BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 6 6 8 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 (More) SB 668 (Hollingsworth) PageB 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 (More) SB 668 (Hollingsworth) PageC 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." (More) SB 668 (Hollingsworth) PageD 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]). (More) SB 668 (Hollingsworth) PageE 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. (More) SB 668 (Hollingsworth) PageF 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 (More) SB 668 (Hollingsworth) PageG 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).) (More) SB 668 (Hollingsworth) PageH 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). (More) SB 668 (Hollingsworth) PageI 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 (More) SB 668 (Hollingsworth) PageJ 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: (More) --------------------------- <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.) (More) SB 668 (Hollingsworth) PageL 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 SB 668 (Hollingsworth) PageM (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). SB 668 (Hollingsworth) PageN