BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY

                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 622 (Corbett)                                            
          As Introduced February 18, 2011 
          Hearing date:  March 29, 2011
          Penal Code
          AA:dl

                              SEX OFFENDER REGISTRATION:

                               OUT-OF-STATE OFFENDERS  


                                       HISTORY

          Source:  Attorney General's Office

          Prior Legislation: None

          Support: Peace Officers Research Association of California; 
                   California State Sheriffs' Association; California 
                   Probation Parole and Correctional Association; 
                   California Police Chiefs Association; Crime Victims 
                   United of California; California District Attorneys 
                   Association; Chief Probation Officers of California

          Opposition:California Public Defenders Association
           
                                           
                                     KEY ISSUES
           
          SHOULD CALIFORNIA SEX OFFENDER LAW BE CLARIFIED TO PROVIDE THAT 
          REGISTRATION FOR AN OUT-OF-STATE CONVICTION IS BASED ON THE 
          ELEMENTS OF THE CONVICTION OFFENSE OR PROVEN OR STIPULATED FACTS 




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          IN THE RECORD OF CONVICTION?

          SHOULD THE SEX OFFENDER REGISTRATION STATUTE BE AMENDED TO 
          REQUIRE REGISTRATION IN CALIFORNIA IF THE PERSON COMMITTED AN 
          OFFENSE THAT REQUIRES REGISTRATION IN THE STATE OF CONVICTION, 
          INSTEAD OF REQUIRING REGISTRATION IN CALIFORNIA WHEN THE PERSON 
          HAS TO REGISTER IN THE STATE OF CONVICTION?
           

                                       PURPOSE

          The purposes of this bill are to 1) clarify that sex offender 
          registration in California for an out-of-state conviction is 
          based on the elements of the conviction offense or proven or 
          stipulated facts in the record of conviction; and 2) require sex 
          offender registration in California if a person committed an 
          offense that requires registration in the state of conviction, 
          instead of requiring California registration when the person has 
          to register in the state of conviction.

           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 statute  further provides that the following persons are 
          required to register as a sex offender under California law:

                 Any "person who, since July 1, 1944, has been, or is 
               hereafter convicted in any other court, including any 
               state, federal, or military court, of any offense that, if 
               committed or attempted in this state, would have been 
               punishable as one or more of the offenses described in 
               subdivision (c) of Section 290, including offenses in which 
               the person was a principal," as specified;
                 "Any person ordered by any other court, including any 
               state, federal, or military court, to register as a sex 
               offender for any offense, if the court found at the time of 
               conviction or sentencing that the person committed the 
               offense as a result of sexual compulsion or for purposes of 
               sexual gratification."
             --------------------------
          <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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                 Except as specified, "any person who would be required 
               to register while residing in the state of conviction for a 
               sex offense committed in that state."   (Penal Code  
               290.005.)  

           Recent case law,  In Re Rodden (2010 3rd Dist.) 186 Cal.App.4th 
          24, construed statutory language to provide that "an 
          out-of-state conviction requires a defendant to register as a 
          sex offender in California only when the least adjudicated 
          elements of the offense satisfy all of the elements of a crime 
          enumerated in subdivision (c) of section 290 or when the foreign 
          jurisdiction required the defendant to register as a sex 
          offender."  (Id. at 28.)

           This bill  would revise and clarify, as indicated in italics, 
          that California's mandatory sex offender registration laws apply 
          to persons convicted in other jurisdictions for any offense 
          that, if committed or attempted in California, based on the 
          elements of the conviction offense or proven or stipulated facts 
          in the record of conviction, would be punishable in California 
          as an offense requiring mandatory sex offender registration 
          (change in subdivisions (a) and (d) of section 290.005).

           Current law  requires sex offender registration, except as 
          specified, for "any person who would be required to register 
          while residing in the state of conviction for a sex offense 
          committed in that state."  (Penal Code  290.005(c).)
           
          This bill  would amend this subdivision to instead require sex 
          offender registration for persons who, except as specified, were 
          convicted of a statutory offense described as a sex offense in 
          the state of conviction for which sex offender registration is 
          required.  

            This bill  additionally includes the following uncodified 
          legislative findings and declarations:

               The Legislature finds and declares that it intends by 
               this legislation to address the holding of In re 
               Rodden (2010) 186 Cal.App.4th 24. This act is 




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               necessary to clarify the law on sex offender 
               registration of out-of-state sex offenders. There is 
               an immediate need for an amendment clarifying that the 
               statute permits consideration of adjudicated or 
               stipulated nonhearsay facts on the record of 
               out-of-state, federal, or military convictions to 
               determine whether the offense would have been 
               punishable as a mandatory registerable offense under 
               California law. Without this amendment to the statute, 
               many high-risk sex offenders would not be required to 
               register as sex offenders under the court's holding in 
               In re Rodden.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  




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          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  appears, in part, to aggravate the prison overcrowding 
          crisis described above.<2>


                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               Last year, the Third District Court of Appeal held, in 
               In re Rodden (2010) 186 Cal.App.4th 24, that DOJ could 
               only consider the least adjudicated elements of an 
               out-of-state conviction in order to determine whether 
               a sex offender is required to register in California.  
               In other words, if a person committed a forcible rape 
               in another state, but the other state's law did not 
               require proof that force was used in the crime, the 
               person would not be required to register as a sex 
               offender in California, because such a crime 
               (equivalent to sexual battery in California) is not 
               subject to registration under California law. 

               As a result, many out-of-state sex offenders are not 
               required to register in California, even in instances 
               where the same underlying facts - if proven in court - 
               would have required registration in California.  Since 
               the Rodden opinion was issued on June 29, 2010, DOJ 
               has had to terminate the registration of many 
               dangerous sex offenders, in order to comply with the 
               decision.

          2.  What This Bill Would Do


          ---------------------------
          <2>   See Comment 6.



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          This bill would do two things:  first, it would clarify the test 
          for determining whether a person convicted of a criminal offense 
          in another state or jurisdiction is required to register as a 
          sex offender in California; and second, it would modify 
          statutory language describing how an out-of-state registration 
          obligation triggers the obligation to register in California.

          With respect to the test for determining whether a person 
          convicted of a criminal offense somewhere else has to register 
          in California, this bill clarifies the determination is based on 
          the elements of the conviction offense or proven or stipulated 
          facts in the record of conviction.  The Attorney General's 
          office advises Committee staff that, until the Rodden decision, 
          this was the test employed by the department, and is consistent 
          with the test applicable to sentencing laws.  (See Comment 4, 
          infra.) 

          The bill's second provision, which proposes to amend the 
          language in subdivision (c) of section 290.005, modifies how 
          out-of-state registration itself triggers a California 
          registration obligation.  As now drafted, current law generally 
          requires persons required to be registered in the state where 
          they were convicted to register in California if they come here 
          and are otherwise subject to the registration statute.  The 
          Attorney General's office notes that this language 
          unintentionally could allow a convicted sex offender to avoid 
          registration here if they don't have to register in another 
          state; for example, if another state didn't require registration 
          at the time of the person's conviction and did not make its 
          registration statutes retroactive.  The bill would modify this 
          language to link the registration requirement in California to 
          the offense committed by the person rather than the person, and 
          whether that offense is subject to mandatory registration in the 
          other state.

          3. In re Rodden  

          This bill is intended in part to address the holding of the 
          court in In Re Rodden (2010 3rd Dist.) 186 Cal.App.4th 24, which 




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          concluded that "an out-of-state conviction requires a defendant 
          to register as a sex offender in California only when the least 
          adjudicated elements of the offense satisfy all of the elements 
          of a crime enumerated in subdivision (c) of section 290 or when 
          the foreign jurisdiction required the defendant to register as a 
          sex offender."  (Id. at 28 (emphasis added.)  In Rodden, the 
          Third District Court of Appeals granted a petition for a writ of 
          habeas corpus in a case where, the appellate court found, the 
          trial court erred in determining that the elements of a Kentucky 
          conviction were equivalent to a crime in California requiring 
          sex offender registration.

          Rodden concerned a petitioner who was convicted in Kentucky for 
          that's state crime of "facilitating sodomy, first-degree."  A 
          post-plea probation report described the petitioner's live-in 
          boyfriend repeatedly molesting her seven and 11-year-old 
          daughters with the petitioner's knowledge.  The final judgment 
          in the Kentucky case noted that the petitioner "was fully 
          familiar with the factual content and conclusions contained in 
          (a written report of the presentence investigation and a 
          "comprehensive sex offender presentence evaluation . . ."), and 
          that neither the defendant nor the defendant's counsel wished to 
          controvert any factual data contained in either of the reports." 
           

          The Kentucky court did not require the petitioner to register as 
          a sex offender in that state.  However, when she moved to 
          California and her probation was transferred here, her 
          California probation officer told her she was required to 
          register as a sex offender under California law.  The petitioner 
          refused, and subsequently was prosecuted for failure to 
          register.

          In its analysis of California statute, the Rodden court surmised 
          that the standard applied in subdivision (d) of Penal Code 
          section 290.005, which pertains to foreign convictions not 
          subject to registration under California law,  also was intended 
          to apply to foreign convictions subject to registration under 






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          subdivision (a) of that section.<3>  The court concluded:
               If section 290.005 articulated more than one test for 
               an out-of-state conviction, the untenable result would 
               be that for foreign offenses of pimping, pandering, 
               sodomy, and oral copulation, the trial court would be 
               simultaneously allowed and disallowed from looking 
               beyond the least adjudicated elements of the 
               conviction. On questions of statutory interpretation, 
               "it is presumed the Legislature intended reasonable 
               results consistent with its expressed purpose, not 
               absurd consequences. (Hart v. Autowest Dodge (2007) 
               147 Cal.App.4th 1258, 1262, quoting Harris v. Capital 
               Growth Investors XIV (1991) 52 Cal.3d 1142, 
               1165-1166.)  Accordingly, we hold that section 290.005 
               requires the least adjudicated elements of the 
               out-of-state conviction to meet all of the statutory 
               requirements of a registerable offense in 
               California.<4>    

          This bill addresses the Rodden decision by clarifying California 
          statute with respect to out-of-state convictions by expressly 
          stating that the determination with respect to the out-of-state 
          conviction can be "based on the elements of the conviction 
          offense or proven or stipulated facts in the record of 
          conviction."

          4.  "Record of Conviction" Standard    

          Under this bill, the test for determining whether a foreign 
          conviction subjects an individual to sex offender registration 
          ---------------------------
          <3>   "Although the Attorney General seems to concede that 
          subdivision (d) of section 290.005 allows inquiry only into the 
          least adjudicated elements of the foreign conviction, the 
          Attorney General argues that subdivision (d) sheds no light on 
          the test for qualifying convictions specified in subdivision 
          (a). Not so. The Legislature would have supplied an unworkable 
          statute if it had required differing tests in subdivisions (a) 
          and (d) for determining whether out-of-state convictions are 
          registerable in California."  (Rodden at 14.)
          <4>   Rodden at 15.



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          in California would be "the elements of the conviction offense 
          or proven or stipulated facts in the record of conviction."  
          This test is consistent with how foreign convictions are 
          determined for purposes of sentencing.<5>  
                
          5.  Opposition

           The California Public Defenders Association, which opposes this 
          bill, states in part:

               SB 622 seeks to amend Section 290.005 of the  Penal 
               Code, relating to registration requirements for 
               out-of-state convictions, so as to contradict the 
               holding of the Court of Appeal in In re Rodden (2010) 
               186 Cal.App.4th 24.   Specifically, this bill would 
               provide that for persons convicted in any other court, 
               including any state, federal or military court, one 
               can look beyond the elements of the conviction offense 
               to the proven or stipulated facts in the records of 
               the conviction, to determine if registration is 
               required.

               Under Penal Code 290, mandatory registration statutes 
               are triggered by certain convictions or juvenile 
               adjudications, NOT by the underlying conduct of those 
               offenses per se.  In In re Rodden, the Attorney 
               General argued that for out of state convictions, the 
               facts underlying the out of state conviction should be 
               relied upon to determine who must register as a sex 
               offender in California.  

               . . .

               In California, section 290 requirements focus on the 
               specific conviction and the elements of the offense, 
               rather than the conduct underlying the conviction.  
               Therefore, "the least adjudicated elements of the 
               out-of-state crime for which the conviction was 
               secured must meet the definition of a section 290 


               ----------------------
          <5>   See People v. Guerrero (1988) 44 Cal.3d 343.



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               offense without resort to an examination of the facts 
               underlying the conviction."  Otherwise, registration 
               will be premised on one standard for in state 
               convictions, and another, less rigorous standard for 
               out of state convictions.  

               Essentially this legislation would "substitute a 
               wholly different inquiry for out-of-state sex 
               convictions than that provided for by statute" 
               relative to in state convictions.

               . . .

               Presently there are 90,000 registrants pursuant to 
               Penal Code 290 in California.  Our scarce resources 
               are being stretched as is to coordinate registration 
               and supervision of 290 registrants in the community.  

               The legislation is an unnecessary expansion of the 
               registration requirements, an expansion that has been 
               found by the reviewing court to be inappropriate under 
               the rules of statutory construction.  As well the 
               legislation sets the statute up for an equal 
               protection challenge; what can be the rationale for 
               applying one standard for registration relative to in 
               state convictions and another standard for out of 
               state convictions?

           6.   ROCA Issue  

          The author has agreed to amend the bill to not make the changes 
          it proposes to subdivision (c) of Penal Code section 290.005 in 
          order to address the Committee's ROCA policy.


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