BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  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.  ›Penal 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.  ›Penal 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 








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            sentencing that court found that the defendant committed the 
            offense as a result of sexual compulsion or for purposes of 
            sexual gratification.  ›Penal 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.  ›Penal 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).  ›Penal 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.  ›Penal 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 ›DOJ] to 
            consider adjudicated or stipulated hearsay facts of 
            out-of-state sex offenders.  Senate Bill 622 allows the ›DOJ] 
            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.  ›Penal Code Section 290(c).]  

          According to the fact sheet provided by the author of this bill, 
            it is the Department of Justice (DOJ) who "assess›es] the 








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            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.  ›Id. 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.  ›People 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.  ›People v. Guerrero (1988) 44 Cal.3d 343, 
            355.]  When the record of conviction does not establish the 








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            facts underlying the offense, the court must presume the 
            conviction was for the least offense punishable under the 
            statute defining the offense.  ›Id. 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." ›People 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."  
            ›People 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.  ›People 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.  ›People 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.









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           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.  ›In 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.  ›See 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 








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            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.  
            ›Penal Code Section 290.008(b).]

           7)Arguments in Support :  According to the  Attorney General's 
            Office  (the sponsor of this bill), "›l]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 








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          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