BILL ANALYSIS Ó
AB 2008
Page A
Date of Hearing: March 29, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2008 (Wagner) - As Introduced February 16, 2016
SUMMARY: Specifies that law enforcement only has a duty to
inform an offender of his or her duty to register as a sex
offender when he or she is released from custody for the
underlying offense requiring registration. Specifically, this
bill: requires that the person be informed of his or her duty
to register only if the release, discharge, or parole, as
applicable, is related to a sentence imposed as the result of a
conviction for an offense for which the person is required to
register under the Sex Offender Registration Act (Act).
EXISTING LAW:
1)Specifies that any person who is released, discharged, or
paroled from a jail, state or federal prison, school, road
camp, or other institution where he or she was confined, who
is required to register pursuant to the Act, shall, prior to
discharge, parole, or release, be informed of his or her duty
to register under the Act by the official in charge of the
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place of confinement or hospital, and the official shall
require the person to read and sign any form that may be
required by the Department of Justice, stating that the duty
of the person to register under the Act has been explained to
the person. (Pen. Code, § 290.017, subd. (a).)
2)Specifies that the official in charge of the place of
confinement or hospital shall obtain the address where the
person expects to reside upon his or her discharge, parole, or
release and shall report the address to the Department of
Justice. The official shall at the same time forward a current
photograph of the person to the Department of Justice. (Pen.
Code, § 290.017, subd. (a).)
3)Requires that the official in charge of the place of
confinement or hospital shall give one copy of the form to the
person and shall send one copy to the Department of Justice
and one copy to the appropriate law enforcement agency or
agencies having jurisdiction over the place the person expects
to reside upon discharge, parole, or release. (Pen. Code, §
290.017, subd. (b).)
4)States that if the conviction that makes the person subject to
the Act is a felony conviction, the official in charge shall,
not later than 45 days prior to the scheduled release of the
person, send one copy to the appropriate law enforcement
agency or agencies having local jurisdiction where the person
expects to reside upon discharge, parole, or release; one copy
to the prosecuting agency that prosecuted the person; and one
copy to the Department of Justice. The official in charge of
the place of confinement or hospital shall retain one copy.
(Pen. Code, § 290.017, subd. (b).)
5)Provides any person who is required to register pursuant to
the Act and who is released on probation, shall, prior to
release or discharge, be informed of the duty to register
under the Act by the probation department, and a probation
officer shall require the person to read and sign any form
that may be required by the Department of Justice, stating
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that the duty of the person to register has been explained to
him or her. (Pen. Code, § 290.017, subd. (c).)
6)States that the probation officer shall obtain the address
where the person expects to reside upon release or discharge
and shall report within three days the address to the
Department of Justice. The probation officer shall give one
copy of the form to the person, send one copy to the
Department of Justice, and forward one copy to the appropriate
law enforcement agency or agencies having local jurisdiction
where the person expects to reside upon his or her discharge,
parole, or release. (Pen. Code, § 290.017, subd. (c).)
7)States that any person who is required to register pursuant to
the Act and who is granted conditional release without
supervised probation, or discharged upon payment of a fine,
shall, prior to release or discharge, be informed of the duty
to register under the Act in open court by the court in which
the person has been convicted, and the court shall require the
person to read and sign any form that may be required by the
Department of Justice, stating that the duty of the person to
register has been explained to him or her. If the court finds
that it is in the interest of the efficiency of the court, the
court may assign the bailiff to require the person to read and
sign forms under the Act. The court shall obtain the address
where the person expects to reside upon release or discharge
and shall report within three days the address to the
Department of Justice. The court shall give one copy of the
form to the person, send one copy to the Department of
Justice, and forward one copy to the appropriate law
enforcement agency or agencies having local jurisdiction where
the person expects to reside upon his or her discharge,
parole, or release. (Pen. Code, § 290.017, subd. (d).)
8)Requires persons convicted of specified sex offenses to
register for life, or reregister if the person has been
previously registered, upon release from incarceration,
placement, commitment, or release on probation. States that
the registration shall consist of all of the following (Pen.
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Code, § 290.015, subd. (a).):
a) A statement signed in writing by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
9)States every person who is required to register, as specified,
who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
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jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically
present 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 physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30 day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30 day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form.
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d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30 day period, he
or she does not need to report the new place or places
until the next required re-registration. (Pen. Code, §
290.011, subds. (a) to (d).)
10)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. (Pen. Code, § 290.018, subds. (a)&(b).)
11)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).)
12)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, two or three years. (Pen.
Code, § 290.018, subds. (a)&(b).)
13)Provides that the DOJ shall make available information
concerning persons who are required to register as a sex
offender to the public via an internet website. The DOJ shall
update the website on an ongoing basis. Victim information
shall be excluded from the website. (Pen. Code § 290.46.)
The information provided on the website is dependent upon what
offenses the person has been convicted of, but generally
includes identifying information and a photograph of the
registrant.
14)Generally prevents the use of the information on the website
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from being used in relation to the following areas: (Pen.
Code, § 290.46, subd. (l)(2).)
a) Health insurance;
b) Insurance;
c) Loans;
d) Credit;
e) Employment;
f) Education, scholarships, or fellowships;
g) Housing or accommodations; and
h) Benefits, privileges, or services provided by any
business establishment.
FISCAL EFFECT:
COMMENTS:
1)Author's Statement: According to the author, "Regardless of
their reason for their incarceration, defendants must be
re-noticed of their duty to re-register as a sex offender upon
immediate release from incarceration. This creates an
unnecessary administrative headache for law enforcement
officials who are required to re-notify offenders every time
they are released from custody. AB 2008 would simply require
that the defendant be informed of his or her duty to register
only if the release, discharge, or parole, is related to a
sentence imposed as the result of a conviction for an offense
for which the person is required to register as a sex
offender, ultimately relieving the unnecessary burden law
enforcement officials are now required to carry."
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2)Sex Offender Registration and the Megan's Law Website:
According to a 2014 report by the California Sex Offender
Management Board<1>, the intent of registration was to assist
law enforcement in tracking and monitoring sex offenders since
they were viewed as the group most likely to commit another
sex offense. It was thought that having their names and
addresses known to law enforcement and with the expansion of
community notification also available to the public would
dissuade them from committing a new offense, enable members of
the public to exercise caution around them, enable law
enforcement to monitor them and, if necessary, solve new sex
offense cases more readily. Although research suggests that
use of a registry may help law enforcement solve sex crimes
against children involving strangers more quickly, United
States DOJ statistics tell us that most crimes against
children (about 93%) are committed not by a stranger but by a
person known to the child and his or her family, usually an
acquaintance or family member.
Since 1947, earlier by far than any other state, California has
required "universal lifetime" registration for persons
convicted of most sex crimes. (Pen. Code, § 290.) Though every
other state has instituted some form of registration since
then, California is among only four states which require
lifetime registration for every convicted sex offender, no
matter the nature of the crime or the level of risk for
reoffending. Almost all other states use some version of a
"tiering" or "level" system which: 1. recognizes that not all
sex offenders are the same, 2. provides meaningful
distinctions between different types of offenders and 3.
requires registration at varying levels and for various
---------------------------
<1>
http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun
d%20Paper%20FINAL%20FINAL%204-2-14.pdf
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periods of time. There are nearly 100,000 registrants today
in California, a number accumulated over the past 66 years
since the Registry was created in 1947. In 2004 California
began to provide pictures and other identifying information on
the Megan's Law website for about 80% of registrants.
( www.meganslaw.ca.gov )
There are about 98,000 registered sex offenders on California's
registry. About 76,000 live in California communities and the
other 22,000 are currently in custody. Of these offenders, 80%
are posted on the state's Megan's Law web site with their full
address or ZIP Code and other information, depending upon the
offense they committed. About 20% are not posted or are
excluded from posting on the web site by law, again depending
on the conviction offense. Posting on the web site does not
take into account years in the community without reoffending,
the offender's risk level for committing a new sexual or
violent crime, or successful completion of treatment. About
one-third of registered offenders are considered "moderate to
high risk" while the remaining two-thirds are "moderate to low
risk" or "low risk." Local police departments and sheriff's
offices are charged with managing the registration process.
Registered sex offenders must re-register annually on their
birthdays as well as every time they have a change of address.
Transient sex offenders re-register every 30 days and
sexually violent predators every 90 days. Registration
information collected by law enforcement is sent to the
California Department of Justice (DOJ) and stored in the
California Sex and Arson Registry. If an offender's
information is posted online and he fails to register or
re-register on time, he will be shown as "in violation" on the
Megan's Law web site. When proof is provided by local law
enforcement to DOJ of a registrant's death, he or she is
removed from the registry. Every ten years since the Registry
was first established has been marked by a dramatic increase
in the number of registrants.
As noted above, the original goal of registration was to assist
law enforcement in tracking and monitoring sex offenders.
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Over time, registration was expanded to include community
notification and also began to encompass a wider variety of
crimes and behaviors. Due to these changes, research has
focused on exploring the changes in sex 4 CASOMB "Tiering
Background Paper" offender registration laws and this has
resulted in a constantly growing body of research that has
altered the perspective on sex offender registration. This
research has made it clear that:
The sexual recidivism rate of identified sex
offenders is lower than the recidivism rate of
individuals who have committed any other type of crime
except for murder.
Not all sex offenders are at equal risk to reoffend.
Low risk offenders reoffend at low rates, high risk
offenders at much higher rates.
It is possible to use well-researched actuarial risk
assessment instruments to assign offenders to groups
according to risk level. (i.e. Low, Medium, High.)
Risk of a new sex offense drops each year the
offender remains offense-free in the community.
Eventually, for many offenders, the risk becomes so low
as to be meaningless and the identification of these
individuals through a registry becomes unhelpful due to
the sheer numbers on the registry. Research has
identified differing time frames of decreased risk for
the various categories of offenders (i.e. low, medium,
high).
Research on both general and sexual offenders has
consistently indicated that focusing on higher risk
offenders delivers the greatest return on efforts to
reduce reoffending.
Completing a properly designed specialized sex offender
treatment program delivered within the context of effective
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supervision reduces recidivism risk even further. In
California, all registered sex offenders on parole or
probation are now required by state law to enter and complete
such a program.
1)People v. Toloy: In People v. Toloy (2015), Cal. App 4th
1116, the California Court of Appeal for the 6th Appellate
District affirmed a decision in which defendant Thomas Toloy
was convicted of failing to re-register as a sex offender
after he had been released from county jail after a 60 day
stint in custody. Mr. Toloy was not informed of his duty to
re-register at the time he was released from custody. Under
current law, any time a registrant is in custody for more than
30 days they have a duty to re-register their place of
residence with local law enforcement. In Mr. Toloy's case, he
returned to the residence he had lived in and been registered
at, prior to his incarceration for 60 days in the county jail.
The court ruled that Mr. Toloy had been notified of his duty
to re-register at the time he was initially registered as a
sex offender, years prior. Therefore, the court determined he
had actual notice of his duty to register. However the court
found that law enforcement failed in their duty to notify him
of his need to re-register the home he had previously
registered prior to his 60 day incarceration. However, the
court ruled that this duty by law enforcement was directory
and not mandatory, and therefore Mr. Toloy could not use the
failure of law enforcement to notify him as a defense.
Therefore, the court ruled that Mr. Toloy's conviction was
valid and they affirmed the lower court.
2)Argument in Support: According to the California State
Sheriffs' Association, "For unknown reasons, language that
specified that a person required to register as a sex offender
must be notified of his or her ongoing duty to register only
when released from custody for an offense requiring sex
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offender registration disappeared from the Penal Code. As
such, the statue has technically required every registerable
sex offender to be notified of the duty to register every
time he or she is released from custody regardless of whether
the current offense requires sex offender registration. This
inexplicable error has unnecessarily increased workload on the
part of custodial officers for no discernible benefit."
3)Argument in Opposition: According to the American Civil
Liberties Union, "The American Civil Liberties Union of
California regrets to inform you that we oppose AB 2008 which
would delete the requirement that law enforcement notify a
person of his or her duty to reregister under California's sex
offender law when released from custody after serving a
sentence of 30 days or more. Given that the law requires a
person to reregister even though his or her address remains
the same and that failure to comply with this duty can be
punished by up to lifetime imprisonment, we believe the
Legislature made the right choice in 2007 when it imposed the
requirement for law enforcement to tell people about the duty
to reregister when they leave custody.
"Under current California law, a person who is required to
register under Penal Code section 290 must reregister within
five working days of his or her release after serving time in
custody of 30 days or more, even if his or her residence has
not changed and the registration on file with law enforcement
is correct. (Penal Code sec. 290.015(a); see People v. Toloy
(2015) 239 Cal.App.4th 1116, 1119 [upholding conviction for
failure to register under 290.015(a) even though the
registration on file accurately reflected the defendant's
address].) To ensure that people understand their obligation
to reregister, Penal Code section 290.017(a) requires law
enforcement to inform a person of this duty on release from
custody. AB 2008 would delete that notice requirement.
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"The obligation to reregister upon release after serving 30
days or more in custody for any reason was added to Penal Code
section 290 in 2006 (SB 1128 Alquist). The sex offender
registry statute was reorganized the following year through SB
172 (Alquist) and that is when this specific notice
requirement was added to the statutory scheme. As the Court of
Appeals observed in People v. Toloy (2015) 239 Cal.App.4th at
p. 1121, this was a change from prior law which required
notice only on release after serving a sentence for a crime
that requires registration. The court explained:
'Section 290.017 was enacted in 2007. Before section
290.017's enactment, former section 290 required
notification when a person was released from custody only
after being "confined because of the commission' of an
offense requiring registration. (Former § 290, subd. (b),
italics added; Stats. 2006, ch. 538, § 500, p. 4368; Stats.
1979, ch. 944, § 8, p. 3255.)
"The court concluded that the Legislature intended to change
the notice requirement to apply every time a person leaves
custody after 30 days or more, in order to further the
objective of ensuring that people do in fact reregister. (Id.
at pp. 1121-22.) The court also observed the logic of this
choice:
"While one might hope that such notification would be
"unnecessary" since the section 290 registrant would be
aware of each and every aspect of his or her registration
obligations, a timely reminder of the precise nature of
those obligations is neither "superfluous" nor "confusing."
This is particularly true where the precise parameters of a
section 290 registrant's obligations may change over time,
as they did when section 290.015 was enacted. (Ibid.)
"The court in Toloy went on to hold that the requirement to
provide notice is 'directory rather than mandatory and therefore
did not provide a defense to defendant.' (Id. at p. 1119.) In
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other words, while the statute directs law enforcement to
provide this notice, failure to do so does not offer a defense
to the crime of failing to reregister.
"The Legislature made a wise decision in 2007 when it included
this notice provision. It is far from obvious or intuitive that
a person would need to reregister after serving 30 days or more
in custody, even if his or her residence has not changed and the
registration on file with law enforcement is accurate. The facts
of Toloy illustrate this point. While Mr. Toloy failed to
reregister on release, he returned to reside at the exact same
address as prior to his time in custody and his registration on
file with law enforcement was accurate. Moreover, he had met
with his parole officer and been equipped with a GPS tracking
device which he wore continuously until the time of his arrest.
Despite the fact that law enforcement knew his address and
actually knew where he was every minute of every day, he was
convicted for failing to reregister and sent to state prison for
32 months. Mr. Toloy was in some sense lucky: any failure to
comply with the sex offender registration law can be charged as
a felony and can be prosecuted under the Three Strikes Statute,
potentially resulting in lifetime imprisonment.
"If the Legislature thinks it is important for people to
undertake the administrative obligation to reregister upon
release after serving a sentence of 30 days or more-even when
law enforcement knows exactly where they are-then it seems
reasonable and fair to ask law enforcement to assume the minor
task of actually telling people this. If the Legislature doesn't
think this duty to reregister is important enough to warrant the
small effort of telling people about it when they leave custody,
than it should not be a felony that can result in lengthy state
prison sentences up to and including lifetime imprisonment."
4)Prior Legislation:
a) SB 172 (Alquist), Chapter 579, Statutes of 2007, made
technical and clarifying changes to the Sex Offender
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Punishment, Control and Containment Act of 2006.
Specifically, added the duty to notify offenders of their
duty to re-register every time they are released from
incarceration.
b) SB 1128 (Alquist), Chapter 337, Statutes of 2006,
created the "Sex Offender Punishment, Control and
Containment Act of 2006" which makes several changes to the
law relating to sex offenders. These included imposing a
duty on law enforcement to inform offenders of their need
to register as sex offenders.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Sheriffs' Association
Opposition
American Civil Liberties Union
California Public Defenders Association
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Legal Services for Prisoners with Children
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744