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The California Supreme Court on Tuesday seemed satisfied that the forced registration of nonviolent sex offenders falls far short of violating the Eighth Amendment right to freedom from cruel and unusual punishment. The case had been brought by Leon Casey Alva, a Los Angeles County man convicted of possession of child pornography in 1999, but never charged with any violent crimes. He was placed on 36 months of probation, ordered to pay a $1,250 fine, and had to register as a sex offender under Penal Code Section 290. It was one of several arguments heard Tuesday by the California Supreme Court, sitting in Los Angeles. The justices also seem ready to uphold a ban on pets instituted by a Palm Springs homeowners association. Los Angeles solo practitioner Steven Flowers, who represented Alva, told the court Tuesday that sex offender registration violates the rights of defendants, such as his client, because they are accused of victimless crimes. “Mere possession [of child pornography] does not necessarily make one the kind of offender that 290 is aimed at,” Flowers argued. “Anything,” he continued, “that limits a citizen in any way that is beyond what the government needs is punishment.” That view didn’t seem to sit well with Justice Marvin Baxter, who said that the Legislature has “substantial authority” to pass laws aimed at protecting children and taking the profit out of the child pornography industry. “Why shouldn’t a person convicted under this statute be subject to registration?” he asked. Because, Flowers responded, the law requires the registration of people who possess child porn but have never done anything to merit harsher charges. “That’s kind of like possessing drugs,” Baxter said. “You can possess drugs without the intent to use them” and still be charged. Several of the justices wanted to know the importance of 1993′s Austin v. United States, 509 U.S. 602, in which the U.S. Supreme Court held that a drug-related forfeiture was punishment within the excessive fines clause of the Eighth Amendment. Baxter asked L.A.-based Deputy Attorney General Candice Horikawa why the nation’s highest court would want a stricter law for fines and not for sex offender registration. Horikawa argued that the state’s sex offender registration is a deterrent, not a punishment. She also argued that she felt the Austin case was not applicable and was limited to the context of excessive fines. Justice Joyce Kennard, who had touched on the issues raised by Austin in a separate ruling issued in 1999, said she didn’t think Horikawa’s interpretation was a “fair reading” of Austin. She said she felt the court had not limited itself to excessive fines. Kennard later asked Flowers what test he thought was applicable in determining whether sex offender registration constituted cruel and unusual punishment. “What is your response to Austin?” she asked. “To me, that is a critical part of the argument here.” The case is In re Alva, S098928. BUT GOLDFISH DON’T BARK In a second case Tuesday, the justices appeared less than sympathetic to a veterinarian fighting a pet ban at her 24-unit Palm Springs condominium complex. Paula Terifaj moved into the unit in 1995 despite being verbally warned that pets weren’t allowed. She contends that the ban violates her right to own pets and the freedom to use her property as she wishes. She currently lives at the complex with two dogs. The justices took note of the fact that Terifaj had been given “constructive notice” of the ban upon her purchase, and they seemed loathe to prohibit homeowners’ associations from enforcing or amending their bylaws. Justice Baxter, however, took time to toy with the lawyer for the homeowners association. “What if we were talking about goldfish?” he asked — which obviously wouldn’t bother neighbors or cause insurance problems. Riverside, Calif., lawyer Peter Racobs said associations couldn’t favor one kind of pet over another without getting into a problematic case-by-case analysis. Besides, he said, “What you characterize as a goldfish could be … a 500-gallon aquarium.” If that aquarium broke, it would certainly cause his neighbors problems, he said, even though the goldfish couldn’t bark. Brea, Calif., lawyer Russell Nowell, who represented Terifaj, argued that the pet ban was so extensive that it would prohibit homeowners from renting to or entertaining people with guide dogs. Two men with guide dogs attended Tuesday’s arguments, only to hear Justice Kennard suggest that the issue of service dogs wasn’t before the court because Terifaj had never tried to test the ban by inviting blind friends to visit. The case is Villa de Las Palmas Homeowners Association v. Terifaj, S109123.

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