BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 622
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          Date of Hearing:   August 17, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                    SB 622 (Corbett) - As Amended:  June 22, 2011

          Policy Committee:                             Public 
          SafetyVote:4-1

          Urgency:     No                   State Mandated Local Program: 
          Yes    Reimbursable:              No

           SUMMARY  

          This bill modifies the standard for determining whether a person 
          convicted of a sex offense in another state is required to 
          register as a sex offender in California. Specifically, this 
          bill:

          1)Requires registration as a sex offender not only when 
            conviction in another jurisdiction would have required 
            registration in California, but also based upon facts admitted 
            by the defendant or found true by the trier of fact, or 
            stipulated to in military proceedings, or when the elements of 
            the conviction contain all of the elements of a registerable 
            California offense. 

          2)Declares the intent of this bill is to address the holding of 
            In re Rodden (2010), 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.

           FISCAL EFFECT  

          1)Minor annual GF increase to the Department of Justice (DOJ) 
            for costs associated with reviewing out-of-state cases for 
            facts beyond the conviction offense. According to DOJ, the 
            unit responsible for reviewing these registration cases - as 
            many as 1,600 per year - would not be significantly impacted 
            by this bill.  

          2)Unknown minor annual GF costs to the extent increasing the 
            number of felony registrants results in additional state 








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            prison commitments for failure to comply with registration 
            requirements. For example, in 2009 and 2010, a total of 1,226 
            persons were committed to state prison for this reason. These 
            commitments are on a base of about 65,000 felony registrants, 
            however, so the increase based on the additional 100 
            registrants DOJ estimates will be affected by this bill is 
            likely to be negligible.   

          3)Ongoing minor nonreimbursable local law enforcement costs for 
            additional registration requirements and related procedures. 

           COMMENTS  

           1)Rationale  . The author's intent is to abrogate a 2010 Court of 
            Appeal ruling, In Re Rodden that held only the adjudicated 
            elements of an offense - not other elements of the offense 
            contained in the record, such as stipulated facts contained in 
            the record - satisfy the criteria to determine whether a 
            person who commits an offense in another jurisdiction should 
            be required to register as a sex offender in California.

            According to the author and sponsor, the DOJ, until the Rodden 
            holding, it was the practice of DOJ to review out-of-state 
            convictions to consider proven, adjudicated non-hearsay facts 
            on the record to determine the nature of out-of-state, federal 
            or military offenses. For example, if the charging language 
            included an element of the offense, such as victim's age or 
            type of conduct, and the defendant pled to, or was convicted 
            of that charge, that information could help clarify provisions 
            of the out-of-state statute applicable to the defendant. Many 
            out-of-state statutes include multiple offenses in a code 
            section, some of which are registerable in California and some 
            of which are not.  Existing law does not look beyond the 
            proven elements of the offense. 
              
            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 








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            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)In re Rodden  .  In Rodden, the Court of Appeal considered 
            whether sex offender registration requirement could be imposed 
            for an out-of-state offense based on facts presented in a 
            probation report. 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. 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."  

           3)Due Process Concerns  . Since the determination of whether an 
            out-of-state sex offense conviction triggers sex offender 
            registration requirements in California is made by DOJ and not 
            in open court - as is the case, for example, with out-of-state 
            convictions used as prior conviction allegations - this 
            proposal raises due process concerns. How does a potential sex 
            offender registrant know that the DOJ is limiting its inquiry 
            to relevant and admissible facts? How does a potential 
            registrant appeal or dispute the application of such facts, 
            other than filing a writ? 

           4)Opposition  . According to the ACLU, "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 








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            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."

           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081