BILL ANALYSIS Ó SB 622 Page 1 Date of Hearing: July 5, 2011 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 622 (Corbett) - As Amended: June 22, 2011 FOR VOTE ONLY 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 SB 622 Page 2 sentencing that court found that the defendant committed the offense as a result of sexual compulsion or for purposes of 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 California, 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 SB 622 Page 3 convictions of out-of-state sex offenders in order to determine whether they are required to register in 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 SB 622 Page 4 facts underlying the offense, the court must presume the conviction was for the least offense punishable under the 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. SB 622 Page 5 5)Equal Protection Concerns : In People v. Hofsheier (2006) 37 Cal.4th 1185, the California Supreme Court held that mandatory 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 SB 622 Page 6 foreign juvenile adjudications also requires proof that the person was discharged or paroled from a facility in another 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 SB 622 Page 7 California Department of Justice (Sponsor) 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 Los Angeles District Attorney's Office 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