BILL ANALYSIS Ó
SB 622
Page 1
Date of Hearing: June 21, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 622 (Corbett) - As Amended: April 7, 2011
As Proposed to be Amended in Committee
SUMMARY : Modifies the standard for determining whether a person
convicted of a sex offense in another jurisdiction is required
to register as a sex offender in California. Specifically, this
bill :
1)Allows the court to consider not only the elements of the
offense, but also facts admitted by the defendant or found
true by the trier of fact, or stipulated facts in the record
of military proceedings, to determine whether an out-of-state
prior sex offense triggers sex offender registration in
California.
2)Declares that the intent behind this bill is to address the
holding of In re Rodden (2010) 186 Cal.App.4th 24, which
restricted the test for determining whether an offense from
another jurisdiction triggers sex offender registration in
California to a comparison of the elements of the respective
offenses.
EXISTING LAW :
1)Enumerates certain crimes for which a person shall be required
to register as a sex offender. ÝPenal Code Section 290(c).]
2)Mandates sex offender registration if a person is convicted in
another jurisdiction of one of the enumerated sex crimes in
Penal Code Section 290(c) or an equivalent crime. ÝPenal Code
Section 290.005(a).]
3)Mandates sex offender registration if it is shown that an
out-of-state, federal, or military court ordered the defendant
to register as a sex offender and at the time of conviction or
sentencing that court found that the defendant committed the
offense as a result of sexual compulsion or for purposes of
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sexual gratification. ÝPenal Code Section 290.005(b).]
4)Requires sex offender registration if the court of another
state required the defendant to register as a sex offender
while he or she was residing in that state. ÝPenal Code
Section 290.005(c).]
5)Exempts a person convicted in another state of an offense
similar to enumerated California offenses and who is required
to register in that state from registering in California
unless the out-of-state offense contains all of the elements
of a registerable California offense listed in Penal Code
Section 290(c). ÝPenal Code Section 290.005(d).]
6)Requires a person who has been discharged or paroled from an
out-of-state facility that is equivalent to the Division of
Juvenile Justice, as a result of committing an offense which,
if committed or attempted in this state, would have been
punishable as one or more of enumerated sex offender
registration crimes, to register in California. ÝPenal Code
Section 290.008(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Senate Bill 622
clarifies that an out-of-state sex offender is required to
register with the California Department of Justice (DOJ) when
they move to California. There is a need for a technical
clarification of the law in order to allow the ÝDOJ] to
consider adjudicated or stipulated hearsay facts of
out-of-state sex offenders. Senate Bill 622 allows the ÝDOJ]
to resume its practice of reviewing these out-of-state
convictions in order to determine whether they are required to
register in California."
2)Background : A sex offender registration requirement is
imposed under Penal Code Section 290 based on "conviction" for
an enumerated offense. ÝPenal Code Section 290(c).]
According to the fact sheet provided by the author of this bill,
it is the Department of Justice (DOJ) who "assessÝes] the
convictions of out-of-state sex offenders in order to
determine whether they are required to register in
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California." Until recently, in order to make this
determination it was the practice of DOJ to review
"out-of-state convictions by looking to adjudicated, proven or
stipulated non-hearsay facts in the entire record, rather than
being limited to the least adjudicated elements of the
out-of-state conviction."
3)In re Rodden : In Rodden, supra, 186 Cal.App.4th 24, the Court
of Appeal considered whether the registration requirement
could be imposed for an out-of-state offense based on facts
presented in a probation report. (Id. at p. 28.) The court
found as a matter of statutory interpretation that Penal Code
Section 290 does not refer to conduct underlying a conviction
in determining who must register. Rather, registration is
predicated on conviction of specified offenses. ÝId. at p.
39; see also In re J.P. (2009) 170 Cal.App.4th 1292, 1299
("mandatory registration statutes themselves . . . are
triggered by certain convictions or juvenile adjudications,
and not by the underlying conduct of those offenses per se").]
Therefore, the court held that "an out-of-state conviction
requires a defendant to register in California only when the
least adjudicated elements of the offense satisfy all of the
elements a crime enumerated in subdivision (c) of section 290,
or when the foreign jurisdiction required the defendant to
register." (Rodden, supra, 186 Cal.App.4th at p. 28.)
4)Due Process Concerns : In a different setting, the California
Supreme Court has permitted reference to the facts underlying
an out-of-state prior conviction to determine whether it
qualifies as a strike prior. Whether a foreign conviction
qualifies as a prior serious felony conviction in California
may be determined by the court with reference to the entire
record of conviction. ÝPeople v. Myers (1993) 5 Cal.4th 1193,
1201.] This is the case even though the plain language of
Penal Code Section 667(a) refers only to the elements of the
foreign offense because the statutory scheme shows legislative
intent to apply the prior serious felony enhancement to the
underlying conduct. (Id. at p. 1201.)
The trial court may look to the entire record of conviction to
determine if a foreign prior qualifies as a serious felony,
but no further. ÝPeople v. Guerrero (1988) 44 Cal.3d 343,
355.] When the record of conviction does not establish the
facts underlying the offense, the court must presume the
conviction was for the least offense punishable under the
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statute defining the offense. ÝId. at pp. 354-355.] In
Guerrero, the high court declined to identify those matters
that are part of the record of conviction. (Id. at p. 356,
fn. 1.) But since then, the court has provided some guidance
in defining the record of conviction. In one case, the court
instructed that the "normal rules of hearsay generally apply
to evidence admitted as part of the record of conviction to
show the conduct underlying the conviction." ÝPeople v.
Woodell (1998) 17 Cal.4th 448, 458.] In another case, the
Court defined the scope of the record of conviction as
referring to "those record documents reliably reflecting the
facts of the offense for which the defendant was convicted."
ÝPeople v. Reed (1996) 13 Cal.4th 217, 223.] Moreover, the
Court has held the record of conviction does not include
events which occurred after the entry of the guilty plea or
verdict. ÝPeople v. Trujillo (2006) 40 Cal.4th 165, 179.]
Since the determination of whether a foreign sex conviction
triggers sex offender registration requirements in California
is made by the DOJ and not in open court as is the case with
foreign convictions to be used as serious or violent prior
conviction allegations, it is arguable that the expanded test
raises due process concerns. How does a potential sex
offender registrant know that the DOJ is limiting its inquiry
to relevant and admissible "facts"?
For example, the Supreme Court has held probation reports
prepared for sentencing are not part of the record of
conviction and therefore may not be used to determine whether
an offense is a serious felony. ÝPeople v. Trujillo (2006) 40
Cal.4th 165, 179.] And yet, in the Rodden case, the only
evidence of the facts underlying the Kentucky offense was
contained in a post-plea probation report which recounted
statements made by the defendant to police during their
initial investigation. (Rodden, supra, 186 Cal.App.4th at p.
29.) That was the document the Attorney General urged the
court to consider to determine whether the underlying conduct
of the out of state offense could support a California
conviction (Id. at p. 39); presumably, the document relied
upon by the DOJ when making its determination that the
out-of-state conviction subjected the defendant to sex
offender registration in California.
5)Equal Protection Concerns : In People v. Hofsheier (2006) 37
Cal.4th 1185, the California Supreme Court held that mandatory
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sex offender registration for a violation of oral copulation
with a minor was a violation of equal protection because an
individual convicted of unlawful sexual intercourse with a
minor is subject to registration only in the court's
discretion. There is no reason why the Legislature would
conclude that persons who are convicted of oral copulation
with adolescent 16 and 17 year olds, as opposed to those who
are convicted of voluntary sexual intercourse with those in
the same age group, constitute a class of particularly
incorrigible offenders who require lifetime surveillance as
sex offenders. The statutory distinction violates the equal
protection clauses of the federal and state constitutions.
(Id. at pp. 1206-1207.)
The proposed test allowing reference to the underlying conduct
of foreign convictions has potential equal protection
implications. For example, under this bill, a person who was
convicted of oral copulation with a person 17 years in age in
another state could be subject to mandatory registration
depending on the underlying facts, while a person convicted of
oral copulation with a person 17 years in age in California
would not be subject to mandatory registration, regardless of
the underlying facts. (Ibid; People v. Ranscht (2009) 173
Cal.App.4th 1369, 1375.) There would be no rational reason
for treating in-state and out-of-state sexual offenders
differently for purposes of registration requirements.
6)Different Treatment for Foreign Juvenile Adjudications :
Juvenile adjudications are not convictions. ÝIn re Joseph B.
(1983) 34 Cal.3d 952, 955.] Moreover, the Legislature has
carefully distinguished between offenses requiring sex
offender registration by adults and those requiring
registration by juveniles. ÝSee In re Derrick B. (2006) 39
Cal.4th 535.]
The treatment of out-of-state juvenile adjudications with regard
to the sex offender registration act is codified in Penal Code
Section 290.008. This bill does not amend that provision.
Therefore, for purposes of determining whether an out-of-state
offense juvenile adjudication will constitute a registerable
offense in California, the state will still be unable to look
beyond the elements of the offenses. Query whether the
standard for proof of foreign priors should be the same,
particularly in light of the fact that registration for
foreign juvenile adjudications also requires proof that the
person was discharged or paroled from a facility in another
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state that is equivalent to the Division of Juvenile Justice.
ÝPenal Code Section 290.008(b).]
7)Arguments in Support : According to the Attorney General's
Office (the sponsor of this bill), "Ýl]ast 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. As a result, many out-of-state sex offenders are
no longer required to register in California, even in
instances where the same underlying facts - if proven in court
- would have required registration in California. Without
this important legislation, offenders like Philip Garrido
could slip through the cracks and will, in many cases, be able
to avoid registration when moving to California. Since the
Rodden opinion was issued on 6-29-10, DOJ has had to terminate
the registration of many dangerous sex offenders in order to
comply with the decision."
8)Arguments in Opposition : According to the American Civil
Liberties Union , "Under existing law, out of state priors must
have the same elements as an offense for which registration is
required in California. This bill would additionally require
registration based on the proven or stipulated facts in the
record of conviction. Among other things, this new
requirement will make the process much more complicated - a
person won't just be able to look at the law of the two states
and know whether he has to register; instead, he'll have to
figure out what's in the record of conviction and what it
means. This only heightens the existing due process concerns
for out of state registrants especially if the Attorney
General is simply informing people they have to register based
on foreign convictions without some appropriate review
process."
9)Related Legislation : AB 883 (Cook), of the 2010-2011
Legislative Session, makes substantially the same changes. AB
883 has not been heard by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Department of Justice (Sponsor)
SB 622
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Alameda County District Attorney
California Coalition Against Sexual Assault
California District Attorneys Association
California National Organization for Women
California Probation Parole and Correctional Association
California Peace Officers' Association
Chief Probation Officers of California
California State Sheriffs' Association
Crime Victims United of California
Peace Officers Research Association of California
San Bernardino County Sheriff's Department
San Diego County Board of Supervisors
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744