BILL ANALYSIS                                                                                                                                                                                                    







                      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 
          ---------------------------
          <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?  

          ---------------------------
          <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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