People v. Nguyen

Filed 1/10/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Appellant, G048228

v. (Super. Ct. No. 12HM12229 &

30-2012-00621002)

JEANPIERRE CUONG NGUYEN,

OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Everett

W. Dickey, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy

District Attorney, for Plaintiff and Appellant.

Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender,

and Scott Van Camp, Deputy Public Defender, for Defendant and Respondent.

* * *

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the city ordinance as originally enacted because nothing in the language of the ordinance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 290.1 In September 2012, he entered a public park in the City

of Irvine without first obtaining written permission from the Irvine Police Chief. After

1 All statutory references are to the Penal Code unless otherwise stated.

2

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

(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 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

3

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, original italics (O’Connell).)

Nguyen does not argue 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

4

Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1252 (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; see also 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 (Baldwin); see also

Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708 (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 state‟s 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

5

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 “manifest[ed] 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; In re Lane

(1962) 58 Cal.2d 99, 103-104 (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; “It 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, quoting and disapproving Horton v. City of Oakland (2000)

82 Cal.App.4th 580, 586, italics omitted.) The Supreme Court explained this earlier

appellate decision erred by “focusing solely on the UCSA‟s forfeiture provisions . . .

[without] consider[ing] the UCSA‟s comprehensive scheme of drug crime penalties,

6

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[ed]” 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 (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

7

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.‟ [Citation.]” (City of Riverside,

supra, 56 Cal.4th at p. 743, original italics.) 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, overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63;

Gregory v. City of San Juan Capistrano (1983) 142 Cal.App.3d 72, 82 (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 (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.)

B. The Legislature’s Comprehensive and Standardized Scheme Regulating Sex

Offenders Preempts Irvine’s Ordinance

Nguyen contends state law impliedly preempts Section 4-14-803 because

the ordinance regulates an area the state has fully occupied by enacting a comprehensive

8

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 (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;

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 (Galvan).)

1. The Relevant State Law Field Includes All Restrictions Imposed on a Sex

Offender‟s Daily Life

The parties agree 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 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

9

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 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

10

the legislative scheme.‟ [Citations.]” (American Financial, supra, 34 Cal.4th at p. 1252;

see also 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; 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

11

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 day care 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; they each simply regulate 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). 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.2 (People v. Cornett (2012) 53 Cal.4th 1261, 1267.) Among its

2 Of the 11 categories of sex offender regulations identified in the previous

paragraph, six categories existed before the Legislature enacted the 2006 act (§§ 290,

290.02, 290.4, 290.45, 290.46, 290.95, subds. (a)-(c), 653b); the 2006 act amended or

12

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. . . . [¶] . . . [¶] 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.

<http://oxforddictionaries.com/definition/English/comprehensive> [as of Dec. 31, 2013];

see also Merriam-Webster Online Dict. <http://www.merriam-

webster.com/dictionary/comprehensive> [as of Dec. 31, 2013] [defining comprehensive

as “covering completely or broadly”].)

Considering the Legislature‟s declared intent coupled with the scope and

nature of the restrictions the foregoing Penal Code sections imposed, we conclude the

Legislature established a complete system for regulating a sex offender‟s daily life and

added the regulations in five categories (Stats. 2006, ch. 337, §§ 10, 11, 19.5, 25, 27, 28

[adding or amending §§ 290, 290.46, 626.81, 653b, 653c]); a 2006 voter initiative added

the regulations in two categories (Prop. 83, §§ 18, 21, 22, as approved by the voters,

Gen. Elec. (Nov. 7, 2006), eff. Nov. 8, 2006 [adding §§ 3000.07, 3003.5, subd. (b), 3004,

subd. (b)]); and one category of regulations was added after the Legislature enacted the

2006 act (§ 3053.8, subd. (a)).

13

manifested a legislative intent to fully occupy the field to the exclusion of

Section 4-14-803 and other local regulations. Considered as a whole, these statutes

regulate much more than the geographic restrictions imposed on a sex offender. They

regulate numerous aspects of a sex offender‟s life so that both law enforcement and the

public can monitor the sex offender on a daily basis. They also restrict the places a sex

offender may visit and the people with whom he or she may interact. These Penal Code

sections regulate a sex offender‟s duty to inform law enforcement where he or she

resides, law enforcement‟s ability to track a sex offender‟s movement through a global

positioning device, where and with whom a sex offender may reside, what sort of jobs or

volunteer positions a sex offender may accept, and, most importantly for this case, the

public and private places a sex offender may visit.

Although the Penal Code does not include a provision identical to the

restrictions Section 4-14-803 imposed on all sex offenders entering a public park where

children regularly gather, it does include several sections prohibiting or limiting a sex

offender‟s ability to visit many public and private places where children regularly gather.

A sex offender on parole for an offense against a child under 14 years of age may not

enter a park where children regularly gather without permission from his or her parole

agent. (§ 3053.8, subd. (a).) A sex offender may not enter a school without “lawful

business” and written permission from the school. (§ 626.81.) A sex offender who

remains at or returns to a school or any other public place where children regularly gather

after a school or law enforcement official has asked the offender to leave is subject to

heightened penalties. (§ 653b.) A sex offender who committed an offense against a child

under 16 years of age may not volunteer or work where he or she would have direct and

unaccompanied contact with minor children. (§ 290.95.) Finally, a sex offender may

never reside within 2,000 feet of a school or park where children regularly gather.

(§ 3003.5, subd. (b).) These restrictions are similar to Section 4-14-803‟s prohibition;

indeed, in some aspects they go beyond that prohibition.

14

Precisely how to restrict a sex offender‟s access to places where children

regularly gather reflects the Legislature‟s considered judgment on how to protect children

and other members of the public from the risk of a sex offender reoffending while also

recognizing a sex offender‟s right to live, work, assemble, and move about the state. (See

§ 290.03; American Financial, supra, 34 Cal.4th at pp. 1258-1259.) The Legislature‟s

enactment of a comprehensive statutory scheme that includes significant restrictions on a

sex offender‟s access to places where children regularly gather, but excludes an outright

ban on all sex offenders entering a park without written permission, manifests a

legislative determination that such a ban is not warranted. (O’Connell, supra, 41 Cal.4th

at p. 1072; American Financial, at p. 1258; Lane, supra, 58 Cal.2d at pp. 103-104.) “In

revisiting this area fully occupied by state law, [Section 4-14-803] undermines the

considered judgments and choices of the Legislature, and is therefore preempted.”

(American Financial, at p. 1257.)

Indeed, we see no relevant distinction between the foregoing statutory

scheme restricting a sex offender‟s daily life and other statutory schemes the Supreme

Court has found to fully occupy a field even though the state scheme did not include a

provision identical to the preempted local ordinance. (O’Connell, supra, 41 Cal.4th at

pp. 1071-1072 [state law defining drug offenses and penalties for those offenses fully

occupied field and preempted local ordinance imposing a penalty the state scheme

excluded]; American Financial, supra, 34 Cal.4th at pp. 1254-1255 [state law regulating

predatory lending practices in home mortgage industry fully occupied field and

preempted local ordinance regulating predatory lending practices for mortgages not

covered by state law]; Lane, supra, 58 Cal.2d at pp. 103-104 [state law regulating

criminal aspects of sexual activity fully occupied field and preempted local ordinance

criminalizing specific acts state law did not prohibit]; Abbott v. City of Los Angeles

(1960) 53 Cal.2d 674, 684-685 [Penal Code provisions requiring state to collect data on

criminals fully occupied field and preempted local ordinance requiring criminals to

15

register with local law enforcement].) Accordingly, we conclude state law preempts

Section 4-14-803 because it fully occupies the field Section 4-14-803 regulates.3

The District Attorney contends state law does not preempt

Section 4-14-803 because the two statutes Nguyen cites as geographical restrictions on a

sex offender (§§ 626.81, 3053.8) are not enough to establish a comprehensive scheme

that fully occupies the field.4 We do not find this argument persuasive. Adopting this

overly narrow and constricted definition of the relevant state law field would eviscerate

the implied preemption doctrine. As explained above, the proper field encompasses the

restrictions imposed on a sex offender‟s daily life to reduce the risk he or she will commit

another offense. When all state laws from the relevant field are considered, it is evident

the Legislature created a multitude of regulations patterned together to restrict a sex

offender‟s daily life. Contrary to the District Attorney‟s argument, the Legislature‟s

intent to fully occupy a field is determined based on the nature and scope of the statutes

the Legislature adopts. What counts is not the number of statutes covering a topic, but

the substantive scope of the legislative scheme. (Galvan, supra, 70 Cal.2d at

pp. 861-862; Baldwin, supra, 31 Cal.App.4th at p. 182.)

3 We base our conclusion on the legal standards governing state law

preemption of local ordinances. We do not, and indeed may not, consider whether it is

more prudent from a policy perspective to allow local government to supplement state

legislation regulating sex offenders. (California Ins. Guarantee Assn. v. Workers’ Comp.

Appeals Bd. (2005) 128 Cal.App.4th 307, 316 [“„Crafting statutes to conform with policy

considerations is a job for the Legislature, not the courts; our role is to interpret statutes,

not to write them‟”]; Cadiz v. Agricultural Labor Relations Bd. (1979) 92 Cal.App.3d

365, 372 [“The court should not, of course, be concerned with considerations of

legislative policy or wisdom. „Courts do not sit as super-legislatures to determine the

wisdom, desirability or propriety of statutes enacted by the Legislature‟”].)

4 Contrary to the District Attorney‟s assertion, more than just two statutes

place geographical restrictions on sex offenders. (§§ 626.81 [sex offenders entering

schools], 653b [sex offenders loitering at schools or public places after being asked to

leave], 653c [sex offenders entering daycare or residential facilities for elders and

dependent adults], 3053.8 [sex offenders on parole entering parks].)

16

The District Attorney also argues we should not employ a “„preemption by

volume‟ strategy” because many of the statutes in this field only focus on sex offenders

generally rather than the specific subject Section 4-14-803 addresses: geographic

restrictions on sex offenders. Although presented under a different guise, this argument

relies on the same improper definition of the relevant field. As discussed above, implied

preemption may not be based solely on the number of statutes “unified by a single

common noun.” (Galvan, supra, 70 Cal.2d at pp. 861-862 [“To approach the issue of

preemption as a quantitative problem provides no guidance in determining whether the

Legislature intends that local units shall not legislate concerning a particular subject, and

further confounds a meaningful solution to preemption problems by offering a

superficially attractive rule of preemption that requires only a statutory nosecount”].)

Rather, implied preemption exists when the state statutes are logically related and

establish a “„patterned approach‟” to regulating an area that includes the local ordinance‟s

subject matter. (Id. at p. 862; Fisher, supra, 37 Cal.3d at p. 708; Baldwin, supra,

31 Cal.App.4th at p. 182.) Here, the Penal Code sections at issue are all closely related

and establish a patterned approach for regulating a sex offender‟s daily life to reduce the

risk the offender will commit another offense. Section 4-14-803 invokes the same

purpose in imposing geographical restrictions and therefore it is preempted. This

analysis is not based on a preemption by volume strategy, as the District Attorney

contends.

Next, the District Attorney argues the Penal Code sections discussed above

do not establish a legislative intent to preempt the field because some of them include a

provision stating, “Nothing in this section shall preclude or prohibit prosecution under

any other provision of law.” (§§ 626.81, subd. (c); 653b, subd. (e); 653c, subd. (e).)

According to the District Attorney, this provision allows prosecution under local

ordinances regarding the subject of these statutes (sex offenders entering schools, sex

offenders loitering at schools or public places after being asked to leave, and sex

17

offenders entering day care or residential facilities for elders and dependent adults) and

therefore shows the Legislature did not intend to preempt additional regulations of sex

offenders. The District Attorney is mistaken.

“„[P]reemption by implication of legislative intent may not be found when

the Legislature has expressed its intent to permit local regulations. Similarly, it should

not be found when the statutory scheme recognizes local regulations.‟ [Citation.]” (Big

Creek Lumber, supra, 38 Cal.4th at p. 1157; Abbott, supra, 53 Cal.2d at p. 683.) These

rules apply when the state expressly authorizes or acknowledges local regulation on the

subject. For example, in Big Creek Lumber, the Supreme Court found state law

regarding timber harvesting did not preempt local zoning ordinances establishing the

permissible location for timber operations because state law expressly authorized and

deferred to local zoning authority concerning the location of timber production zones.

(Big Creek Lumber, at pp. 1153, 1157.) Similarly, in Great Western Shows, Inc. v.

County of Los Angeles (2002) 27 Cal.4th 853, the Supreme Court found state law

regulating gun shows did not impliedly preempt a local ordinance banning shows on

county-owned property because the state law expressly required gun show operations to

comply with all local laws and regulations. (Id. at pp. 864-866; see also

Sherwin-Williams, supra, 4 Cal.4th at pp. 904-905.) Here, the Penal Code sections on

which the District Attorney relies neither authorize nor acknowledge local regulation of

sex offenders.5

5 We note one of the foregoing Penal Code sections expressly authorizes

local regulation. Specifically, section 3003.5, subdivision (c) states, “Nothing in this

section shall prohibit municipal jurisdictions from enacting local ordinances that further

restrict the residency of any person for whom registration is required pursuant to

Section 290.” The District Attorney, however, does not argue this language establishes a

legislative intent to allow local regulation on any topic other than a sex offender‟s

residency, nor does the District Attorney argue this language prevents a finding state law

impliedly preempts Section 4-14-803. Instead, the District Attorney acknowledges this

subdivision was adopted by the voters through the initiative process, and therefore

reflects the voters‟ intent, not the Legislature‟s intent. (Prop. 83, § 21, as approved by

18

The District Attorney next argues the Legislature‟s declaration of intent in

section 290.03 does not establish an intent to preempt the field of regulating sex

offenders because the Legislature did not expressly state it intended to occupy the field to

the exclusion of local regulation. According to the District Attorney, the Legislature

knew how to state its intent to preempt the field when it intended to do so (see Govt.

Code, § 53071.5 [“By the enactment of this section, the Legislature occupies the whole

field of regulation of the manufacture, sale, or possession of imitation firearms . . . and

that subdivision shall preempt and be exclusive of all regulations relating to the

manufacture, sale, or possession of imitation firearms”]), and the mere declaration of a

state interest in a subject matter is not sufficient to fully occupy a field (see Baldwin,

supra, 34 Cal.App.4th at p. 175 [“[P]reemption cannot be accomplished by a statute

which merely declares that a field is preempted. The Legislature may not preempt the

exercise of the police power negatively, merely by forbidding its exercise”]).

This argument, however, fails to recognize that preemption may be either

express of implied. (American Financial, supra, 34 Cal.4th at p. 1261 [“Of course, by

definition, the Legislature‟s implicit full occupation of a field occurs only when there is

no express intent in the state law”].) Moreover, section 290.03 does more than just

express a state interest in regulating sex offenders. The Legislature in section 290.03

declared the need for “a comprehensive system of risk assessment, supervision,

monitoring and containment for registered sex offenders residing in California

communities” and therefore created “a standardized, statewide system to identify, assess,

monitor and contain known sex offenders.” (§ 290.03, subds. (a) & (b), italics added.)

voters, Gen. Elec. (Nov. 7, 2006), eff. Nov. 8, 2006.) Accordingly, we view this

subdivision as a voter created exception to the comprehensive statutory scheme

regulating a sex offender‟s daily life that in no way undermines the Legislature‟s intent to

fully occupy the field. If anything, the initiative implicitly recognizes the statutory

scheme preempts local regulation unless the voters carve out an exception.

19

Contrary to the District Attorney‟s contention, the Legislature did not declare an intent to

occupy the field but then fail to enact statutes occupying the field. (See Baldwin, supra,

34 Cal.App.4th at p. 175.) As explained above, the Legislature enacted numerous

statutes to occupy the field and its declared intent in section 290.03 underscores that

intent.

The District Attorney also argues the Legislature‟s express intent in

section 290.03 to create a standardized statewide monitoring system for known sex

offenders does not establish a legislative intent to fully occupy the field because the Sex

Offender Punishment, Control, and Containment Act of 2006 that enacted section 290.03

only added or amended one code section placing geographical restrictions on sex

offenders. According to the District Attorney, we must focus on what the Legislature

did—not what it said—and enacting one code section regulating where sex offenders may

go does not establish an intent to fully occupy the field. Again, the District Attorney

reaches this conclusion by viewing the Legislature‟s statutory scheme through the narrow

prism of the local regulation, thereby ignoring the scope and purpose of section 290.03.

As explained above, the relevant state law field for our preemption analysis is the

regulation of a sex offender‟s daily life. When the 2006 act is reviewed with that field in

mind, the act amended or added more than just one code section. (Stats. 2006, ch. 337,

§§ 10, 11, 13-17, 19, 25, 27, 28, 47.) The District Attorney‟s argument ignores the many

other code sections regulating a sex offender‟s daily life that already existed in 2006 and

additional regulations that have been added since that time. The 2006 act cannot be

viewed in isolation when considering the Legislature‟s declared intent to create a

comprehensive, statewide system regulating sex offenders.

Next, the District Attorney argues we should presume Section 4-14-803 is

valid because it falls within the scope of local government‟s traditional police power.

The District Attorney, however, fails to acknowledge when a presumption against

preemption properly arises and fails to show that presumption applies in this case.

20

California courts will presume a local regulation is not preempted by state law when the

local regulation is in an “area” over which local government traditionally has exercised

control, but the mere exercise of a local government‟s police power is not sufficient to

invoke the presumption against preemption. (See City of Riverside, supra, 56 Cal.4th at

pp. 742-743; Big Creek Lumber, supra, 38 Cal.4th at pp. 1149, 1151.) Land use

regulation is the classic example of an area in which a local regulation is entitled to a

presumption against preemption. (City of Riverside, at pp. 742-743; Big Creek Lumber,

at pp. 1149, 1151)

There is no presumption against preemption when a local ordinance

regulates in an area historically dominated by state regulation. (American Financial,

supra, 34 Cal.4th at p. 1255; cf. Hood v. Santa Barbara Bank & Trust (2006)

143 Cal.App.4th 526, 537 [“There is a general presumption against preemption unless the

state regulates in an area where there has been a „significant federal presence‟” (italics

added)].) Moreover, “„[w]hen there is a doubt as to whether an attempted regulation

relates to a municipal or to a state matter, or if it be the mixed concern of both, the doubt

must be resolved in favor of the legislative authority of the state.‟ [Citations.]” (State

Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th

547, 582.)

Sex offender registration is an area the state has traditionally regulated.

The Penal Code has included a “comprehensive scheme” regarding sex offender

registration since 1947, when the Legislature first enacted section 290 to require sex

offenders to register with local law enforcement by providing a written statement,

fingerprints, and a photograph. (Wright v. Superior Court (1997) 15 Cal.4th 521, 526;

Stats. 1947, ch. 1124, § 1, pp. 2562-2563; see Abbott, supra, 53 Cal.2d at pp. 676, 684

[1960 Supreme Court decision holding state law fully occupies the field of criminal

registration for all types of offenses, not just sex offenses].) Since at least 1982, the

Penal Code also has included limitations on a sex offender‟s ability to visit certain places.

21

(See Stats. 1982, ch. 1308, p. 4818, § 1 [prohibiting a sex offender from entering a school

unless he or she is a parent of a student or has written permission].) As explained above,

the Legislature also has enacted many other restrictions on a sex offender‟s daily life in

the ensuing years. The District Attorney, however, fails to cite any local efforts to

regulate sex offenders other than Section 4-14-803 and similar ordinances several cities

and the County of Orange have adopted since late 2010.6 Accordingly, the presumption

against state law preemption does not apply to Section 4-14-803.

Finally, the District Attorney argues the regulation of parks is an area local

governments traditionally have controlled and therefore we should presume state law

does not preempt Section 4-14-803. Section 4-14-803, however, does not regulate parks;

it regulates sex offenders. Indeed, Section 4-14-803‟s declared purpose and intent is “to

provide additional restrictions beyond those provided for in state law by restricting sex

offenders from certain limited locations, and by allowing for criminal penalties for

violations of this chapter.” (Irvine Mun. Code, § 4-14-801.) Accordingly,

Section 4-14-803 attempts to supplement state law regulations on sex offenders. But the

District Attorney fails to cite any authority showing regulation of sex offenders is an area

local governments traditionally have controlled.

6 Since 2010, the following 15 Orange County cities plus the County of

Orange (Orange County Code, §3-18-3) have adopted ordinances similar to

Section 4-14-803 and still maintain these ordinances: Anaheim (Anaheim Mun. Code,

§ 7.60.020); Costa Mesa (Costa Mesa Mun. Code, § 11-203); Fullerton (Fullerton Mun.

Code, § 7.150.050); Huntington Beach (Huntington Beach Mun. Code, § 9.22.030); La

Habra (La Habra Mun. Code, § 9.66.030); Laguna Hills (Laguna Hills Mun. Code,

§ 6-40.030); Los Alamitos (Los Alamitos Mun. Code, § 9.14.030); Mission Viejo

(Mission Viejo Mun. Code, § 11.23.030); Orange (Orange Mun. Code, § 9.10.030);

Rancho Santa Margarita (Rancho Santa Margarita Mun. Code, § 6.13.030); Santa Ana

(Santa Ana Mun. Code, § 10-702); Seal Beach (Seal Beach Mun. Code, § 7.70.020);

Tustin (Tustin Mun. Code, § 5953); Westminster (Westminster Mun. Code, § 9.71.030);

and Yorba Linda (Yorba Linda Mun. Code, § 9.28.030).

22

C. State Law Impliedly Preempts Section 4-14-803 Based on Its Implicit Registration

Requirement

In addition to its prohibition against a sex offender entering city parks and

recreational facilities without written permission, Section 4-14-803 also regulates a sex

offender‟s duty to register with local law enforcement. Implicit in the ordinance‟s written

permission requirement is the obligation to apply to the Irvine Police Chief if a sex

offender wishes to visit a city park and recreational facility. Section 4-14-803 does not

establish a procedure for a sex offender to obtain the required permission, but presumably

the offender at least must provide identification and contact information to the police

chief, explain why he or she wants to enter a specific city park and recreational facility,

and identify the sex offense for which he or she was convicted.7 That is a de facto

registration requirement that goes beyond the Penal Code‟s standardized registration

requirements for sex offenders and therefore constitutes an independent ground for

finding state law preempts Section 4-14-803.

As explained above, sex offender registration is an area the state has

traditionally regulated since 1947, when the Legislature placed in the Penal Code a

“comprehensive scheme” regarding sex offender registration. (Wright, supra, 15 Cal.4th

at p. 526; Stats. 1947, ch. 1124, § 1, pp. 2562-2563.) Other than Section 4-14-803 and

similar ordinances recently adopted by the County of Orange and several local cities, the

District Attorney fails to cite any examples of local governments legislating in the sex

offender registration domain. (See American Financial, supra, 34 Cal.4th at p. 1255 [in

determining whether Legislature intended to impliedly preempt field, courts must

consider whether the subject matter was historically controlled by state regulation].)

7 The complete absence of any provisions regarding how a registered sex

offender may obtain permission to enter a city park and recreational facility or what

standards the Irvine Police Chief must apply in deciding whether to grant permission

raise questions about the validity of the ordinance. We need not delve into this issue,

however, because the parties did not raise the matter.

23

More than 50 years ago, the California Supreme Court held state law fully

occupied the field of criminal registration for all types of offenses, not just sex offenders.

(Abbott, supra, 53 Cal.2d at pp. 676, 684.) In Abbott, the City of Los Angeles enacted an

ordinance that made it unlawful for any person convicted of a felony or certain identified

misdemeanors to remain in the city for more than five days without registering with the

police chief. (Id. at p. 676 & fn. 1.) Although section 290 was the only Penal Code

section that required a person convicted of any type of crime to register with local law

enforcement, the Abbott court found section 290, combined with other Penal Code

sections, fully occupied the entire field of criminal registration. Those other Penal Code

sections required the state to maintain files and identifying information about offenders

who committed certain crimes, which allowed the state to monitor them in the same way

as the registration requirements section 290 imposed. (Abbott, at pp. 684-687.)

Accordingly, the Supreme Court concluded, “An examination of the Penal Code . . .

indicates that the state Legislature has preempted the very field of registration as a means

of apprehension of criminals. This it has done by expressly requiring registration in some

instances and by inferentially rejecting it in others. Thus, in this basic respect the state

statutes and the local ordinance are in conflict [and the state statutes therefore preempt

the local ordinance requiring criminal registration].” (Id. at p. 685.)

In its current form, California‟s Sex Offender Registration Act (§§ 290 to

290.024) establishes a more detailed and comprehensive statutory scheme than

section 290 established when the Supreme Court decided Abbott. The current act defines

a sex offender‟s lifetime duty to register with local law enforcement for each city or

county in which he or she regularly resides (§§ 290, subd. (b), 290.010); who must

register as a sex offender (§§ 290, subd. (c), 290.001-290.009); the information law

enforcement personnel must provide to a sex offender regarding his or her duty to register

(§ 290.017); the information a sex offender must provide when registering (§§ 290.015,

290.016); a sex offender‟s duty to update his or her registration annually and also within

24

five working days of any change in his or her residence or name (§§ 290.012-290.014);

how and with whom a transient sex offender must register (§ 290.011); and misdemeanor

and felony punishment for a sex offender who fails to properly register (§ 290.018).

Other Penal Code sections also require a sex offender to register with campus police

when he or she enrolls or works at any college or university regardless of where the sex

offender resides (§ 290.01) and require the state to maintain a Web site and otherwise

publicly disclose certain information regarding all registered sex offenders (§§ 290.4,

209.45, 290.46).

These provisions “„are so extensive in their scope that they clearly show an

intention by the Legislature to adopt a general scheme for the regulation of‟” sex offender

registration. (American Financial, supra, 34 Cal.4th at pp. 1254-1255; Lane, supra,

58 Cal.2d at pp. 103-104; see also O’Connell, supra, 41 Cal.4th at pp. 1071-1072;

Abbott, supra, 53 Cal.2d at pp. 684-685.) Accordingly, we conclude state law impliedly

preempts Section 4-14-803 based on the implicit registration requirement it imposes on

sex offenders who wish to enter a city park and recreational facility.

The District Attorney contends the Penal Code provisions on sex offender

registration do not preempt Section 4-14-803 because the ordinance does not include an

implicit registration requirement analogous to the Penal Code‟s registration requirement.

According to the District Attorney, the Penal Code provisions require all sex offenders to

register with local law enforcement based solely on a disability suffered in the past—a

conviction for one or more enumerated sex offenses. In contrast, the District Attorney

contends Section 4-14-803 is merely a prospective licensing or permit provision that

allows sex offenders to obtain permission to voluntarily engage in a specific activity in

which they otherwise would not be allowed to engage—entering a city park and

recreational facility where children regularly gather.

The District Attorney relies on Cohen v. Board of Supervisors (1985)

40 Cal.3d 277 (Cohen). There, a city ordinance required anyone who wanted to operate

25

an escort service to obtain a permit by applying to the city, paying a fee, and providing

certain identifying and background information. (Id. at pp. 284-285.) A taxpayer

challenged the ordinance on preemption grounds, arguing the ordinance “impermissibly

seeks to regulate the criminal aspects of sexual conduct, an area of legislation preempted

by state law through our Penal Code.” (Id. at p. 290.) The Supreme Court rejected this

challenge because it viewed the ordinance as merely a business regulation requiring

escort services to obtain a permit before conducting business within the city, not an

attempt to regulate the criminal aspects of sexual activity. Because no state law provision

regulated escort services or their licensing, the Cohen court found the ordinance was a

valid exercise of the city‟s licensing power and was not preempted by state law. (Id. at

pp. 295-296.)

Cohen is readily distinguishable. Section 4-14-803 is not a licensing or

permit regulation like the ordinance in Cohen; it is a sex offender regulation. The

ordinance in Cohen applied to anyone who wanted to operate an escort service, but

Section 4-14-803 only applies to sex offenders. No one who wants to enter a city park

and recreational facility is required to apply to the Irvine Police Chief for permission

other than sex offenders. As explained above, Section 4-14-803‟s declared intent is “to

provide additional restrictions beyond those provided for in state law by restricting sex

offenders from certain limited locations.” (Irvine Mun. Code, § 4-14-801.)

Moreover, Cohen found the city‟s ordinance was not preempted because

state law did not include a provision regulating escort services or requiring them to obtain

a license or permit. Here, the Penal Code includes numerous provisions that require sex

offenders to register with law enforcement in the city where they reside.

Section 4-14-803 effectively includes an additional registration requirement because it

requires any sex offender who wants to visit a city park and recreational facility to apply

to the Irvine Police Chief, provide identification and contact information, explain why he

or she wants to enter a specific park, and provide information regarding the sex offense

26

for which he or she was convicted. This requirement effectively requires sex offenders

who want to enter a city park and recreational facility to register with a law enforcement

agency in addition to the police department for the city in which they reside by providing

much of the same information. Accordingly, we conclude the written permission

requirement is a de facto or implicit registration requirement preempted by Penal Code

registration requirements.

Finally, the District Attorney argues we need not invalidate

Section 4-14-803 in its entirety if we conclude state law preempts the written permission

requirement in the ordinance. According to the District Attorney, we may sever the

written permission requirement and allow the remainder of Section 4-14-803 to remain as

an outright ban on all sex offenders entering a city park and recreational facility where

children regularly gather. We decline to do so.

When part of a local ordinance is preempted or otherwise invalid, local

officials may enforce the remainder of the ordinance if the preempted or invalid part can

be severed. (Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999)

21 Cal.4th 585, 613 (Hotel Employees).) A preempted or invalid part of an ordinance

“can be severed if, and only if, it is „grammatically, functionally and volitionally

separable.‟ [Citation.]” (Ibid.) If the ordinance “„is not severable, then the void part

taints the remainder and the whole becomes a nullity.‟” (Santa Barbara Sch. Dist. v.

Superior Court (1975) 13 Cal.3d 315, 330; Connerly v. Schwarzenegger (2007)

146 Cal.App.4th 739, 747.)

The invalid part “„is “grammatically” separable if it is “distinct” and

“separate” and, hence, “can be removed as a whole without affecting the wording of any”

of the measure‟s “other provisions.” [Citation.] . . .‟ [Citation.]” (Jevne v. Superior

Court (2005) 35 Cal.4th 935, 960-961 (Jevne); Hotel Employees, supra, 21 Cal.4th at

p. 613.) “To be grammatically separable, the valid and invalid parts of the statute can be

separated by paragraph, sentence, clause, phrase, or even single words.” (Abbott

27

Laboratories v. Franchise Tax Bd. (2009) 175 Cal.App.4th 1346, 1358 (Abbott

Laboratories).) Here, Section 4-14-803‟s preempted written permission requirement is

grammatically separable because the clause “without written permission from the

Director of Public Safety/Chief of Police or his designee” can be removed and

Section 4-14-803 would then be an outright ban that reads as follows: “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 . . . is guilty of a misdemeanor.” (§ 4-14-803.)

“To be functionally separable, the remainder after separation of the invalid

part must be „“„complete in itself‟”‟ and „capable of independent application.‟

[Citation.]” (Abbott Laboratories, supra, 175 Cal.App.4th at p. 1358.) An invalid

portion of an ordinance “„is “functionally” separable if it is not necessary to the

measure‟s operation and purpose. [Citation.] . . .‟ [Citation.]” (Jevne, supra, 35 Cal.4th

at p. 961; Hotel Employees, supra, 21 Cal.4th at p. 613.) Here, Section 4-14-803 is

complete in itself and capable of independent application after the written permission

requirement is removed, but whether that requirement is necessary to Section 4-14-803‟s

operation and purpose is more problematic. As we explain below, nothing in

Section 4-14-803 suggests Irvine intended to adopt a complete ban on sex offenders

entering a city park and recreational facility, but that is what Section 4-14-803 would

require if we sever the written permission requirement.

“To be volitionally separable, „[t]he final determination depends on

whether “the remainder . . . is complete in itself and would have been adopted by the

legislative body had the latter foreseen the partial invalidation of the statute” . . . or

“constitutes a completely operative expression of the legislative intent[.]”‟ [Citation.]”

(Abbott Laboratories, supra, 175 Cal.App.4th at p. 1358.) An invalid portion of an

ordinance “„is “volitionally” separable if it was not of critical importance to the

28

measure‟s enactment. [Citation.]‟ [Citation.]” (Jevne, supra, 35 Cal.4th at p. 961;

Hotel Employees, supra, 21 Cal.4th at p. 613.)

We conclude Section 4-14-803‟s written permission requirement is not

volitionally separable because the District Attorney fails to demonstrate, either by the

ordinance‟s express terms or its history, Irvine intended a complete and outright ban

against sex offenders entering a city park or recreational facility, no matter the

circumstances. An invalid portion of an ordinance is volitionally separable if the

remainder of the ordinance reflects a substantial portion of the legislative body‟s purpose

in passing the ordinance. (Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707,

715.) Here, allowing the remainder of Section 4-14-803 to stand as an outright ban on

sex offenders entering a city park or recreational facility would go beyond Irvine‟s intent

in passing Section 4-14-803.

As adopted, Section 4-14-803 allowed sex offenders to obtain permission to

enter a city park and recreational facility. For example, Section 4-14-803 would allow an

offender to apply for and potentially obtain permission to view sporting events or other

activities of his or her child at a city park or recreational facility. Nothing in the

ordinance adopting Section 4-14-803 suggests Irvine intended to entirely prohibit all sex

offenders from entering city parks and recreational facilities even under these innocent

circumstances.

To the contrary, the ordinance adopting Section 4-14-803 includes a

purpose and intent section that reveals Irvine sought to restrict the use of city parks and

recreational facilities by sex offenders, but not impose an outright ban: “It is the purpose

and intent of this chapter 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. It is

further the intent of this chapter to provide additional restrictions beyond those provided

29

for in state law by restricting sex offenders from certain limited locations . . . .”

(Irvine Mun. Code, § 4-14-801, italics added.) To restrict is “to confine or keep within

limits, as of space, action, choice, intensity, or quantity.” (Dictionary.com

<http://dictionary.reference.com/browse/restrict> [as of Dec. 31, 2013].) 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 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.)

III

DISPOSITION

The judgment is affirmed.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.

30

FYBEL, J. concurring.

I agree with the majority that a local ordinance regulating the conduct of

Penal Code section 290 registrants is preempted by California state law on the same

subject. I write separately to emphasize that legislative declarations and findings

expressly creating a “standardized, statewide system” (Pen. Code, § 290.03, subd. (b),

italics added) and a “comprehensive system of risk assessment, supervision, monitoring

and containment for registered sex offenders residing in California communities” (id.,

§ 290.03, subd. (a)) compel the conclusion these state statutes preempt the ordinance.

Penal Code section 290.03, subdivision (b), enacted by the state Legislature

and signed by the Governor, contains this express finding and declaration: “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.” (Italics

added.) Section 290.03, subdivision (a) provides that “[t]he 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.”

(Italics added.)

In view of these express legislative declarations and findings—and the

content of the statutes discussed in the majority opinion—the requirements for

preemption established by the California Constitution and the California Supreme Court

have been satisfied. The key legal authorities on state preemption begin with 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 laws.”

1

What does “in conflict with general laws” mean? On this subject, the

California Supreme Court has summarized the applicable 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.)

JeanPierre Cuong Nguyen argues the state law impliedly preempts the

ordinance by fully occupying the field. The Supreme Court in O’Connell v. City of

Stockton, supra, 41 Cal.4th at page 1068, observed, “„“[w]here 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.”‟

[Citation.]” In adopting Penal Code section 290.03, the Legislature expressed its intent to

occupy the field of regulating registered sex offenders on a standardized, statewide basis.

I also write to emphasize that whether the ordinance is wise, reasonable, or

necessary is not an issue before us. The only issue before us is whether the state statute

preempts the ordinance. Based on this analysis and the words of Penal Code

section 290.03, it is clear to me the state intended to fully occupy the field of regulating

registered sex offenders. The ordinance is therefore unconstitutional under article XI,

section 7 of the California Constitution. If the Legislature wishes to do so, it can amend

Section 290.03 to permit local ordinances.

FYBEL, J.

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