Filed 5/2/17 P. v. Johnson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DERRICK LYNN JOHNSON,
Defendant and Appellant.
B270246
(Los Angeles County
Super. Ct. No. BA438628)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Drew E. Edwards, Judge. Affirmed.
Melissa Hill, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Ilana Herscovitz,
Deputy Attorneys General, for Plaintiff and Respondent.
2
Defendant and appellant Derrick Lynn Johnson
(defendant) appeals from the judgment entered after a jury
convicted him of failing to register as a sex offender. Defendant
was required to register as a sex offender following his 1986
conviction of two counts of sexual penetration with a foreign
object and seven counts of first degree burglary, crimes he
committed when he was 17 years old, and for which he was tried
as an adult.
Defendant contends California’s mandatory lifetime sex
offender registration requirement as applied to juvenile offenders
constitutes punishment in violation of the ex post facto clauses of
the United States and California Constitutions, constitutes cruel
and unusual punishment, and violates substantive due process.
We conclude the registration requirement does not
constitute punishment within the meaning of federal or
California ex post facto laws and on that basis affirm the
judgment.
BACKGROUND
In 1986, defendant pleaded no contest in adult court to nine
crimes he committed when he was 17 years old: two counts of
forcible sexual penetration with a foreign object, in violation of
Penal Code section 289, subdivision (a),1 and seven counts of first
degree burglary. He was committed to the California Youth
Authority for 10 years and was discharged from parole in 1993.
Defendant’s conviction of offenses in violation of section 289
made him subject to lifetime sex offender registration
requirements under section 290.2 (§§ 290, 290.008.) He was

1 All further statutory references are to the Penal Code,
unless stated otherwise.
2 Section 290 requires a person convicted of an enumerated
offense to register as a sex offender with local law enforcement
3
convicted in 1996 and 2012 for failing to register, but submitted
annual updates to his registration on August 26, 2009, and May
17, 2012. In his May 17, 2012 registration, defendant listed his
address as a residence in Missouri. On page two of the
registration form, defendant signed and acknowledged that his
duty to register as a sex offender was a lifetime requirement, that
he must update his registration information within five days of
any change, and that he must register as a transient if homeless.
On July 27, 2015, and again on August 7, 2015, public
safety officers at the University of Southern California responded
to trespass calls and encountered defendant in the law library.
Defendant had a suitcase, a jacket, and several other items in his
possession. He produced a Missouri driver’s license as
identification. The officers determined that defendant was a
transient because he did not provide a local address and had been
storing his personal belongings in a school locker. Defendant was
arrested on August 7, 2015.
In an amended information filed on November 5, 2015, the
Los Angeles County District Attorney charged defendant with
failure to register as a sex offender. The information further
alleged that defendant had suffered nine prior serious and/or
violent felony convictions. The trial court denied a motion by
defendant to dismiss the information. The matter proceeded to a
jury trial, at which defendant testified in his own defense.
Defendant testified that he was an iron welder and that he
traveled to different states for work. He denied living in

authorities in the city or county in which the person resides for
the rest of the person’s life. Section 290.008 imposes the same
lifetime registration requirement on juvenile offenders who were
committed to the California Youth Authority for an enumerated
offense. (§ 290.008, subd. (a).) Violation of section 289 is an
enumerated offense under both statutes.
4
California or residing at the USC campus. Defendant admitted
that he last registered on May 17, 2012, and that he had suffered
prior convictions in 1996 and 2012 for failing to register. He
further admitted that he had been in Los Angeles for
approximately one month before his arrest.
At the conclusion of the trial, the jury found defendant
guilty and found the prior conviction allegations to be true. The
trial court denied defendant’s motion for a new trial and
sentenced him to state prison for two years, doubled to four years
pursuant to sections 667, subdivisions (b) though (i) and 1170.12,
subdivisions (a) through (d).
This appeal followed.
DISCUSSION
I. Applicable law and legal principles
A. Ex post facto analysis
Article I, section 10, clause 1 of the federal Constitution
provides, in pertinent part: “No state shall . . . pass any . . . ex
post facto Law.” Article I, section 9 of the California Constitution
similarly provides that an “ex post facto law . . . may not be
passed.” Both constitutional provisions prohibit enactment of
laws that “retroactively alter the definition of crimes or increase
the punishment for criminal acts.” (Collins v. Youngblood (1990)
497 U.S. 37, 43; People v. Grant (1999) 20 Cal.4th 150, 158.)
To determine whether a particular law is punishment for
purposes of an ex post facto analysis, the United States Supreme
Court, in Smith v. Doe (2003) 538 U.S. 84 (Smith), prescribed a
two-part test. Under part one of that test, a court must
determine whether the Legislature intended to impose
punishment. “If the intention of the legislature was to impose
punishment, that ends the inquiry.” (Id. at p. 92.) If the court
concludes, however, that the Legislature intended to enact “a
regulatory scheme that is civil and nonpunitive,” it must then
5
determine whether the statutory scheme is “‘“so punitive either
in purpose or effect as to negate [the State’s] intention” to deem it
“civil.”’” (Ibid.) To make this latter determination, a court must
apply the factors set forth in Kennedy v. Mendoza-Martinez
(1963) 372 U.S. 144 (Mendoza-Martinez). (Smith, at p. 97.)
These factors, which are “‘neither exhaustive nor dispositive’”
(ibid.), include whether the law imposes what has been viewed
traditionally as punishment, creates an affirmative disability or
restraint, promotes the traditional aims of punishment, has a
rational connection to a nonpunitive purpose, or is excessive with
respect to the nonpunitive purpose. (In re Alva (2004) 33 Cal.4th
254, 266-267 (Alva).)
B. Sex offender registration for juvenile offenders
Section 290.008, subdivision (a) provides: “Any person who,
on or after January 1, 1986, is discharged or paroled from the
Department of Corrections and Rehabilitation to the custody of
which he or she was committed after having been adjudicated a
ward of the juvenile court pursuant to Section 602 of the Welfare
and Institutions Code because of the commission or attempted
commission of any offense described in subdivision (c) shall
register in accordance with the [Sex Offender Registration] Act.”
The statute imposes a lifetime registration requirement on
juvenile offenders who were committed to the California Youth
Authority3 for an enumerated sex offense. (In re Robert M. (2013)
215 Cal.App.4th 1178, 1182-1183 (Robert M.).)
II. Sex offender registration is not punishment
A statute violates the ex post facto clauses of the federal
and California Constitutions only if it retroactively imposes

3 The California Youth Authority is now known as the
Division of Juvenile Facilities, which is within the Department of
Corrections and Rehabilitation. (In re J.L. (2008) 168
Cal.App.4th 43, 47, fn. 1.)
6
punishment for a criminal act. (Collins v. Youngblood, supra, 497
U.S. at p. 43; People v. Grant, supra, 20 Cal.4th at p. 158.) Sex
offender registration is not punishment. “[T]he United States
Supreme Court confirmed beyond doubt that laws requiring the
registration of convicted sex offenders -- including now common
provisions for public dissemination of information about the
identity and whereabouts of dangerous offenders -- do not impose
punishment for purposes of the federal ex post facto clause.
[Citation.]” (Alva, supra, 33 Cal.4th at p. 273, citing Smith.) The
California Supreme Court has also held that mandatory sex
offender registration required by section 290 is not punishment
for purposes of the ex post facto clause of the California
Constitution. (Alva, at p. 292; People v. Castellanos (1999) 21
Cal.4th 785, 796 (Castellanos).) Our state high court concluded
that the law is regulatory in nature, intended to assure that
persons convicted of enumerated crimes shall be readily available
for police surveillance at all times because the Legislature has
deemed them likely to commit similar offenses in the future.
(Castellanos, at p. 796.)
Defendant contends the foregoing authorities should be
reconsidered in light of statutory amendments subsequent to his
1986 conviction that imposed additional restrictions. He cites
amendments that extend the registration requirements to sex
offenders who are out-of-state residents employed in California or
enrolled in California educational institutions (§§ 290.002,
290.009); that require offenders to provide and keep current
substantial quantities of personal information, including a list of
all Internet service providers and Internet identifiers used,
address, employment, and vehicle ownership (§§ 290.012,
290.013, 290.015); that allow law enforcement agencies to
disclose an offender’s personal information to members of the
public upon request for such information (§ 290.45); and that
7
impose restrictions on residency, travel, and entry onto school
grounds and adult care facilities (§§ 626.81, 653c, 3003.5).
Defendant contends these additional restrictions make section
290 an ex post facto law because they post-date the commission of
his qualifying crimes and apply retroactively.
The additional restrictions imposed since defendant’s 1986
conviction do not apply retroactively. Rather, they apply
prospectively to conduct occurring after their statutory effective
dates. For example, with regard to residency restrictions
imposed in 2006 making it unlawful for a person required to
register as a sex offender to live near a school or park where
children regularly gather (§ 3003.5), the California Supreme
Court concluded that the restrictions do not constitute
punishment for a defendant’s past crimes. Although section
3003.5 applies to defendant solely by virtue of his status as a
registered sex offender, the residency restrictions apply to
conduct occurring after the statute’s effective date and do not
impose additional punishment for his 1986 conviction. (In re E.J.
(2010) 47 Cal.4th 1258, 1276-1278, 1280.) The same analysis
applies with respect to the other restrictions imposed after
defendant’s 1986 conviction. Those restrictions do not violate the
ex post facto clauses of the federal or California Constitutions.
(E.J., at p. 1280.)
Defendant argues that neither the United States Supreme
Court nor the California Supreme Court has considered whether
the mandatory lifetime sex offender registration requirement as
applied to juvenile offenders constitutes punishment in violation
of the federal and California ex post facto clauses. He argues
that a different standard should apply to persons who were
convicted of a qualifying sex crime before the age of 18. As
support for his position, defendant cites dissenting opinions by
Justices Stevens and Ginsberg in Smith, and studies that
8
conclude that juvenile sex offenders recidivate at lower rates
than adult offenders. The dissenting opinions and the cited
studies are not a valid basis for departing from applicable federal
and California Supreme Court authority. (See Auto Equity Sales
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [appellate
courts are bound by decisions of the California Supreme Court].)
As further support for his argument that a different
standard should apply to juvenile offenders required to register
as sex offenders, defendant cites Roper v. Simmons (2005) 543
U.S. 551 (Roper) and Graham v. Florida (2010) 560 U.S. 48
(Graham), in which the United States Supreme Court held that
the Eighth Amendment prohibits imposition of the death penalty
on juvenile offenders whose crimes were committed before the
age of 18 (Roper, at p. 568), and a life sentence without parole on
juvenile defendants who did not commit homicide (Graham, at p.
68). Both of those cases involved the imposition of indisputably
criminal punishments -- the death penalty and life imprisonment.
Neither Roper nor Graham addressed whether a statute that is
regulatory in nature, such as section 290, was intended to impose
punishment, or is “so punitive in purpose or effect” as to
constitute punishment for ex post facto purposes. That issue was
squarely decided by the United States Supreme Court in Smith,
and by the California Supreme Court in Castellanos and Alva.
Both courts concluded that sex offender registration laws such as
section 290 do not constitute punishment in violation of the
federal and California ex post facto clauses. (Smith, supra, 538
U.S. at p. 93; Castellanos, supra, 21 Cal.4th at p. 796.)
Defendant provides no valid basis for concluding that sex
offender registration, as applied to juvenile offenders, constitutes
punishment in violation of the federal or California ex post facto
clauses. Under the two-part test prescribed by the United States
Supreme Court in Smith, the statute is not punitive. There is no
9
evidence the Legislature intended sex offender registration as a
punishment for juvenile offenders. Rather, the evidence is to the
contrary. The lifetime registration requirement applies only to
juveniles who were committed to the California Youth Authority
for committing an enumerated offense. (§ 290.008; Robert M.,
supra, 132 Cal.App.4th at p. 1183.) It does not apply to “wards
committed to juvenile hall for the same sexual offenses.
[Citation.]” (Robert M., at p. 1183.) By distinguishing between
the two types of juvenile offenders, “the Legislature consciously
sought to require registration only of those ‘violent or repeat
offenders’ whose dangerousness warranted the imposition of a
penal measure otherwise reserved for convicted criminals. It
chose to do so by predicating registration on the juvenile’s having
been subjected to the most restrictive of all juvenile court
dispositions, Youth Authority commitment.” (In re Bernardino S.
(1992) 4 Cal.App.4th 613, 621.) The registration requirement as
applied to juvenile offenders is regulatory in nature. (Ibid.;
Castellanos, supra, 21 Cal.4th at p. 796.)
Applying part two of the Smith test, sex offender
registration in California is not punitive in effect. (Alva, supra,
33 Cal.4th at p. 279.) Our state high court reached this
conclusion after applying the factors set forth in MendozaMartinez:
“Registration has not historically been viewed as
punishment, imposes no direct disability or restraint beyond the
inconvenience of compliance, and has a legitimate nonpenal
objective. Though registration may have incidental deterrent or
retributive effects, and applies to conduct which is already a
crime, these features are not sufficient to outweigh the statute’s
regulatory nature. Nor is it dispositive that the registration
statute appears in the Penal Code, and that the obligation to
register is imposed as part of a criminal proceeding.” (Alva,
supra, 33 Cal.4th at p. 279.)
10
Finally, the registration requirement is not excessive in
relation to its regulatory purpose. The statute applies only to
those juvenile offenders whose dangerousness and risk of
recidivism warrant imposition of the registration requirement.
(Bernardino S., supra, 4 Cal.App.4th at pp. 620-621.) “The line
drawn by the Legislature may not include all juvenile wards as to
whom the degree of dangerousness is unacceptably high, and it
may not exclude all those as to whom the risk is low. However,
the Legislature is not required to formulate a perfect
classification or a perfect test. If it were, few statutory
distinctions could survive.” (Id. at p. 621.)
The lifetime sex offender registration requirement as
applied to persons who committed qualifying sex offenses as
juveniles is not punishment. The requirements accordingly do
not violate the federal or California ex post facto clauses.
III. Cruel and unusual punishment
In view of our holding that sex offender registration as
applied to juvenile offenders does not constitute punishment, we
need not address defendant’s argument that it violates federal
and California constitutional prohibitions against cruel and
unusual punishment.
IV. Substantive due process
Defendant contends the registration requirement violates
his substantive due process rights to certain liberty interests,
including the ability to change residences and to live in certain
areas, enter schools and parks, and pursue certain occupations.
Defendant failed to raise this argument in the trial court below
and failed to present any evidence to support the merits of his as
applied constitutional challenge. He accordingly forfeited the
right to do in this appeal. (See In re Taylor (2015) 60 Cal.4th
1019, 1039 [as applied constitutional challenge contemplates
analysis of facts and circumstances of a particular case]; People v.
11
Jeha (2010) 187 Cal.App.4th 1063, 1078 [court will exercise
discretion to consider substantive due process claim not raised in
the trial court if it involves only application of legal principles to
undisputed facts].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT