[UPDATED with DA, Public Defender Interpretations:] Orange County Pervs-in-Parks Ban Violates State Constitution: Judicial Panel

Categories: Court, Crime-iny
See Update No. 2 on page 2, where DA Tony Rackauckas maintains the three-judge panel ruling pertains to the Godinez case and not pending or future cases involving the county sex offender ordinance. Public Defender Frank Ospino argues that law is now void.

See Update No. 1 with the district attorney's reaction to the judicial panel's decision and vow to continue fighting for the ordinance.


Thumbnail image for Shawn-Nelson1.jpg
Shawn Nelson
ORIGINAL POST, NOV. 28, 1:30 P.M.: The County of Orange ordinance that bars registered sex offenders from entering county parks and recreational areas has been ruled unlawful, according to a decision issued Nov. 15 by a panel of three Superior Court judges. The unanimous ruling does not apply to the ordinances several Orange County cities adopted at the urging of county Supervisor Shawn Nelson and District Attorney Tony Rackauckas, who authored the original county version the Board of Supervisors approved in April 2011.

See also:
Hugo Godinez, Sex Offender Busted in County Park, is Ammo for Two More Cities Considering Bans
Federal Lawsuit Challenges Sex Offender Bans in Parks of Four Orange County Cities
Registered Sex Offenders Unite: Group Seeking Legislative Reform to Meet at Buena Park Church


Nor does the judges' decision have anything to do with a separate complaint filed in federal court against four Orange County cities that passed ordinances mirroring the county's.

Judges Craig L. Griffin, Clay M. Smith and Charles Margines of the Appellate Division of the Superior Court in Santa Ana found Orange County's ordinance violates the California Constitution because it preempts state law that prohibits some, but not all, sex offender registrants from entering public parks.

The decision will now be forwarded to the California Court of Appeals, which can review it, let it stand or send it back down for revisions. A decision on how that court will proceed is expected by December.

Janice Bellucci, a Reform Sex Offender Laws (RSOL) California organizer, is already calling the lower court ruling, "a major victory for registrants, not only in Orange County, but throughout the state of California."

In an RSOL statement, Bellucci continues, "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined."

Hugo-Godinez_ocda.jpg
Courtesy of OCDA
Hugo Godinez at his booking last year.
The case before the judges centered on Hugo Godinez, a lifetime sex offender registrant who was arrested May 5, 2011, at Mile Square Park in Fountain Valley. According to Godinez's Orange County Public Defender's Office attorneys, he was attending a "mandatory" company party celebrating Cinco de Mayo. Nevertheless, the Santa Ana resident was convicted in November on one misdemeanor count of failing to register and show proof of residency upon release from incarceration. He received a sentence of 100 days in jail and five years probation.

Godinez has been forced to register as a sex offender with the Costa Mesa Police Department since his sentencing for a 2010 misdemeanor sexual battery conviction.

The Orange County District Attorney's office (OCDA) said at the time of Godinez's Fountain Valley arrest that he had signed paperwork indicating he knew he had to re-register in other jurisdictions if he changed his address, and three days before his arrest at the regional park he'd talked with his probation officer about the county ban on registered sex offenders in recreational areas where children gather. The crux of Public Defender Scott M. Van Camp's argument before the judicial panel was different residency requirements in different cities are unfair and trumped by state law anyway.

Under the so-called Child Safety Zone Ordinance, registered sex offenders cannot enter parks unless they first get the permission from the Orange County Sheriff's Department, if it is a regional facility, or the local police department, if it is in a city that has passed a similar ban.

A previous records check indicated the sheriff's department has been stingy in granting such requests. Sheriff Sandra Hutchens has joined Nelson and Rackauckas on the circuit of Orange County city councils, urging the adoption of so-called Child Safety Zones like the county has.

The OCDA says it will have a statement about the judges' ruling later this afternoon.

UPDATE NO. 1, NOV. 28, 3:54 P.M.: According to the OCDA, the decision by the Appellate Division of the Superior Court regarding the County of Orange's Child Safety Zones ordinance is part of the normal process of shaping laws in California.

District Attorney Tony Rackauckas "always viewed this as a long-term battle to protect children from sex offenders, which is part of our duties," explained his chief of staff, Susan Kang Schroeder.

At issue is whether state law preempts the Orange County ordinance. The OCDA's view is it does not, arguing that the state constitution allows local jurisdictions to enact policing (and other) ordinances so long as they do not conflict with general law or delve into areas fully covered by the state Legislature. Hugo Godinez's attorney Scott M. Van Camp and his Public Defender's office colleagues counter the Legislature indicates an intent to occupy the field of sex offender registration under the state Penal Code.

The main Penal Code section cited by Godinez's attorneys prevents sex offenders who are on parole from entering any park without first getting permission from his or her parole officer, something that came out of Chelsea's Law of 2010. There are other state prohibitions that apply to those who have preyed on children ages 14 and under. Because the Legislature limited its scope to parolees, the OCDA argues, it is not fully occupying the field when it comes to where sex offenders congregate.

As the case progresses, the county will argue it lawfully expanded such prohibitions to sex offenders, and that this does not fly in the face of existing state laws. The Godinez team also argues that the Jessica's Law voter initiative and other laws passed by the Legislature show the state is fully invested in where sex offenders are allowed to go. The OCDA brief tries to shoot down that legal argument, noting one Penal Code section cited by Godinez's attorneys states it specifically does not supersede other laws, which would include those adopted locally.

An OCDA brief filed for the judicial panel cited other local ordinances that expanded on, but did not preempt, state law, as well as local laws dictating where criminals may go that have withstood legal challenges, if they have been challenged at all.

When it comes to Godinez's specific circumstances, the brief notes that while his original offense in Costa Mesa concerned a woman he battered, he had expressed to his probation officer about fantasizing about a 12-year-old niece he had hugged and whose buttocks he grabbed and that his boss' 6-year-old niece was flirting with him. This prompted his probation officer to put a GPS tracker anklet on Godinez and explain how he could not enter Child Safety Zones enacted by the county and local cities, the OCDA brief states.

The brief goes on to deny Godinez's challenges that the county ordinance is unconstitutional, vague or over broad when applied generally or to this specific sex offender.

As things now stand, the OCDA believes the Appellate Division of the Superior Court decision applies only to the Godinez case, and not all the county ordinance as a whole, despite the Reform Sex Offender Laws representative's statement in my original post that, "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined." (The OCDA chose not to react directly to the RSOL statement, pointing instead to its appellate court brief.)

The OCDA also pointed out that the three-judge panel, in its decision, references the Godinez and other cases regarding sex offender ordinances winding through the court system, urging a higher appeals panel to take up the central question of whether local jurisdictions can ban registered sex offenders from parks where children gather.
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7 comments
fixithair
fixithair

It is to protection the children, but who's child are we talking about?  I saved my son's life twice once from drowning and once from choking, but my child isn't good enough for me to be there for the third time because he's my child (I'm a registrant). 

I'm an outcast, a poriah and a registered sex offender, but I'm also a father, a brother and a son.  I last year received a US Congressional award for community service for helping cancer patients and the homeless.  I'm an old soldier If i'm to carry the burden that comes with being a registrant fine, but to disallow a parent (any parent) from being with their child breaks more than constitutional law.  That breaks natural and spiritual law!  

The DA didn't make me a parent, God did.  Tony is not God!  It is a parent's RIGHT not given by man to be with their child.  Who do these city councils think they are to violate that?  I applaud these three courageous judges for doing the right thing.  Not the popular thing but the right thing.  I wish our leaders would show such courage and repeal all such ordinances.  

The Constitution was designed to protect the rights of the few from the actions of the many.  Well, that's how this old soldier sees it.  For those three courageous judges may the Lord's face shine upon you and keep you.  

On May 8th via the OC Supervisor's website you can view my presentation.  Scroll down to public comments I'm the first presenter.

http://ocgov.granicus.com/ViewPublisher.php?view_id=4

 Oh, my conviction was a misdemeanor not involving a child over 12 years ago.  Mr. Nelson was give someone else's file so though his comments were harsh and untrue it wasn't his fault. 

y2kvi
y2kvi

Build them a PERV-on-a-leash Park, similar to a Bark Park.  Let the DAs clean up the former at the end of each day.

OCGuy
OCGuy

That decision is from almost 2 weeks ago. What prompted the statement by the OCDA today? Does the OCDA not have a PR department? Are we only being told events that go in their favor? Do they not have an obligation to keep Orange County residents in the loop? It would appear that now OC Parks and Beaches will be, once again, overrun by - how do you call them - pervs? Changing the offense level by these people in these locations from what - zero to zero?

Questions, questions.... this statement here raises another one: "District Attorney Tony Rackauckas "always viewed this as a long-term battle to protect children from sex offenders, which is part of our duties," explained his chief of staff, Susan Kang Schroeder." That certainly is NOT how this ordinance was presented to the County of and Cities in OC subsequently. I would have to go back to re-watch hours of video but this ordinance was presented as constitutionally iron-clad and pretty much a slam dunk as the best attorneys in the DA's office gave it their thumbs up. Well, now it looks like their thumbs were up something, alright.

Then this "The main Penal Code section cited by Godinez's attorneys prevents sex offenders who are on parole from entering any park without first getting permission from his or her parole officer, something that came out of Chelsea's Law of 2010. There are other state prohibitions that apply to those who have preyed on children ages 14 and under." No, that section in the Penal Code is one and the same. It is PC 3053.8. Google is your friend. But who am I to point this out.... 

And, pray tell, what does whatever the appellant told his Probation Officer have to do with a case that centers on violating the State Constitution? There is no question that the appellant was present in the area. Never was. Not surprisingly the OCDA is introducing lurid personal details, resorting to personal smear attacks when they run out of legal / constitutional arguments. They have been doing it for over a year and a half now, grossing out City Council after City Council with anecdotes and personal attacks. That tactic is called 'deflection' - it was not cool when my little sister used to employ it to me in trouble, and certainly is not now, by the main Law Enforcement Agency in one of the largest counties in the largest state in this country.

I am a big boy and realize that it is not over until the Fat Lady sings, but lets face it - Round Two to the 'pervs'. Or the Constitution, however you care to look at it. Is the Fat Lady warming up?

I just think that I - and the people of Orange County - deserve better than the current crew in the DA's office.

OCGuy
OCGuy

@y2kvi - right on! There used to be places like this... they even had snappy names like Auschwitz or Dachau.

MatthewTCoker
MatthewTCoker topcommenter

@OCGuy Just so you know the chain of events on my end: I learned of the decision when I received a copy of the statement from the reform sex offender laws people. I posted based on that and asked the DA's office for a comment, which was the basis for the update.

OCGuy
OCGuy

@MatthewTCoker - Thank you for the clarification... but that raises only new questions. Plus the others not answered by you.

Were they ever going to announce this decision and their plan to pursue this until you made them aware of your article? The response was posted within a few hours of your piece. Were they ever going to tell the public that the ordinance has been found unconstitutional? I am no lawyer, so what is it now - are 290s allowed in County Parks or not? An 'unlawful' decision on constitutional grounds would make me think yes across the board, and if the OCDA believe that not, why not?

The OCDA found the time to announce that they were going to argue the case last month (not that well, apparently) - but then? %s

"As things now stand, the OCDA believes the Appellate Division of the Superior Court decision applies only to the Godinez case, and not all the county ordinance as a whole, despite the Reform Sex Offender Laws representative's statement in my original post that, "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined." (The OCDA chose not to react directly to the RSOL statement, pointing instead to its appellate court brief.)" - If they chose not to react to the statement directly, might they kindly point me to the referenced appellate court brief (the one that was shot down - and has that ship not sailed), so I may review it?

Given the City Council presentations by the OCDA over the past year and a half, I would have to come to the conclusion that my, and my child's well-being, and even life, is in grave danger from marauding bands of sex offenders in my neighborhood park. Who knows what chaos might ensue? After all, there were no incidents of crime by 290s in parks before this ordinance and none since. Am I not entitled to know?

Is it possible that the 'danger' was never there in the first place and the whole thing is just a politically motivated PR exercise?

Questions, questions.... looking forward to some answers.

fixithair
fixithair

@OCGuy You are right by your Assertions.  As soon as I heard the parks ban was lifted I called the OC sheriff's department to confirm that I can now go to the parks and beaches with my child.  The Sheriff's Department confirmed that I may now go to the parks with my son.  

It is disturbing that I as a father was ever disallowed such a right.  As a 16 year Army veteran and US Congressional award recipient for helping cancer patients and the homeless I find such violations of freedom a disgrace.

This violate not only Constitutional law but natural and spiritual law.  The DA didn't make me a parent, God did.

Rarely are children in harms way but most of the time it's because they are left unattended to.  These ordinances MANDATE me not to be there to attend to my child.

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