BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 756 (Price)
As Amended: March 25, 2011
Hearing date: May 3, 2011
Penal Code
AA:dl
REGISTERED SEX OFFENDERS
HISTORY
Source: Attorney General's Office
Prior Legislation: None
Support: San Luis Obisbo County District Attorney; City of Long
Beach; two individuals
Opposition:None Known
KEY ISSUES
SHOULD JURISDICTION FOR PROSECUTING A SEX OFFENDER REGISTRANT FOR
FAILING TO REGISTER BE CLARIFIED, AS SPECIFIED?
SHOULD THE DISTRICT ATTORNEY WHERE A SEX OFFENDER WAS SUPPOSED TO
REGISTER AFTER PAROLE OR PROBATION BE AUTHORIZED TO ISSUE AN ARREST
WARRANT FOR THAT PERSON, AS SPECIFIED?
SHOULD A SEX OFFENDER REGISTRANT BE REQUIRED TO PRESENT PROOF OF
RESIDENCE UPON REQUEST BY A LAW ENFORCEMENT AGENCY INVESTIGATING
COMPLIANCE WITH THE REQUIREMENTS OF THE REGISTRATION LAWS?
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PURPOSE
The purpose of this bill is to clarify jurisdiction for
prosecuting a sex offender registrant for failing to register,
as specified, authorize a district attorney in a jurisdiction
where a sex offender was supposed to register to issue an arrest
warrant, as specified, and require a sex offender registrant to
present proof of residence upon request by a law enforcement
agency investigating compliance with the requirements the
registration statute.
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
domiciled, as specified.<1> (Penal Code § 290.) Registration
generally must be updated annually, within five working days of
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<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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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 law requires persons required to register as sex
offenders to register, or reregister if the person has
previously registered, upon release from incarceration,
placement, commitment, or release on probation, as specified.
(Penal Code § 290.015.)
This bill would provide that if a person fails to register in
accordance with this provision after release, the district
attorney in the jurisdiction where the person was to be paroled
or to be on probation may request that a warrant be issued for
the person's arrest and shall have the authority to prosecute
that person for a registration violation, as specified.
This bill further would provide that if a person required to
register as a sex offender is not on parole or probation at the
time of release, the district attorney in the following
applicable jurisdiction shall have the authority to prosecute
that person for a registration violation:
If the person was previously registered, in the
jurisdiction in which the person last registered.
If there is no prior registration, but the person
indicated on the Department of Justice notice of sex
offender registration requirement form where he or she
expected to reside, in the jurisdiction where he or she
expected to reside.
If neither of the above applies, in the jurisdiction
where the offense subjecting the person to registration
pursuant to this Act was committed.
This bill further would require that the person "shall present
proof of residence upon request by a law enforcement agency
investigating compliance with the requirements of this Act," and
would provide that a violation of this requirement would be a
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misdemeanor.
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.
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 does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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1. Stated Need for This Bill
The author states:
Existing law provides that a transient sex offender
can be prosecuted in any jurisdiction in which he or
she is physically present for a failure to register
within 30 days. (Pen. Code, § 290.011, subd. (a).)
No such provision exists for the initial failure to
register upon release from custody for either
transient sex offenders or sex offenders who move into
a residence but never register, or who absconds after
initial registration. Nor does existing law provide
for the issuance of a warrant in any particular
jurisdiction when an offender who has never registered
in any California jurisdiction absconds after release
from custody. . . .
Further, existing law does not require sex offender
registrants to cooperate by providing proof of
residence during a check by law enforcement at their
residence. Although registrants must provide proof of
residence to the registering agency within 30 days of
registering (Pen. Code, § 290.015, subd. (a)(5).), the
statute does not state that they have to provide it
again unless they move. If officers arrive at the
registered address months or years after the initial
registration and attempt to verify that the offender
still lives there, the law does not require the
registrant to provide any proof he still resides at
that address.
2. What This Bill Would Do
Current law requires persons convicted of certain sex-related
offenses to register, and imposes criminal penalties -
misdemeanors or felonies, generally depending upon the
underlying offense - for persons who violate registration
requirements. This bill would clarify jurisdiction for
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prosecuting a registrant for failing to register as follows:
in the jurisdiction in which the person last registered
if the person was previously registered and no longer is on
parole or probation;
in the jurisdiction where he or she expected to reside,
if there is no prior registration, but the person indicated
on the Department of Justice notice of sex offender
registration requirement form where he or she expected to
reside;
in the jurisdiction where the sex offense was committed,
if neither of the above applies; and
in the jurisdiction where the person was to be paroled
or to be on probation.
This bill also would expressly authorize the district attorney
in the jurisdiction where the person was to be paroled or to be
on probation to request that a warrant be issued for the
person's arrest, and clarify that district attorney has the
authority to prosecute that person for a registration violation.
The bill finally would require that the person "shall present
proof of residence upon request by a law enforcement agency
investigating compliance with the requirements of this Act," and
would make a violation of this a misdemeanor.
This bill clarifies jurisdiction for prosecuting persons for
failure to register. Committee counsel is aware of no published
case law inconsistent with the clarification proposed by this
bill. In a 2004 case, the California Supreme Court noted that a
sex offender who failed to notify one county he was moving out
of the jurisdiction, and a second county that he had moved into
the jurisdiction, could be charged in either county - although
not separately punished for the two
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failures to notify.<2> The provisions relating to jurisdiction
in this bill are not inconsistent with this case.
3. Proof of Residency
This bill would require a sex offender registrant to present
proof of residence upon request by a law enforcement agency
investigating compliance with the requirements of the
registration laws. The bill is not clear as to whether it would
apply in any context - for example, if it would authorize law
enforcement to stop any registrant on the street without cause
to verify their residency. Committee members and the author may
wish to consider revising this provision to ensure it is applied
in an appropriate and constitutional manner.
SHOULD THE PROOF OF RESIDENCY PROVISION OF THIS BILL BE REVISED
AND TIGHTENED?
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<2> The Court explained: "We conclude that California
statutes permit these offenses to be joined together in a single
proceeding in either county. Defendant failed to report to law
enforcement agencies in two different counties, but that does
not mean that each omission must be tried in the county where
the agency is located. "When a public offense is committed in
part in one jurisdictional territory and in part in another, or
the acts or effects thereof constituting or requisite to the
consummation of the offense occur in two or more jurisdictional
territories, the jurisdiction of such offense is in any
competent court within either jurisdictional territory."
Although this statute speaks in terms of jurisdiction, it is
actually a venue statute. It "must be given a liberal
interpretation to permit trial in a county where only
preparatory acts have occurred ? ." The notification
requirements of both subdivisions (a) and (f) of section 290
were triggered by defendant's moving from Sacramento County to
El Dorado County. This single move necessarily involved
preparatory acts in both counties. Thus, either county would be
a proper venue in which to try both crimes. . . ." People v.
Britt (2004) 32 Cal.4th 944, 954-955 (citations omitted).)
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