People v. Nguyen (222 Cal. App. 4th 1168, 2014)

Opinion

ARONSON, Acting P. J.

The district attorney appeals from a judgment sustaining defendant JeanPierre Cuong Nguyen’s demurrer to a misdemeanor complaint that charged him with violating a local ordinance that prohibits registered sex offenders from entering city parks and recreational facilities without written permission from the city’s police chief. The trial court concluded state law preempted prosecution under the local ordinance because the Legislature has enacted a comprehensive statutory scheme regulating the daily life of sex offenders to reduce the risk of an offender committing a new offense. We agree. As explained below, we conclude the state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting city parks and recreational facilities.

We also conclude state law preempts the ordinance’s requirement that sex offenders obtain written permission from the city’s police chief before entering a city park and recreational facility. This regulation is simply a de facto registration requirement. But state law has long occupied the area of sex offender registration to the exclusion of local regulation and the city ordinance’s written permission requirement amounts to an additional registration requirement imposed on sex offenders who wish to enter city parks. We decline to sever the written permission requirement from the city ordinance. To do so would result in an outright ban on sex offenders entering city parks and recreational facilities. But taking this step would substantially alter the meaning of the city ordinance as originally enacted because nothing in the language of the ordinance or its history suggests the city intended to bar sex offenders under all circumstances from city parks and recreational facilities.

I

Facts and Procedural History

Nguyen is a sex offender required to register with local law enforcement under Penal Code section 290. In September 2012, he entered a public park in the City of Irvine without first obtaining written permission from the Irvine Police Chief. After learning of Nguyen’s park visit, the district attorney filed a misdemeanor complaint charging him with violating section 4-14-803 of the City of Irvine Municipal Code (Irvine section 4-14-803). That section states, “Any person who is required to register pursuant to California Penal Code section 290 et seq., where such registration is required by reason of an offense for which the person was convicted and in which a minor was the victim, and who enters upon or into any City park and recreational facility where children regularly gather without written permission from the Director of Public Safety/Chief of Police or his designee is guilty of a misdemeanor.” (§ 4-14-803.) The ordinance broadly defines “City park and recreational facility” as “community parks, neighborhood parks, the Orange County Great Park, open space preserves, trails, including structures thereon, and all other lands and facilities under the ownership, operation or maintenance of the City that are utilized for public park or recreational purposes, whether passive or active.” (Irvine Mun. Code, § 4-14-802.)

Nguyen demurred to the complaint, arguing Irvine section 4-14-803 was invalid because (1) California’s comprehensive statutory scheme governing the registration and regulation of sex offenders occupied the field and therefore preempted local ordinances imposing similar requirements; (2) the ordinance was unconstitutionally vague; and (3) the ordinance infringed on Nguyen’s fundamental constitutional rights to intrastate travel, free speech, and freedom of association and assembly. The trial court sustained Nguyen’s demurrer, finding state law preempted section 4-14-803 and the ordinance was unconstitutionally vague and overbroad.

The district attorney appealed to the superior court appellate division and requested it certify the appeal for immediate transfer to this court under California Rules of Court, rule 8.1005. The appellate division granted the request, explaining it “has determined that transfer is necessary to secure uniformity of decision, in that another case pertaining to the same or a closely related issue, People v. Godinez, 30-2011-530069, G47657, is currently pending before Division Three of the Fourth District Court of Appeal. Like Godinez, this matter presents the issue of whether local ordinances restricting the movements of registered sex offenders are void on grounds of State preemption.” Upon receiving the appellate division’s certification order, we ordered the appeal transferred to this court.

II

Discussion

A. Governing Preemption Principles

“ ‘Under article XI, section 7 of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws.” [][] “If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.” [Citations.] [][] “A conflict exists if the local legislation ‘ “duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” ’ ” [Citations.]’ [Citations.]” (O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067 [63 Cal.Rptr.3d 67, 162 P.3d 583] (O’Connell).)

Nguyen does not argue Irvine section 4-14-803 either duplicates or contradicts state law nor does he argue state law expressly preempts section 4-14-803. Instead, Nguyen’s primary challenge is that state law impliedly preempts section 4-14-803 by fully occupying the field it regulates. The state impliedly preempts a field when “ ‘ “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the” locality [citations].’ [Citation.]” (American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252 [23 Cal.Rptr.3d 453, 104 P.3d 813] (American Financial).)

“If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘municipal affair.’ [Citations.]” (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 808 [100 Cal.Rptr. 609,494 P.2d 681]; see American Financial, supra, 34 Cal.4th at p. 1253 [“ ‘Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.’ ”].) The Legislature’s “ ‘intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.’ [Citations.]” (American Financial, at p. 1252.) The test for field preemption or occupation does not focus on the number of statutes involved, but on “whether the nature and extent of the coverage of a field is such that it could be said to display a patterned approach to the subject.” (Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 182 [36 Cal.Rptr.2d 886] (Baldwin); see Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708 [209 Cal.Rptr. 682, 693 P.2d 261] (Fisher).)

For example, in O’Connell, the Supreme Court considered whether state law impliedly preempted a local ordinance requiring an offender to forfeit any vehicle used “ ‘to acquire or attempt to acquire any controlled substance.’ ” (O’Connell, supra, 41 Cal.4th at p. 1066, italics omitted.) To answer the question, the O’Connell court analyzed the California Uniform Controlled Substances Act (Health & Saf. Code, § 11000 et seq.; UCSA) as a whole, including its detailed provisions regulating the lawful use and distribution of controlled substances, defining criminal offenses involving the unlawful possession, distribution, and sale of controlled substances, and the penalties for those offenses. The UCSA imposed the penalty of vehicle forfeiture for the sale and distribution of large quantities of controlled substances, but unlike the local ordinance it did not impose vehicle forfeiture as a penalty for purchasing or attempting to purchase small quantities of a controlled substance. (O’Connell, at pp. 1069-1071.)

Based on its review of the entire UCSA, the O’Connell court concluded state law impliedly preempted the local ordinance because the UCSA fully occupied the field of penalizing crimes involving controlled substances: “The comprehensive nature of the UCSA in defining drug crimes and specifying penalties (including forfeiture) is so thorough and detailed as to manifest the Legislature’s intent to preclude local regulation.” (O’Connell, supra, 41 Cal.4th at p. 1071.) The Legislature’s decision to omit vehicle forfeiture as a penalty for possessing drugs below a specified amount prevented local authorities from imposing the omitted penalty on those same offenses because the Legislature’s comprehensive statutory scheme “manifested] a clear intent to reserve that severe penalty for very serious drug crimes involving the manufacture, sale, or possession for sale of specified amounts of certain controlled substances.” (Id. at p. 1072; see In re Lane (1962) 58 Cal.2d 99, 103-104 [22 Cal.Rptr. 857, 372 P.2d 897] (Lane) [extensive state statutory scheme regulating criminal aspects of sexual activity preempted local ordinance outlawing fornication and adultery even though the state statutes did not outlaw those specific acts; “[i]t is therefore clear that the Legislature has determined by implication that such conduct shall not be criminal in this. state”].)

In finding the ordinance preempted, the O’Connell court criticized an earlier appellate decision that found the UCSA did not preempt a similar ordinance requiring vehicle forfeiture. That earlier decision upheld the local ordinance because the UCSA was “ ‘silent with regard to vehicles used by drug buyers’ ” and therefore the “ordinance covered an area of law ‘untouched by statewide legislation ....’” (O’Connell, supra, 41 Cal.4th at p. 1072, italics omitted, quoting and disapproving Horton v. City of Oakland (2000) 82 Cal.App.4th 580, 586 [98 Cal.Rptr.2d 371].) The Supreme Court explained this earlier appellate decision erred by “focusing solely on the UCSA’s forfeiture provisions . . . [without] considering] the UCSA’s comprehensive scheme of drug crime penalties, which include forfeiture of various items of property, including vehicles, when used in specified serious drug offenses.” (O’Connell, at p. 1072.)

In American Financial, the Supreme Court likewise examined the state’s entire statutory scheme regarding predatory lending practices in the home mortgage industry to determine whether state law impliedly preempted a local ordinance that imposed higher standards and covered more mortgage loans than the state scheme. (American Financial, supra, 34 Cal.4th at pp. 1246-1251.) The American Financial court found the state statutes defining what mortgages were covered, what lending acts were prohibited, who could be held liable for statutory violations, the available enforcement mechanisms, and the defenses to any purported violations were “ ‘so extensive in their scope that they clearly show[ed] an intention by the Legislature to adopt a general scheme for the regulation of’ predatory lending tactics in home mortgages. [Citation.]” (Id. at pp. 1254-1255.) By purporting to augment the state statutes, the local ordinance “revisit[edj” an area fully occupied by state law and “undermine[d] the considered judgments and choices of the Legislature” in adopting the statutes. (Id. at p. 1257.) Accordingly, state law preempted the local ordinance, including mortgages the state’s statutory scheme did not cover. (Id. at p. 1258.)

In contrast, the Supreme Court’s recent decision in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 [156 Cal.Rptr.3d 409, 300 P.3d 494] (City of Riverside) concluded state law did not preempt a local land use ordinance banning medical marijuana dispensaries because state law did not establish a comprehensive scheme regulating medical marijuana. The state law on the subject merely “adopted limited exceptions to the sanctions of this state’s criminal and nuisance laws in cases where marijuana is possessed, cultivated, distributed, and transported for medical purposes.” (Id. at p. 739.) According to the Supreme Court, the state “statutory terms describe[d] no comprehensive scheme or system for authorizing, controlling, or regulating the processing and distribution of marijuana for medical purposes . . .” (id. at p. 755), but rather represented “careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations” (id. at p. 762).

The City of Riverside court emphasized land use regulation is an area over which local government traditionally has exercised control and therefore “ ‘. . . California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute.’ [Citations.]” (City of Riverside, supra, 56 Cal.4th at p. 743.) The Supreme Court concluded the narrow and limited nature of the state medical marijuana law did not provide a clear indication the Legislature intended to preempt local land use regulation affecting medical marijuana dispensaries. Nothing in the state law required local governments to accommodate medical marijuana.

As these cases demonstrate, the facts and circumstances of each case determine whether the Legislature established a comprehensive statutory scheme that impliedly preempts all local regulation on the subject. (In re Hubbard (1964) 62 Cal.2d 119, 128 [41 Cal.Rptr. 393, 396 P.2d 809], overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63 [81 Cal.Rptr. 465, 460 P.2d 137]; Gregory v. City of San Juan Capistrano (1983) 142 Cal.App.3d 72, 82 [191 Cal.Rptr. 47] (Gregory).) “The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149 [45 Cal.Rptr.3d 21, 136 P.3d 821] (Big Creek Lumber).) “ ‘Whether state law preempts a local ordinance is a question of law that is subject to de novo review.’ [Citation.]” (Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741, 752 [90 Cal.Rptr.3d 181].)

B. The Legislature’s Comprehensive and Standardized Scheme Regulating Sex Offenders Preempts Irvine’s Ordinance

Nguyen contends state law impliedly preempts Irvine section 4-14-803 because the ordinance regulates an area the state has fully occupied by enacting a comprehensive statutory scheme regulating sex offenders. To evaluate this challenge we must first identify the subject section 4-14-803 regulates and the specific field Nguyen claims is occupied by state law. (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 904 [16 Cal.Rptr.2d 215, 844 P.2d 534] (Sherwin-Williams); Gregory, supra, 142 Cal.App.3d at p. 84.) Next, we must examine the nature and scope of those state statutes to determine whether they are logically related and establish a “ ‘patterned approach’ ” to regulating an area that includes the subject matter covered by section 4-14-803. (Fisher, supra, 37 Cal.3d at p. 708; see Baldwin, supra, 31 Cal.App.4th at p. 182.) A preempted field “cannot properly consist of statutes unified by a single common noun,” but rather requires closely related statutes that regulate an area in a manner that reveals a legislative intent to occupy the field. (Galvan v. Superior Court (1969) 70 Cal.2d 851, 862 [76 Cal.Rptr. 642, 452 P.2d 930] (Galvan).)

1. The Relevant State Law Field Includes All Restrictions Imposed on a Sex Offender’s Daily Life

The parties agree Irvine section 4-14-803 regulates a sex offender’s ability to visit a particular type of public place by prohibiting the offender from entering a “City park and recreational facility where children regularly gather” without the police chief’s written permission. (§ 4-14-803.) The ordinance’s stated purpose is “to protect children from registered sex offenders by restricting sex offenders’ access to locations where children regularly gather. It is intended to reduce the risk of harm to children by impacting the ability of sex offenders who were convicted of offenses in which a minor was the victim to be in contact with children.” (Irvine Mun. Code, § 4-14-801.)

The district attorney contends we must define the relevant state law field based on Irvine section 4-14-803’s subject matter, which regulates “where sex offenders can go.” In contrast, Nguyen contends we must define the field based on the state laws regulating sex offenders because those are the provisions that have occupied the field and therefore preempt the local ordinance. We agree we must look to state law to define the relevant field when determining whether the Legislature has fully occupied the area by enacting a comprehensive statutory scheme. (Fisher, supra, 37 Cal.3d at p. 708; Galvan, supra, 70 Cal.2d at p. 862; Baldwin, supra, 31 Cal.App.4th at p. 182.)

The district attorney’s test for defining the state law field by looking to the local ordinance’s subject matter would turn the preemption analysis on its head and allow local government to define the scope of state law. The relevant preemption inquiry is whether state law has occupied the field to the exclusion of local regulation, and therefore we look to state law to define the field it purportedly occupies. (O’Connell, supra, 41 Cal.4th at p. 1072 [earlier decision erred in narrowly defining field based on subject of local ordinance without considering entire field regulated by the state’s comprehensive statutory scheme].) We look to the local ordinance’s subject matter to determine whether it falls within the state law field, not to define the field. (Fisher, supra, 37 Cal.3d at p. 708; Galvan, supra, 70 Cal.2d at p. 862.)

Defining the relevant state law field as the district attorney suggests—the regulation of where sex offenders can go—would require us to ignore other state laws designed to achieve the same purpose as Irvine section 4-14-803: protecting children from registered sex offenders by restricting access to locations where children regularly gather. (Irvine Mun. Code, § 4-14-801.) For example, limiting the relevant field to the geographical restriction of sex offenders would preclude us from considering state laws that restrict sex offenders from living near schools and parks. (§ 3003.5.) The district attorney’s analysis similarly would require a reviewing court to ignore state laws that allow law enforcement officials to monitor certain sex offenders with global positioning devices. (§§ 3000.07, 3004, subd. (b).) It also would eliminate from the analysis state laws that limit or in some cases prohibit registered sex offenders from accepting a job or volunteer position involving direct and unaccompanied contact with minor children. (§ 290.95.) “ ‘Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.’ [Citations.]” (,American Financial, supra, 34 Cal.4th at p. 1252; see Lane, supra, 58 Cal.2d at pp. 102-103.) Defining the field as the district attorney suggests would require us to ignore a significant portion of the purpose and scope of the state’s legislative scheme.

Accordingly, we define the relevant field as the restrictions imposed on a sex offender’s daily life to reduce the risk he or she will commit another similar offense. As explained below, the Legislature has not only adopted numerous statutes placing geographical restrictions on sex offenders, but also has adopted other regulations governing other aspects of an offender’s life to protect the public from future harm. We must consider all of those statutes together to determine whether they establish a “ ‘patterned approach’ ” to regulating a sex offender’s daily life and manifest a legislative intent to fully occupy the field to the exclusion of all local regulation. (Fisher, supra, 37 Cal.3d at p. 708; see Galvan, supra, 70 Cal.2d at p. 862; Baldwin, supra, 31 Cal.App.4th at p. 182.)

2. The Legislature Enacted a Comprehensive Statutory Scheme That Fully Occupies the Field

The restrictions the Penal Code imposes on a sex offender’s daily life include (1) a lifetime duty to register with local law enforcement for each city or county in which the offender resides and to update that registration annually or upon any relevant change (§§ 290-290.024); (2) a state-maintained Web site that discloses information about the offender to the public (§§ 290.4, 290.45, 290.46); (3) a sex offender’s duty to submit to monitoring with a global positioning device while on parole and potentially for the remainder of the offender’s life if the underlying sex offense was one of several identified felonies (§§ 3000.07, 3004, subd. (b)); (4) a prohibition against the offender “enter[ing] any park where children regularly gather without the express permission of his or her parole agent” if the victim of the underlying sex offense was under 14 years of age (§ 3053.8, subd. (a)); (5) a prohibition against the offender residing with another sex offender while on parole and within 2,000 feet of a school or park for the rest of the offender’s life (§ 3003.5); (6) a prohibition against the offender entering any school without “lawful business” and written permission from the school (§ 626.81); (7) enhanced penalties for the offender remaining at or returning to “any school or public place at or near which children attend or normally congregate” after a school or law enforcement official has asked the offender to leave (§ 653b, italics added); (8) a prohibition against the offender entering a daycare or residential facility for elders or dependent adults without registering with the facility if the victim of the underlying sex offense was an elder or dependent adult (§ 653c); (9) a duty to disclose the offender’s status as a sex offender when applying for or accepting a job or volunteer position involving direct and unaccompanied contact with minor children (§ 290.95, subds. (a) & (b)); (10) a prohibition against the offender working or volunteering with children if the victim of the underlying sex offense was under 16 years of age (§ 290.95, subd. (c)); and (11) a prohibition against the offender receiving publicly funded prescription drugs or other therapies to treat erectile dysfunction (§ 290.02).

Considered individually, the language in each of these statutes does not reflect a legislative intent to fully occupy the field of regulating a sex offender’s daily life; each statute simply regulates a specific aspect of a sex offender’s life. Considered collectively, however, a different picture emerges. The Legislature expressly declared its intent to establish a comprehensive and standardized system for regulating sex offenders when it passed the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337, p. 2583). That act contains more than 60 sections and made numerous changes to the statutes regulating sex offenders, including adding or amending several of the foregoing statutes. (People v. Cornett (2012) 53 Cal.4th 1261, 1267 [139 Cal.Rptr.3d. 837, 274 P.3d 456].) Among its many provisions, the act created several new offenses, increased the penalties for certain existing offenses, modified the statutes governing parole and probation for sex offenders, and revised the sex offender registration requirements and the system for disseminating information regarding sex offenders to the public and law enforcement. (Ibid.)

As part of the 2006 act, the Legislature enacted section 290.03, which states, “The Legislature finds and declares that a comprehensive system of risk assessment, supervision, monitoring and containment for registered sex offenders residing in California communities is necessary to enhance public safety and reduce the risk of recidivism posed by these offenders. ...[][]... [f] ... In enacting the Sex Offender Punishment, Control, and Containment Act of 2006, the Legislature hereby creates a standardized, statewide system to identify, assess, monitor and contain known sex offenders for the purpose of reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm.” (§ 290.03, subds. (a) & (b), italics added.) A comprehensive system is one that “include[es] or deal[s] with all or nearly all elements or aspects of [that subject].” (See Oxford Online Dict. [as of Jan. 10, 2014].) Restrict is not synonymous with either ban or prohibit.

Accordingly, the express specific intent of the ordinance compels us to conclude Irvine did not intend to adopt an outright ban on sex offenders entering city parks and recreational facilities if the written permission requirement in Irvine section 4-14-803 was invalidated. “This court has no power to rewrite the [ordinance] to make it conform to a presumed intention which its terms do not express.” (Abbott Laboratories, supra, 175 Cal.App.4th at p. 1360.)

m

Disposition

The judgment is affirmed.

Fybel, J., and Thompson, J., concurred.

All statutory re