BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 668 (Hollingsworth)                                      
          As Amended April 14, 2009 
          Hearing date:  April 28, 2009
          Penal Code
          AA:br


                              SEX OFFENDER REGISTRATION  :

                                      PENALTIES  


                                       HISTORY

          Source:  San Diego County District Attorney's Office

          Prior Legislation: SB 501 (Hollingsworth) - 2007; failed  
          passage, Senate Public Safety
                       AB 2527 (Frommer) - Ch. 429, Stats. 2004

          Support: California District Attorneys Association; Association  
                   for Los Angeles Deputy Sheriffs; Riverside Sheriffs'  
                   Association; Los Angeles County District Attorney's  
                   Office; Riverside County District Attorney's Office;  
                   Murrieta Police Department; City of Hemet; City of  
                   Menifee; City of Wildomar; several individuals

          Opposition:Taxpayers for Improving Public Safety; American Civil  
          Liberties Union


                                         KEY ISSUE
           




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                                                     SB 668 (Hollingsworth)
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          SHOULD existing law PROVIDE that any person who is required to  
          register as a sex offender and 1) fails to provide information  
          required on registration and re-registration forms of the  
          Department of Justice, or 2) provides false information, be  
          subject to an alternate felony-misdemeanor, depending upon  
          whether the crime for which they are required to register as a  
          sex offender is a misdemeanor or a felony, AS SPECIFIED?


                                       PURPOSE


          The purpose of this bill is to provide that any person who is  
          required to register as a sex offender and 1) fails to provide  
          information required on registration and re-registration forms  
          of the Department of Justice, or 2) provides false information,  
          is subject to an alternate felony-misdemeanor, depending upon  
          whether the crime for which they are required to register as a  
          sex offender is a misdemeanor or a felony.

           Current law  generally requires persons convicted of enumerated  
          sex offenses to register within five working days of coming into  
          a city or county, with specified law enforcement officials in  
          the city, county or city and county where he or she is  



















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          domiciled, as specified.<1>  (Penal Code  290.)  Registration  
          generally must be updated annually, within five working days of  
          a registrant's birthday.  (Penal Code  290.012 (a).)  In some  
          instances, registration must be updated once every 30 or 90  
          days, as specified.  (Penal Code  290.011, 290.012.)

           Current law  requires registrants to provide the following  
          information when they register or reregister:

                 A statement in writing signed by the person, giving  
               information as shall be required by the Department of  
               Justice and giving the name and address of the person's  
               employer, and the address of the person's place of  
               employment if that is different from the employer's main  
               address;
                 The fingerprints and a current photograph of the person  
               taken by the registering official;
                 The license plate number of any vehicle owned by,  
               regularly driven by, or registered in the name of the  
               person;
                 Notice to the person that, in addition to other  
               specified requirements, he or she may have a duty to  
             --------------------------
          <1>  Penal Code Section 290 (b) provides:  "Every person  
          described in subdivision (c) for the rest of his or her life  
          while residing in, or, if he or she has no residence, while  
          located within California, or while attending school or working  
          in California, as described in Section 290.002 and 290.01, shall  
          be required to register with the chief of police of the city in  
          which he or she is residing, or if he or she has no residence,  
          is located, or the sheriff of the county if he or she is  
          residing, or if he or she has no residence, is located, in an  
          unincorporated area or city that has no police department, and,  
          additionally, with the chief of police of a campus of the  
          University of California, the California State University, or  
          community college if he or she is residing, or if he or she has  
          no residence, is located upon the campus or in any of its  
          facilities, within five working days of coming into, or changing  
          his or her residence or location within, any city, county, or  
          city and county, or campus in which he or she temporarily  
          resides, or, if he or she has no residence, is located."



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               register in any other state where he or she may relocate;  
               and
                 Copies of adequate proof of residence, as specified.   
               (Penal Code  290.015.)

           Current law  provides that it is a crime, punishable as  
          specified, for any person who is required to register to  
          willfully violate any requirement of this section.  (Penal Code  
           290.018.)  Specifically, current statute includes the  
          following provisions:

                  Misdemeanor underlying sex crime  :  Any person who is  
               required to register based on a misdemeanor conviction or  
               juvenile adjudication who willfully violates any  
               requirement of the Act is guilty of a misdemeanor  
               punishable by imprisonment in a county jail not exceeding  
               one year.  (Penal Code  290.018 (a).)

                  Felony underlying sex crime  :  Except as provided,<2> any  
               person who is required to register under the Act based on a  
               felony conviction or juvenile adjudication who willfully  
               violates any requirement of the Act or who has a prior  
               conviction or juvenile adjudication for the offense of  
               failing to register under the Act and who subsequently and  
               willfully violates any requirement of the Act is guilty of  
               a felony and shall be punished by imprisonment in the state  
               prison for 16 months, or 2 or 3 years.  (Penal Code   
             --------------------------
          <2>  The exceptions are:  if the person has been adjudicated a  
          sexually violent predator, as specified, and they fail to verify  
          registration every 90 days, the penalty is a wobbler, punished  
          by imprisonment in the state prison or jail, as specified (subd.  
          [f]); any person who fails to provide proof of residence as  
          specified, regardless of the offense upon which the duty to  
          register is based, is guilty of a misdemeanor, as specified  
          (subd. [h]); and, in addition to any other penalty imposed under  
          this section, the failure to provide information required on  
          registration and reregistration forms of the Department of  
          Justice, or the provision of false information, is a crime  
          punishable by imprisonment in a county jail for a period not  
          exceeding one year [subd. [j]).



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               290.018 (b).)

                  Mentally disordered sex offenders  :  Any person  
               determined to be a mentally disordered sex offender or who  
               has been found guilty in the guilt phase of trial for a  
               registerable offense, but who has been found not guilty by  
               reason of insanity in the sanity phase of the trial, or who  
               has had a petition sustained in a juvenile adjudication for  
               a registerable offense, but who has been found not guilty  
               by reason of insanity, who willfully violates any  
               requirement of the Act is guilty of a misdemeanor  
               punishable by jail, as specified.  For any second or  
               subsequent willful violation of any registration  
               requirement, the person is guilty of a felony, punishable  
               as specified.  (Penal Code  290.018 (d).)

                  Transient registrants  :  Transient registrants who  
               willfully fail to comply with the requirement of  
               registering no less than every 30 days is guilty of a  
               misdemeanor, punishably by jail for at least 30 days, but  
               not exceeding six months.<3>  "A person who willfully fails  
               to comply with the requirement that he or she reregister no  
               less than every 30 days shall not be charged with this  
               violation more often than once for a failure to register in  
               any period of 90 days.  Any person who willfully commits a  
               third or subsequent violation of the (transient  
               registration requirements) shall be punished (based on  
               their underlying offense, as described above).  (Penal Code  
                290.018 (g).)

                  Subdivision amended by this bill:   "In addition to any  
               other penalty imposed under this section, the failure to  
               provide information required on registration and  
               reregistration forms of the Department of Justice, or the  
               provision of false information, is a crime punishable by  
               imprisonment in a county jail for a period not exceeding  
               one year."  (Penal Code  290.018 (j).)


          ---------------------------
          <3>  Registrants who are sexually violent predators are  
          expressly excepted from this provision.



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           This bill  would revise subdivision (j), restated immediately  
          above, to provide that the "failure to provide information  
          required on registration and reregistration forms of the  
          Department of Justice, or the provision of false information, is  
          a crime punishable by imprisonment in a county jail for a period  
          not exceeding one year, or by imprisonment in the state prison,  
          as follows:



              (1)  Any person required to register under the Act  
                based on a misdemeanor conviction or juvenile  
                adjudication who violates this subdivision is  
                guilty of a misdemeanor punishable by imprisonment  
                in a county jail for a period not exceeding one  
                year.



              (2)  Any person required to register under the Act  
                based on a felony conviction or juvenile  
                adjudication who violates this subdivision is  
                guilty of a felony punishable by imprisonment in  
                state prison for 16 months, or 2 or 3 years."

              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  







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          incarceration.<4>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <4>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<5>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  would appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Stated Need for This Bill  
          ---------------------------
          <5>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          The author states:

            California requires those convicted of specified sex  
            offenses to register with local law enforcement for  
            life.  The purpose of sex offender registration is to  
            assure that these offenders are available for police  
            surveillance at all times because the Legislature has  
            deemed them likely to commit similar offenses in the  
            future.  Registered sex offenders are required to  
            update their information annually, within five working  
            days of their birthday.  Some sex offenders must update  
            more often: transients must update every 30 days, and  
            sexually violent predators, every 90 days.  Currently,  
            if a registrant provides false information on his  
            registration form, the registrant is subject to a  
            misdemeanor under Penal Code Section 290.018 (j),  
            regardless of whether his underlying registration crime  
            is a misdemeanor or felony.
            
            In October 2006, a former Sexually Violent Predator  
            (SVP) named Matt Lyon Williams was released  
            unconditionally in Lakeside, an unincorporated  
            community in East San Diego County.  He registered as a  
            transient and stated he had no automobile.  His case  
            revealed serious weaknesses in the sex offender laws  
            related to providing truthful information when  
            registering.  Authorities re-arrested Williams after  
            discovering he had a vehicle and a home residence.  The  
            state must send a clear message to registrants that  
            California takes its registration requirements very  
            seriously.  It is our aim to make offenders think twice  
            before providing false information when completing  
            their registration forms.  (emphasis in original.)

          2.  What This Bill Would Do
           

          This bill would provide that any person who is required to  
          register as a sex offender who 1) fails to provide information  




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          required on registration and reregistration forms of DOJ, or 2)  
          provides false information, is subject to a wobbler, depending  
          upon whether the crime for which they are required to register  
          as a sex offender is a misdemeanor or a felony.  In some  
          instances, this bill would increase a current misdemeanor  
          penalty to a felony.

          3.  History of Subdivision (j) - Provision This Bill Would Amend;  
          Potential Clarification
          
          The penalty provision this bill would amend, subdivision (j) of  
          Penal Code Section 290.018, was enacted into the law in 2004 by  
          AB 2527 (Frommer).  That bill, sponsored jointly by the  
          Department of Justice and the California District Attorneys  
          Association, was largely in response to an appellate court case  
          concerning the application of registration requirements and  
          penalties on homeless sex offenders.<6>

          The bill also contained what now is subdivision (j) to Penal  
          Code Section 290.018.  As explained in the following published  
          court opinion, that provision was added at the request of the  
          Department of Justice as part of what was regarded as clean-up  
          to the statute.  Prior to its passage, the language in AB 2527  
          was amended to include the phrase, "In addition to any other  
          penalty imposed under this subdivision."  This phrase was  
          inserted to clarify that this provision was not intended to  
          alter or affect any existing applicable punishments, and remains  
          in the law today.



          In 2007, the effect of this subdivision on other registration  
          penalty provisions was addressed in People v. Gonzalez (2007)  
          149 Cal.App.4th 304, where the court rejected a defendant's  
          argument that the misdemeanor in the current subdivision (j)  
          essentially converted a felony into a misdemeanor.  The court  
          explained:






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          ---------------------------
          <6>  People v. North (2003) 112 Cal.App.4th 621.









              (Section 290.0018 [b]) provides that failure by a sex  
              offender registrant to notify authorities of a change  
              of address constitutes a felony if the underlying  
              offense requiring registration is a felony.   
              (Subdivision [j]) establishes the misdemeanor of  
              providing false information on a registration form  
              and requires additional punishment for that  
              misdemeanor.  Gonzalez makes the novel claim that the  
              reference to ([j]) in ([b]) converts ([b]) into a  
              "wobbler" statute because ([j]) pertains to a  
              misdemeanor.  Based on this claim, Gonzalez contends  
              that the trial court erred by failing to exercise its  
              discretion to impose felony or misdemeanor  
              punishment.  We disagree.  The reference to ([j]) in  
              ([b]) appears misplaced and, perhaps, confusing, but  
              it does not convert ([b]) into a statute that gives  
              the court discretion to impose either felony or  
              misdemeanor punishment for a registration violation  
              when registration was required as the result of a  
              felony conviction.

              Upon changing address or location, a sex offender  
              registrant must inform the law enforcement agency  
              where the registrant previously resided of his or her  
              new address or location.  A violation of the statute  
              can be either a misdemeanor or a felony depending on  
              whether the registrant's underlying sex offense was a  
              felony or misdemeanor.  . . .  (Section 290.018 [b])  
              is a mandatory sentencing provision that requires the  
              imposition of a felony sentence whenever a person is  
              required to register based on an underlying felony  
              sex offense.  
               
              Gonzalez's second . . . conviction was a felony.   
              Therefore, his current violation<7> . . . was  
              properly charged as a felony, and requires a felony  
              sentence pursuant to (Section 290.018 (b).)  The  

              ----------------------
          <7>  The defendant was charged with failure to file a change of  
          address (current Penal Code  290.012.)



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              reference to (subdivision [j]) in (subdivision [b])  
              does not affect this result by giving the court  
              discretion to impose a misdemeanor punishment.

               The only reasonable interpretation of the language . . .  
              contained in (subdivision ([b]) is that a sentence for  
              the misdemeanor must be added to the felony sentence  
              otherwise required by (subdivision [b]).  The words of a  
                                   statute must be read in context consistently with their  
              statutory purpose, and parts of a statute must be  
              construed harmoniously. . . .
               
              The legislative intent in adding (subdivision [j]) in  
              2005 was to create a substantive crime, not to  
              fundamentally alter (subdivision [b]).  (Subdivision  
              [j]) was enacted because "[t]he Department of Justice  
              indicates it has seen a recurring problem in how to  
              charge registrants who either give false information  
              on a registration form or omit required information,  
              and that some courts have rejected these charges  
              because the statute does not specifically recite  
              these violations."  (Sen. Com. on Public Safety,  
              Analysis of Assem. Bill No. 2527 (2003-2004 Reg.  
              Sess.) June 15, 2004.)

              While the legislative drafting might have been  
              better, Gonzalez's interpretation of (subdivision  
              [b]) is not plausible.  (Subdivision [b]) is a  
              critical element in the Section 290 statutory scheme  
              whose manifest purpose is to require a felony  
              sentence for a registration violation when the  
              registration requirement was imposed as the result of  
              the commission of a felony.  Gonzalez's position  
              would eviscerate subdivision ([b]) by allowing a  
              court to sentence a registration violation as a  
              misdemeanor in every case where the registration  
              requirement was imposed as the result of an  
              underlying felony conviction.  "We do not abandon our  
              common sense when we become judges."  (Subdivision  
              [b]) provides exclusively for felony punishment and  












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              (subdivision [j]) provides exclusively for  
              misdemeanor punishment.  Neither gives the trial  
              court discretion to treat any registration violation  
              as either a felony or misdemeanor.<8>

          The Gonzalez case thus clarifies that subdivision (j) is in  
          addition to any other penalties applicable to a registrant.  To  
          the extent that subdivision (j) as currently written adds only  
          confusion to the law which the author and sponsor intend to  
          resolve, the author and/or members of the Committee may wish to  
          consider simply deleting this subdivision.

          GIVEN THE CONFUSION SURROUNDING ITS APPLICATION AND ITS ORIGINAL  
          INTENT, SHOULD SUBDIVISION (J) SIMPLY BE REPEALED?

          In the alternative, the author may wish to consider revising  
          this bill to amend subdivision (j) by adding the following  
          underlined language, again to clarify its application:

              (j)  In addition to any other penalty imposed under  
              this section, the failure to provide information  
              required on registration and reregistration forms of  
              the Department of Justice, or the provision of false  
              information, is a crime punishable by imprisonment in  
              a county jail for a period not exceeding one year.   
               Nothing in this subdivision shall be construed to  
              limit or prevent prosecution under any applicable  
              provision of law.
                
          SHOULD THIS CLARIFICATION TO SUBDIVISION (J) BE MADE?
           

                                    ***************





          ---------------------------
          <8>  People v. Gonzalez, supra, (citations omitted; emphasis  
          added; code section references updated to reflect current  
          statute).











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