existed at the time of the convictions.
In Mills, the defendant suffered a 1981 felony conviction for being in possession of marijuana for sale. In 1990, he was arrested and charged with being a felon in possession of a firearm — a shotgun. At the time of his 1981 felony conviction, however, the weapons statute proscribed possession of concealed weapons only. It was not until 1989 that the statute was amended to prohibit possession of any firearm, effective in 1990. (People v. Mills, supra, 6 Cal.App.4th at p. 1282.) The defendant argued that charging him under the amended version of the weapons statute violated the proscription against ex post facto laws because “the 1990 change in the law increases the punishment for his 1981 conviction, and is therefore a prohibited ex post facto law.” (Id., at p. 1283.)
The Court of Appeal rejected the argument: “Here defendant was convicted of conduct, his possession of a shotgun, occurring after the effective date of the statute. His conduct was a violation of the new statute, rather than an increase of punishment for the earlier offense of possessing marijuana for sale. Although the statute only applied to him because of his status as a person convicted of a felony, and the felony conviction occurred before the statute became effective, the fact of his prior conviction only places him into a status which makes the new law applicable to him. The legal consequences of his past conduct were not changed — only a new law was applied to his future conduct.” (People v. Mills, supra, 6 Cal.App.4th at p. 1286, fn. omitted.) In reaching this conclusion, the court drew an analogy to habitual offender statutes, noting that “courts have generally held that a statute which increases the punishment of prior offenders is not an ex post facto law if it is applied to events occurring after its effective date.” (Ibid.)
Analytically, Mills is distinguishable from the case before us. Crucial to the court’s analysis in Mills was the violation by the defendant of a penal statute that was unrelated to the underlying conduct which had led to his earlier conviction for drug possession. In other words, the defendant was initially convicted of, and punished for, possession of a drug for sale. His later conviction was not related to his possession of marijuana but to his possession of a firearm — two entirely separate events. It is true that his earlier conviction gave rise to his felon status which then became an element of the second offense, but he was not being punished for his felon status alone — it was punishment for his status plus conduct that was entirely unrelated to his earlier drug possession. The court’s reliance on habitual offender statutes reinforces this point. While conviction for prior felonies may make an offender eligible for enhanced punishment if he commits a new crime, the [1293]conduct for which the defendant was punished in the earlier conviction is not the basis for the enhanced punishment for the subsequent conviction.
In this case, however, the residency restriction applies to petitioners for no other reason than their status as registered sex offenders, which was triggered by the conduct that led to their convictions of the qualifying sex offenses. The residency restriction has no other object than to increase the legal disabilities imposed upon registered sex offenders because of their earlier conduct. This is made abundantly clear by Proposition 83’s statement of purpose: “California must also take additional steps to monitor sex offenders, to protect the public from them, and to provide adequate penalties for and safeguards against sex offenders, particularly those who prey on children.” (Prop. 83, § 2, subd. (h), italics added.) The intent of Proposition 83 was to impose further restrictions on registered sex offenders based on the conduct that had led to their qualifying convictions. Thus, the analogy to Mills fails.
Stripped of its analytical garb, the majority opinion’s analysis is transparently bare. The majority cannot find either in the plain language of section 3003.5(b) or in the ballot pamphlet an explicit statement or a clear and unavoidable implication that the residency restriction was intended to be applied retroactively to individuals like petitioners whose qualifying offenses for registration purposes occurred long before Proposition 83 was enacted. Instead, the majority dismisses the issue by clinging to the fiction that release upon parole is the pivotal date for retroactivity analysis and, therefore, application to these petitioners is prospective.
Ironically, this is the same implausible argument that we unanimously repudiated in Strauss v. Horton, supra, 46 Cal.4th 364. In Strauss, the interveners argued that Proposition 8 — banning same-sex marriages in California — applied to such marriages performed before enactment of the initiative, during the period when same-sex couples were allowed to marry by virtue of our decision in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384]. The argument advanced by the interveners was that, because Proposition 8 banned same-sex marriages after its enactment “the measure is not being applied retroactively but rather prospectively, even if the marriages that are now (or in the future would be) denied recognition were performed prior to the adoption of Proposition 8.” (Strauss, supra, 46 Cal.4th at p. 471.) We easily saw through this argument: “Were Proposition 8 to be applied to invalidate or to deny recognition to marriages performed prior to November 5, 2008, rendering such marriages ineffective in the future, such action would take away or impair vested rights acquired under the prior state of the law and would constitute a retroactive application of the measure.” (Id. at p. 472.)
[1294]In this case, retroactive application of Proposition 83 would clearly “ ‘ “attach!] a new disability, in respect to transactions or considerations already past” ’ ” (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 839; see Strauss v. Horton, supra, 46 Cal.4th at pp. 471-472), thus rendering it retroactive here as application of Proposition 8 would have done in Strauss. The majority opinion thereby gives effect to an intent that was nowhere expressed in the initiative or the ballot pamphlet even if, in the process, our carefully developed retroactivity jurisprudence is eviscerated. I cannot join in this plain and unjustified rejection of long-standing retroactivity principles.
II.
Given the majority’s conclusion on the retroactivity issue, this case will need to be remanded for further proceedings. As the majority states, the trial courts on remand must determine the relevant facts necessary to decide petitioners’ as-applied challenges, which “would include, but are not necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residence and its proximity to the nearest ‘public or private school, or park where children regularly gather’ (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in each particular jurisdiction; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those respective jurisdictions.” (Maj. opn., ante, at pp. 1283-1284.)
Also to be considered on remand is the extent to which even moderate safety restrictions may infringe on the constitutional right to intrastate travel. “The right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) This right has been elaborated in the context of child custody disputes where, it has been said, the right to intrastate travel also embraces “the concomitant right not to travel.” (In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 480 [9 Cal.Rptr.2d 182].) “Courts cannot order individuals to move to and live in a community not of their choosing.” (In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581 [271 Cal.Rptr. 389].)
The Courts of Appeal have struck down various probation conditions because they violated the constitutional right to intrastate travel. In In re White (1979) 97 Cal.App.3d 141 [158 Cal.Rptr. 562] the defendant was convicted of prostitution. The trial court imposed a condition of probation that barred [1295]her from entering areas of the city (Fresno) where there was prostitution activity. The reviewing court struck the condition. The court noted, with respect to the constitutional issues raised by the defendant that “[w]hile White’s reasonable expectations regarding association and travel have necessarily been reduced, the restriction should be regarded with skepticism. If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used.” (Id. at p. 150; see also People v. Beach (1983) 147 Cal.App.3d 612, 622-623 [195 Cal.Rptr. 381]; People v. Bauer (1989) 211 Cal.App.3d 937, 944-945 [260 Cal.Rptr. 62].)
Most recently, in People v. Smith (2007) 152 Cal.App.4th 1245 [62 Cal.Rptr.3d 316] (Smith), the Court of Appeal struck down a blanket probation condition imposed on all registered sex offenders by the Los Angeles probation department that forbade them from leaving the county for any reason. As the court observed: “Smith has a constitutional right to intrastate travel [citations] which, although not absolute, may be restricted only as reasonably necessary to further a legitimate governmental interest.” (Id. at p. 1250.) The court found no such reasonable necessity in that case, concluding, inter alia, that “the prohibition bears no reasonable relation to the crime.” (Id. at p. 1252.)
We do not consider a probation condition in the present case. But whether section 3003.5(b) is viewed as a parole condition or a condition imposed by statute that extends beyond parole, the analysis is the same: a restriction on where an ex-offender may live infringes upon that person’s right to intrastate travel, which includes as one component the right to choose where to live and not to live. That right is not absolute, but the infringement may be imposed “only as reasonably necessary to further a legitimate governmental interest.” (Smith, supra, 152 Cal.App.4th at p. 1250.)
It is of course true, as the majority points out, that “ ‘[although a parolee is no longer confined in prison[,] his custody status is one which requires and permits supervision and surveillance under restrictions which may not be imposed on members of the public generally.’ ” (Maj. opn., ante, at pp. 1282-1283, fn. 10, quoting People v. Burgener (1986) 41 Cal.3d 505, 531 [224 Cal.Rptr. 112, 714 P.2d 1251].) As the majority recognizes, however, even if the statute is interpreted to impose no more than parole conditions, such conditions “ ‘must be reasonable, since parolees retain constitutional protection against arbitrary and oppressive official action.’ ” (Maj. opn., ante, at p. 1282, fn. 10, quoting Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 874 [76 Cal.Rptr.2d 841].) The reasonableness of parole conditions is gauged by the same standard developed in the context of probation conditions [1296]in People v. Dominguez (1967) 256 Cal.App.2d 623 [64 Cal.Rptr. 290], and adopted by this court in People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545] (Dominguez/Lent). As explained in Dominguez'. “A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.” (Dominguez, supra, 256 Cal.App.2d at p. 627; see Lent, supra, 15 Cal.3d at p. 486.) The Dominguez/Lent criteria applies to evaluating the reasonableness of parole conditions. (People v. Burgener, supra, 41 Cal.3d at p. 532; In re Stevens (2004) 119 Cal.App.4th 1228, 1233 [15 Cal.Rptr.3d 168]; In re Naito (1986) 186 Cal.App.3d 1656, 1661 [231 Cal.Rptr. 506].)
Section 3003.5(b)’s residency restrictions apply without exception to those who have committed certain enumerated sex offenses and are required to register as a sex offender. However, in the case of petitioners K.T. and E.J., there is no indication from the record that their sexual offenses involved children, and it is unclear why they should be subject to the statute’s residency restrictions, which, as the majority explains, exist for the purpose of protecting children by “creating ‘predator free zones around schools and parks to prevent sex offenders from living near where our children learn and play’ . . . .” (Maj. opn., ante, at p. 1266, quoting Voter Information Guide, supra, argument in favor of Prop. 83, p. 46.) The application of the statute to these two petitioners would appear not merely to be not in furtherance of the statute’s goal, but actually to be contrary to that goal, since it would divert scarce law enforcement resources toward enforcing a restriction that has no demonstrable effect on increasing child safety. Nor, if viewed strictly as a parole condition, would the statutory restriction appear to bear any relationship to the crimes of which these petitioners were convicted. (See In re Stevens, supra, 119 Cal.App.4th at p. 1233.)
On the other hand, petitioner S.P. was convicted of raping a 15-year-old girl when he was 16. Also, it is unclear whether the Texas sex offense of which petitioner J.S. was convicted, which has as an element the “ ‘intent to arouse or gratify the sexual desire of any person’ ” involved a minor as an actual or intended or potential victim. (Maj. opn., ante, at p. 1269.) As to S.P. and possibly as to J.S., in order to determine whether the right to intrastate travel is violated, the severity of the restriction must be determined as well as whether such severity is justified in furtherance of the statutory goal.
[1297]It is not the function of courts to judge the wisdom of a statute, but it is their function to determine its constitutionality. When a statutory restriction substantially impinges on a person’s constitutional right to intrastate travel and does not further the statute’s objective, it must be struck down as to that person.3 Whether such an outcome is appropriate for the as-applied challenges in the present case is a matter to be determined on remand.
Kennard, J., concurred.
All further statutory references are to the Penal Code.
The fact that it took eight months for someone to decide how and against whom section 3003.5(b) was to be enforced also undermines the repeated assertions by the majority opinion that these petitioners were on notice that the restriction applied to them as soon as they were released on parole and, even less accurately, the implication that, armed with this knowledge, they intentionally moved into noncompliant housing. (Maj. opn., ante, at pp. 1272, 1275-1278.) If those charged with enforcing the residency restriction did not understand its scope or application until months after it was enacted, how can these petitioners be charged with notice, actual or constructive, that it applied to them at any point before they were served with the 45-day compliance letter? They cannot. How can they have flouted a condition of parole which had not yet been applied to them when they moved into residences later determined to be noncompliant? They did not — they were just going home.
The restrictions imposed by section 3003.5(b) may also violate the right to privacy found in article I, section 1 of the California Constitution. (See Robbins v. Superior Court (1985) 38 Cal.3d 199, 213-215 [211 Cal.Rptr. 398, 695 P.2d 695] [the privacy clause’s protection of individual autonomy forbids government from requiring individuals receiving public assistance benefits to give up their homes and live in county facilities].)