By Alicia Lopez
11:14 AM PST, December 3, 2012
A registered sex offender and his lawyer recently convinced the Superior Court of Orange County appellate division to reverse his conviction for unlawfully entering a county park where children regularly gather.
The three-judge panel made clear its Nov. 15 unanimous decision applies only to the case filed by Hugo Godinez and not to other pending or future prosecutions, according to the Orange County District Attorney's office.
The court's decision has been referred to the Court of Appeal for possible review. That court can settle whether local jurisdictions are preempted by state law from passing the type of sex offender ordinances at issue in the Godinez case.
District Attorney Tony Rackauckas emphasized that his office will not back off sex offender cases.
"I believe that protecting children from sex offenders is one of the highest priorities in law enforcement," he said in the statement. "We will continue to review cases involving sex offenders in parks as they are presented on a case-by-case basis."
A registered sex offender, Godinez was convicted in November 2011 after he admitted entering Mile Square Regional Park in Fountain Valley during a Cinco de Mayo celebration and stayed for several hours. He said in court documents that he was there for a company picnic for his employer.
He initially was incarcerated for violating probation and released two months later. Because he apparently failed to re-register as a sex offender within five days of being released, he was again taken into custody by the county.
He was later convicted of a misdemeanor count of entering the park along with one misdemeanor count of failing to register and show proof of residency upon release. He was sentenced to 100 days in the Orange County jail and five years of formal probation.
Godinez's original offense was one misdemeanor count of sexual battery on June 23, 2010.
Godinez's Orange County Superior Court case is a result of relatively new county and city legislation that prohibits registered sex offenders from entering a variety of public places where children are often present. The offense is considered a misdemeanor, punishable by six months in jail and/or a $500 fine.
The Orange County Board of Supervisors passed the sex offender law, developed and proposed by Rackauckas and Supervisor Shawn Nelson, in April 2011.
According to a Nov. 28 post on the Reform Sex Offender Laws website, the Nov. 15 decision means the county ordinance violates the state constitution because it preempts existing California law which prohibits registered sex offenders from entering public parks but only if the registrant is on parole and offended against a child who is less than 14.
"This is a major victory for registrants, not only in Orange County, but throughout the state of California," Janice Bellucci, California RSOL state organizer, said on the website. "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined."
After the board of supervisors passed the sex offender law, Huntington Beach became one of the cities to set up similar ordinances; it was adopted in December 2011.
The Fountain Valley City Council passed its version of the law on Oct. 2, 2012
A day before that adoption, a lawsuit was filed by a registered sex offender who said the law violates his constitutional rights. His suit was filed in U.S. District Court against several cities, including Huntington Beach and Costa Mesa.
When the law was first adopted in 2011, it had among its detractors notable UC Irvine School of Law Dean Erwin Chemerinsky, a constitutional scholar who said the version adopted by Huntington Beach would likely violate the constitutional rights of offenders and open the door for lawsuits against the city.
He said limiting sex offenders from going to parks limits their movements and affects their livelihood.
"I think it would be unconstitutional to not have flexibility," he told the Independent. "The reality is that people have to have a place to live. A county, a city can't say, 'We don't want a sex offender to live here.' And the more restrictive an ordinance is, the less flexibility it has, the more likely to be declared unconstitutional."
Rackauckas said he plans to keep fighting for the ordinance.
"We also hope to present our position concerning preemption to the Court of Appeal and receive its decision on this important issue," he said in the statement.
A decision by the appellate court regarding further review of the decision is expected later this month.