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

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.

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.
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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.”

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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UPDATE NO. 2, NOV. 30, 2:57 P.M.: In pointing out my errors in a post about a sex-offender case in Irvine (see “Perv-in-Park Case Dismissed Against Jean Pierre Nguyen”), Public Defender Frank Ospino maintained court rulings have rendered Child Safety Zones enacted by Irvine, Tustin and the County of Orange unconstitutional and void.

In his own statement today, District Attorney Tony Rackauckas says a three-judge panel's ruling against the ordinance applies only to the Godinez case and not “other pending or future prosecutions of the County sex offender ordinance.” His office's full statement follows:

November 30, 2012

STATEMENT BY DISTRICT ATTORNEY TONY RACKAUCKAS REGARDING REVERSAL OF HUGO GODINEZ CONVICTION

“On Nov. 15, 2012, the Appellate Division of the Superior Court of Orange County reversed defendant Hugo Godinez's conviction for violating Orange County Ordinance 3-18-3. The ordinance prohibits registered sex offenders from entering County parks where children regularly gather. The appellate division opined that the County ordinance was preempted by state law. The appellate division's decision applies in the Godinez case but does not apply to other pending or future prosecutions of the County sex offender ordinance.

“Recognizing that this case presents an important question of law, the appellate division certified the case for transfer to the Court of Appeal to settle whether local jurisdictions are preempted by state law from passing laws prohibiting registered sex offenders from entering parks where children regularly gather. The Court of Appeal has discretion to accept or deny the transfer.

“I believe that protecting children from sex offenders is one of the highest priorities in law enforcement. We will continue to review cases involving sex offenders in parks as they are presented on a case-by-case basis. We also hope to present our position concerning preemption to the Court of Appeal and receive its decision on this important issue.”

Background on the Godinez criminal case
Godinez is a registered sex offender who signed two Department of Justice forms acknowledging he understood the terms and conditions of his registration and met with a deputy probation officer to discuss and sign a copy of the County ordinance restricting registered sex offenders' access to locations where children regularly gather.

On May 5, 2011, Godinez entered and spent several hours in Mile Square Regional Park in Fountain Valley. This park is known to be a gathering place for families, especially on holidays. There were many people in the park, including children, celebrating Cinco de Mayo. VeriTracks Global Positioning Satellite System print-outs showed the defendant's movements. He later admitted to an Orange County Sheriff's Department deputy that he went to the park for several hours knowing he was not supposed to be there and that it was a violation of the ordinance.

Godinez was found guilty in a court trial Nov. 14, 2011, of one misdemeanor count of prohibited sex offender entering a County park and one misdemeanor count of failing to register and show proof of residency upon release from incarceration. He was sentenced Nov. 17, 2011, to 100 days in jail and five years of formal probation.

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