In re Walter S. (2001)

[Modification of Opinion (89 Cal. App. 4th 946; 107 Cal.Rptr.2d 752) on denial of petition for rehearing.]

In re WALTER S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. WALTER S., Defendant and Appellant.

THE COURT. fn. † -

It is ordered that the opinion filed herein on June 6, 2001, be modified in the following particulars:

On page 10 [89 Cal. App. 4th 956, advance report], after the heading "Cruel or Unusual Punishment," the following is inserted:

In In re Reed (1983) 33 Cal. 3d 914, 919-922 (Reed), the California Supreme Court held that the requirement to register as a convicted sex offender is punishment within the meaning of the prohibition of California Constitution, article 1, section 17 against cruel or unusual punishment. That holding has never been overruled.

In People v. Castellanos (1999) 21 Cal. 4th 785, the lead opinion concluded that the requirement to register as a sex offender is not punishment within the meaning of the prohibition in the federal and California Constitutions against ex post facto laws. (Castellanos, supra, 21 Cal.4th at pp. 789-799 (lead opn. of George, C.J.).) In a concurring and dissenting opinion, Justice Kennard noted that sex offender registration may be punishment for purposes of article I, section 17 of the California Constitution. (Id. at p. 805.) Recently, in People v. Ansell (2001) 25 Cal. 4th 868, the California Supreme Court unanimously held that an amendment to the procedure for certificates of rehabilitation that made such a certificate unavailable to persons convicted of particular sex offenses does not violate the prohibition of the [90 Cal. App. 4th 529b] federal and California Constitutions against ex post facto laws. (Ansell, supra, at pp.883-893 [typed opn. at pp. 19-33].) The court noted that a majority of the California Supreme Court had agreed in Castellanos that registration laws have traditionally not been viewed as criminal or penal in nature. (Ansell, supra, at p. 886.)

In In re Alva (2001) 89 Cal. App. 4th 758, Division Three of this court held that since Reed has not been overruled, the requirement to register as a sex offender is punishment within the meaning of the prohibition in the California Constitution against cruel or unusual punishment. (Alva, supra, at p. 766.) Alva also held, however, that the requirement to register as a convicted sex offender for possession of child pornography in violation of Penal Code section 311.11, subdivision (a) does not constitute cruel or unusual punishment within the meaning of the prohibition in the California Constitution against cruel or unusual punishment.

Based on the holding in Reed, we conclude that the requirement to register as a gang offender is punishment within the meaning of the prohibition against cruel or unusual punishment in California Constitution, article I, section 17.

Respondent's petition for rehearing is denied.

This modification does not change the judgment.

FN †. Before Boren, P.J., Nott, J. and Cooper, J.