Amended in Assembly April 25, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2569

Introduced by Assembly Member Melendez

February 19, 2016

An act to amend Section 290.46 of the Penal Code, relating to sex offenders.

LEGISLATIVE COUNSEL’S DIGEST

AB 2569, as amended, Melendez. Registered sex offenders.

Existing law requires the Department of Justice to make available specified information about registered sex offenders via an Internet Web site. Existing law authorizes an offender who has been convicted of the commission or attempted commission of felony sexual battery, misdemeanor child molestation, or other specified sexual begin delete offenses, end delete begin insert offenses end insert to apply to the department for exclusion from the Internet Web site. Existing law also authorizes an offender who has been convicted of the commission or attempted commission of an offense for which the offender is on probation at the time of his or her application or has successfully completed begin delete probation, end delete begin insert probation end insert to apply for exclusion from the Internet Web site if he or she submits a certified copy of an official court document, as specified, that clearly demonstrates that the offender was the victim’s parent, stepparent, sibling, or grandparent, and the crime did not involve specified sexual offenses.

begin delete

This bill would terminate the authorization for an offender who commits a specified sexual offense against a victim who is the child, stepchild, sibling, or grandchild of the offender from being eligible for exclusion from the Internet Web site.

end delete begin insert

This bill would require the Department of Justice Office of Victim Assistance, prior to the granting of an application for an exclusion, to speak to the victim to determine if granting the exclusion would be in the best interest of the victim. The bill would require that an offender who is on probation at the time of his or her application for an exclusion be on probation for at least one year prior to the granting of his or her exclusion.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 290.46 of the Penal Code is amended to
read:

290.46.  

(a) (1) On or before the dates specified in this section,
the Department of Justice shall make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in this
section. The department shall update the Internet Web site on an
ongoing basis. All information identifying the victim by name,
birth date, address, or relationship to the registrant shall be
excluded from the Internet Web site. The name or address of the
person’s employer and the listed person’s criminal history other
than the specific crimes for which the person is required to register
shall not be included on the Internet Web site. The Internet Web
site shall be translated into languages other than English as
determined by the department.

(2) (A) On or before July 1, 2010, the Department of Justice
shall make available to the public, via an Internet Web site as
specified in this section, as to any person described in subdivision
(b), (c), or (d), the following information:

(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.

(ii) The year he or she was released from incarceration for that
offense.

(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration
for any felony, that fact shall be noted on the Internet Web site.

However, no year of conviction shall be made available to the
public unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.

(B) (i) Any state facility that releases from incarceration a
person who was incarcerated because of a crime for which he or
she is required to register as a sex offender pursuant to Section
290 shall, within 30 days of release, provide the year of release
for his or her most recent offense requiring registration to the
Department of Justice in a manner and format approved by the
department.

(ii) Any state facility that releases a person who is required to
register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the
offense for which he or she is required to register shall, within 30
days of release, advise the Department of Justice of that fact.

(iii) Any state facility that, prior to January 1, 2007, released
from incarceration a person who was incarcerated because of a
crime for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of release for his or
her most recent offense requiring registration to the Department
of Justice in a manner and format approved by the department.
The information provided by the Department of Corrections and
Rehabilitation shall be limited to information that is currently
maintained in an electronic format.

(iv) Any state facility that, prior to January 1, 2007, released a
person who is required to register pursuant to Section 290 from
incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved by the department. The information
provided by the Department of Corrections and Rehabilitation
shall be limited to information that is currently maintained in an
electronic format.

(3) The State Department of State Hospitals shall provide to the
Department of Justice Sex Offender Tracking Program the names
of all persons committed to its custody pursuant to Article 4
(commencing with Section 6600) of Chapter 2 of Part 2 of Division
6 of the Welfare and Institutions Code, within 30 days of
commitment, and shall provide the names of all of those persons
released from its custody within five working days of release.

(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in, or who is described in, paragraph
(2), the Department of Justice shall make available to the public
via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, prior adjudication as a sexually violent
predator, the address at which the person resides, and any other
information that the Department of Justice deems relevant, but not
the information excluded pursuant to subdivision (a). On or before
January 1, 2013, the department shall make available to the public
via the Internet Web site his or her static SARATSO score and
information on an elevated risk level based on the SARATSO
future violence tool.

(2) This subdivision shall apply to the following offenses and
offenders:

(A) Section 187 committed in the perpetration, or an attempt to
perpetrate, rape or any act punishable under Section 286, 288,
288a, or 289.

(B) Section 207 committed with intent to violate Section 261,
286, 288, 288a, or 289.

(C) Section 209 committed with intent to violate Section 261,
286, 288, 288a, or 289.

(D) Paragraph (2) or (6) of subdivision (a) of Section 261.

(E) Section 264.1.

(F) Section 269.

(G) Subdivision (c) or (d) of Section 286.

(H) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.

(I) Subdivision (c) or (d) of Section 288a.

(J) Section 288.3, provided that the offense is a felony.

(K) Section 288.4, provided that the offense is a felony.

(L) Section 288.5.

(M) Subdivision (a) or (j) of Section 289.

(N) Section 288.7.

(O) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code.

(P) A felony violation of Section 311.1.

(Q) A felony violation of subdivision (b), (c), or (d) of Section
311.2.

(R) A felony violation of Section 311.3.

(S) A felony violation of subdivision (a), (b), or (c) of Section
311.4.

(T) Section 311.10.

(U) A felony violation of Section 311.11.

(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the
person resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of
Justice shall determine whether any person convicted of an offense
listed in paragraph (2) also has one or more prior or subsequent
convictions of an offense listed in subdivision (c) of Section 290,
and, for those persons, the Department of Justice shall make
available to the public via the Internet Web site the address at
which the person resides. However, the address at which the person
resides shall not be disclosed until a determination is made that
the person is, by virtue of his or her additional prior or subsequent
conviction of an offense listed in subdivision (c) of Section 290,
subject to this subdivision.

(2) This subdivision shall apply to the following offenses:

(A) Section 220, except assault to commit mayhem.

(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.

(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.

(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.

(E) Subdivision (b), (d), (e), or (i) of Section 289.

(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases,
a photograph, a physical description, including gender and race,
date of birth, criminal history, the community of residence and
ZIP Code in which the person resides or the county in which the
person is registered as a transient, and any other information that
the Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.

(2) This subdivision shall apply to the following offenses and
offenders:

(A) Subdivision (a) of Section 243.4, provided that the offense
is a felony.

(B) Section 266, provided that the offense is a felony.

(C) Section 266c, provided that the offense is a felony.

(D) Section 266j.

(E) Section 267.

(F) Subdivision (c) of Section 288, provided that the offense is
a misdemeanor.

(G) Section 288.3, provided that the offense is a misdemeanor.

(H) Section 288.4, provided that the offense is a misdemeanor.

(I) Section 626.81.

(J) Section 647.6.

(K) Section 653c.

(L) Any person required to register pursuant to Section 290
based upon an out-of-state conviction, unless that person is
excluded from the Internet Web site pursuant to subdivision (e).
However, if the Department of Justice has determined that the
out-of-state crime, if committed or attempted in this state, would
have been punishable in this state as a crime described in
subdivision (c) of Section 290, the person shall be placed on the
Internet Web site as provided in subdivision (b) or (c), as applicable
to the crime.

(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in this
subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving
the facts that make him or her eligible for exclusion from the
Internet Web site. However, a person who has filed for or been
granted an exclusion from the Internet Web site is not relieved of
his or her duty to register as a sex offender pursuant to Section
290 nor from any otherwise applicable provision of law.

(2) This subdivision shall apply to the following offenses:

(A) A felony violation of subdivision (a) of Section 243.4.

(B) Section 647.6, if the offense is a misdemeanor.

(C) A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if
the person submits to the department a certified copy of a probation
report filed in court that clearly states that all victims involved in
the commission of the offense were at least 16 years of age or older
at the time of the commission of the offense.

begin insert

(D) (i) An offense for which the offender successfully completed
probation, provided that the offender submits to the department a
certified copy of a probation report, presentencing report, report
prepared pursuant to Section 288.1, or other official court
document that clearly demonstrates that the offender was the
victim’s parent, stepparent, sibling, or grandparent and that the
crime did not involve either oral copulation or penetration of the
vagina or rectum of either the victim or the offender by the penis
of the other or by any foreign object.

end insert begin insert

(ii) An offense for which the offender is on probation at the time
of his or her application, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates that the offender was
the victim’s parent, stepparent, sibling, or grandparent and that
the crime did not involve either oral copulation or penetration of
the vagina or rectum of either the victim or the offender by the
penis of the other or by any foreign object. An offender who is on
probation at the time of his or her application shall have been on
probation for at least one year prior to the granting of his or her
application.

end insert begin insert

(iii) Prior to the granting of an application under this
subparagraph, the Department of Justice Office of Victim
Assistance shall speak to the victim to determine if granting the
exemption would be in the best interest of the victim.

end insert begin insert

(iv) If, subsequent to his or her application, the offender commits
a violation of probation resulting in his or her incarceration in
county jail or state prison, his or her exclusion, or application for
exclusion, from the Internet Web site shall be terminated.

end insert begin insert

(v) For the purposes of this subparagraph, “successfully
completed probation” means that during the period of probation
the offender neither received additional county jail or state prison
time for a violation of probation nor was convicted of another
offense resulting in a sentence to county jail or state prison.

end insert

(3) If the department determines that a person who was granted
an exclusion under a former version of this subdivision would not
qualify for an exclusion under the current version of this
subdivision, the department shall rescind the exclusion, make a
reasonable effort to provide notification to the person that the
exclusion has been rescinded, and, no sooner than 30 days after
notification is attempted, make information about the offender
available to the public on the Internet Web site as provided in this
section.

(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to
the department documentation sufficient for the department to
determine that he or she has a SARATSO risk level of low or
moderate-low.

(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.

(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).

(2) The law enforcement entity may make available by way of
an Internet Web site the information described in subdivision (c)
if it determines that the public disclosure of the information about
a specific offender by way of the entity’s Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.

(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision
(b) of Section 290.45. However, that offender’s address may not
be disclosed unless he or she is a person whose address is on the
Department of Justice’s Internet Web site pursuant to subdivision
(b) or (c).

(h) For purposes of this section, “offense” includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subdivision (c) of Section 290.

(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver
of exemptions under Chapter 3.5 (commencing with Section 6250)
of Title 1 of Division 7 of the Government Code and does not
affect other statutory restrictions on disclosure in other situations.

(j) (1) Any person who uses information disclosed pursuant to
this section to commit a misdemeanor shall be subject to, in
addition to any other penalty or fine imposed, a fine of not less
than ten thousand dollars ($10,000) and not more than fifty
thousand dollars ($50,000).

(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.

(k) Any person who is required to register pursuant to Section
290 who enters an Internet Web site established pursuant to this
section shall be punished by a fine not exceeding one thousand
dollars ($1,000), imprisonment in a county jail for a period not to
exceed six months, or by both that fine and imprisonment.

(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.

(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:

(A) Health insurance.

(B) Insurance.

(C) Loans.

(D) Credit.

(E) Employment.

(F) Education, scholarships, or fellowships.

(G) Housing or accommodations.

(H) Benefits, privileges, or services provided by any business
establishment.

(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105
and 11105.3, Section 8808 of the Family Code, Sections 777.5
and 14409.2 of the Financial Code, Sections 1522.01 and 1596.871
of the Health and Safety Code, and Section 432.7 of the Labor
Code.

(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a
court sitting without a jury, not exceeding three times the amount
of actual damage, and not less than two hundred fifty dollars
($250), and attorney’s fees, exemplary damages, or a civil penalty
not exceeding twenty-five thousand dollars ($25,000).

(B) Whenever there is reasonable cause to believe that any
person or group of persons is engaged in a pattern or practice of
misuse of the information available via an Internet Web site
established pursuant to this section in violation of paragraph (2),
the Attorney General, any district attorney, or city attorney, or any
person aggrieved by the misuse is authorized to bring a civil action
in the appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions
of law, including Part 2 (commencing with Section 43) of Division
1 of the Civil Code.

(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.

(n) A designated law enforcement entity and its employees shall
be immune from liability for good faith conduct under this section.

(o) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include,
but are not limited to, a hotline for community inquiries,
neighborhood and business guidelines for how to respond to
information posted on this Internet Web site, and any other resource
that promotes public education about these offenders.