BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 668 (Hollingsworth)
As Amended April 14, 2009
Hearing date: April 28, 2009
Penal Code
AA:br
SEX OFFENDER REGISTRATION :
PENALTIES
HISTORY
Source: San Diego County District Attorney's Office
Prior Legislation: SB 501 (Hollingsworth) - 2007; failed
passage, Senate Public Safety
AB 2527 (Frommer) - Ch. 429, Stats. 2004
Support: California District Attorneys Association; Association
for Los Angeles Deputy Sheriffs; Riverside Sheriffs'
Association; Los Angeles County District Attorney's
Office; Riverside County District Attorney's Office;
Murrieta Police Department; City of Hemet; City of
Menifee; City of Wildomar; several individuals
Opposition:Taxpayers for Improving Public Safety; American Civil
Liberties Union
KEY ISSUE
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SHOULD existing law PROVIDE that any person who is required to
register as a sex offender and 1) fails to provide information
required on registration and re-registration forms of the
Department of Justice, or 2) provides false information, be
subject to an alternate felony-misdemeanor, depending upon
whether the crime for which they are required to register as a
sex offender is a misdemeanor or a felony, AS SPECIFIED?
PURPOSE
The purpose of this bill is to provide that any person who is
required to register as a sex offender and 1) fails to provide
information required on registration and re-registration forms
of the Department of Justice, or 2) provides false information,
is subject to an alternate felony-misdemeanor, depending upon
whether the crime for which they are required to register as a
sex offender is a misdemeanor or a felony.
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
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domiciled, as specified.<1> (Penal Code 290.) Registration
generally must be updated annually, within five working days of
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 registrants to provide the following
information when they register or reregister:
A statement in writing signed by the person, giving
information as shall be required by the Department of
Justice and giving the name and address of the person's
employer, and the address of the person's place of
employment if that is different from the employer's main
address;
The fingerprints and a current photograph of the person
taken by the registering official;
The license plate number of any vehicle owned by,
regularly driven by, or registered in the name of the
person;
Notice to the person that, in addition to other
specified requirements, he or she may have a duty to
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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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register in any other state where he or she may relocate;
and
Copies of adequate proof of residence, as specified.
(Penal Code 290.015.)
Current law provides that it is a crime, punishable as
specified, for any person who is required to register to
willfully violate any requirement of this section. (Penal Code
290.018.) Specifically, current statute includes the
following provisions:
Misdemeanor underlying sex crime : Any person who is
required to register based on a misdemeanor conviction or
juvenile adjudication who willfully violates any
requirement of the Act is guilty of a misdemeanor
punishable by imprisonment in a county jail not exceeding
one year. (Penal Code 290.018 (a).)
Felony underlying sex crime : Except as provided,<2> any
person who is required to register under the Act based on a
felony conviction or juvenile adjudication who willfully
violates any requirement of the Act or who has a prior
conviction or juvenile adjudication for the offense of
failing to register under the Act and who subsequently and
willfully violates any requirement of the Act is guilty of
a felony and shall be punished by imprisonment in the state
prison for 16 months, or 2 or 3 years. (Penal Code
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<2> The exceptions are: if the person has been adjudicated a
sexually violent predator, as specified, and they fail to verify
registration every 90 days, the penalty is a wobbler, punished
by imprisonment in the state prison or jail, as specified (subd.
[f]); any person who fails to provide proof of residence as
specified, regardless of the offense upon which the duty to
register is based, is guilty of a misdemeanor, as specified
(subd. [h]); and, in addition to any other penalty imposed under
this section, the failure to provide information required on
registration and reregistration forms of the Department of
Justice, or the provision of false information, is a crime
punishable by imprisonment in a county jail for a period not
exceeding one year [subd. [j]).
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290.018 (b).)
Mentally disordered sex offenders : Any person
determined to be a mentally disordered sex offender or who
has been found guilty in the guilt phase of trial for a
registerable offense, but who has been found not guilty by
reason of insanity in the sanity phase of the trial, or who
has had a petition sustained in a juvenile adjudication for
a registerable offense, but who has been found not guilty
by reason of insanity, who willfully violates any
requirement of the Act is guilty of a misdemeanor
punishable by jail, as specified. For any second or
subsequent willful violation of any registration
requirement, the person is guilty of a felony, punishable
as specified. (Penal Code 290.018 (d).)
Transient registrants : Transient registrants who
willfully fail to comply with the requirement of
registering no less than every 30 days is guilty of a
misdemeanor, punishably by jail for at least 30 days, but
not exceeding six months.<3> "A person who willfully fails
to comply with the requirement that he or she reregister no
less than every 30 days shall not be charged with this
violation more often than once for a failure to register in
any period of 90 days. Any person who willfully commits a
third or subsequent violation of the (transient
registration requirements) shall be punished (based on
their underlying offense, as described above). (Penal Code
290.018 (g).)
Subdivision amended by this bill: "In addition to any
other penalty imposed under this section, the failure to
provide information required on registration and
reregistration forms of the Department of Justice, or the
provision of false information, is a crime punishable by
imprisonment in a county jail for a period not exceeding
one year." (Penal Code 290.018 (j).)
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<3> Registrants who are sexually violent predators are
expressly excepted from this provision.
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This bill would revise subdivision (j), restated immediately
above, to provide that the "failure to provide information
required on registration and reregistration forms of the
Department of Justice, or the provision of false information, is
a crime punishable by imprisonment in a county jail for a period
not exceeding one year, or by imprisonment in the state prison,
as follows:
(1) Any person required to register under the Act
based on a misdemeanor conviction or juvenile
adjudication who violates this subdivision is
guilty of a misdemeanor punishable by imprisonment
in a county jail for a period not exceeding one
year.
(2) Any person required to register under the Act
based on a felony conviction or juvenile
adjudication who violates this subdivision is
guilty of a felony punishable by imprisonment in
state prison for 16 months, or 2 or 3 years."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<4>
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
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<4> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<5>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill would appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
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<5> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The author states:
California requires those convicted of specified sex
offenses to register with local law enforcement for
life. The purpose of sex offender registration is to
assure that these offenders are available for police
surveillance at all times because the Legislature has
deemed them likely to commit similar offenses in the
future. Registered sex offenders are required to
update their information annually, within five working
days of their birthday. Some sex offenders must update
more often: transients must update every 30 days, and
sexually violent predators, every 90 days. Currently,
if a registrant provides false information on his
registration form, the registrant is subject to a
misdemeanor under Penal Code Section 290.018 (j),
regardless of whether his underlying registration crime
is a misdemeanor or felony.
In October 2006, a former Sexually Violent Predator
(SVP) named Matt Lyon Williams was released
unconditionally in Lakeside, an unincorporated
community in East San Diego County. He registered as a
transient and stated he had no automobile. His case
revealed serious weaknesses in the sex offender laws
related to providing truthful information when
registering. Authorities re-arrested Williams after
discovering he had a vehicle and a home residence. The
state must send a clear message to registrants that
California takes its registration requirements very
seriously. It is our aim to make offenders think twice
before providing false information when completing
their registration forms. (emphasis in original.)
2. What This Bill Would Do
This bill would provide that any person who is required to
register as a sex offender who 1) fails to provide information
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required on registration and reregistration forms of DOJ, or 2)
provides false information, is subject to a wobbler, depending
upon whether the crime for which they are required to register
as a sex offender is a misdemeanor or a felony. In some
instances, this bill would increase a current misdemeanor
penalty to a felony.
3. History of Subdivision (j) - Provision This Bill Would Amend;
Potential Clarification
The penalty provision this bill would amend, subdivision (j) of
Penal Code Section 290.018, was enacted into the law in 2004 by
AB 2527 (Frommer). That bill, sponsored jointly by the
Department of Justice and the California District Attorneys
Association, was largely in response to an appellate court case
concerning the application of registration requirements and
penalties on homeless sex offenders.<6>
The bill also contained what now is subdivision (j) to Penal
Code Section 290.018. As explained in the following published
court opinion, that provision was added at the request of the
Department of Justice as part of what was regarded as clean-up
to the statute. Prior to its passage, the language in AB 2527
was amended to include the phrase, "In addition to any other
penalty imposed under this subdivision." This phrase was
inserted to clarify that this provision was not intended to
alter or affect any existing applicable punishments, and remains
in the law today.
In 2007, the effect of this subdivision on other registration
penalty provisions was addressed in People v. Gonzalez (2007)
149 Cal.App.4th 304, where the court rejected a defendant's
argument that the misdemeanor in the current subdivision (j)
essentially converted a felony into a misdemeanor. The court
explained:
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<6> People v. North (2003) 112 Cal.App.4th 621.
(Section 290.0018 [b]) provides that failure by a sex
offender registrant to notify authorities of a change
of address constitutes a felony if the underlying
offense requiring registration is a felony.
(Subdivision [j]) establishes the misdemeanor of
providing false information on a registration form
and requires additional punishment for that
misdemeanor. Gonzalez makes the novel claim that the
reference to ([j]) in ([b]) converts ([b]) into a
"wobbler" statute because ([j]) pertains to a
misdemeanor. Based on this claim, Gonzalez contends
that the trial court erred by failing to exercise its
discretion to impose felony or misdemeanor
punishment. We disagree. The reference to ([j]) in
([b]) appears misplaced and, perhaps, confusing, but
it does not convert ([b]) into a statute that gives
the court discretion to impose either felony or
misdemeanor punishment for a registration violation
when registration was required as the result of a
felony conviction.
Upon changing address or location, a sex offender
registrant must inform the law enforcement agency
where the registrant previously resided of his or her
new address or location. A violation of the statute
can be either a misdemeanor or a felony depending on
whether the registrant's underlying sex offense was a
felony or misdemeanor. . . . (Section 290.018 [b])
is a mandatory sentencing provision that requires the
imposition of a felony sentence whenever a person is
required to register based on an underlying felony
sex offense.
Gonzalez's second . . . conviction was a felony.
Therefore, his current violation<7> . . . was
properly charged as a felony, and requires a felony
sentence pursuant to (Section 290.018 (b).) The
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<7> The defendant was charged with failure to file a change of
address (current Penal Code 290.012.)
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reference to (subdivision [j]) in (subdivision [b])
does not affect this result by giving the court
discretion to impose a misdemeanor punishment.
The only reasonable interpretation of the language . . .
contained in (subdivision ([b]) is that a sentence for
the misdemeanor must be added to the felony sentence
otherwise required by (subdivision [b]). The words of a
statute must be read in context consistently with their
statutory purpose, and parts of a statute must be
construed harmoniously. . . .
The legislative intent in adding (subdivision [j]) in
2005 was to create a substantive crime, not to
fundamentally alter (subdivision [b]). (Subdivision
[j]) was enacted because "[t]he Department of Justice
indicates it has seen a recurring problem in how to
charge registrants who either give false information
on a registration form or omit required information,
and that some courts have rejected these charges
because the statute does not specifically recite
these violations." (Sen. Com. on Public Safety,
Analysis of Assem. Bill No. 2527 (2003-2004 Reg.
Sess.) June 15, 2004.)
While the legislative drafting might have been
better, Gonzalez's interpretation of (subdivision
[b]) is not plausible. (Subdivision [b]) is a
critical element in the Section 290 statutory scheme
whose manifest purpose is to require a felony
sentence for a registration violation when the
registration requirement was imposed as the result of
the commission of a felony. Gonzalez's position
would eviscerate subdivision ([b]) by allowing a
court to sentence a registration violation as a
misdemeanor in every case where the registration
requirement was imposed as the result of an
underlying felony conviction. "We do not abandon our
common sense when we become judges." (Subdivision
[b]) provides exclusively for felony punishment and
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(subdivision [j]) provides exclusively for
misdemeanor punishment. Neither gives the trial
court discretion to treat any registration violation
as either a felony or misdemeanor.<8>
The Gonzalez case thus clarifies that subdivision (j) is in
addition to any other penalties applicable to a registrant. To
the extent that subdivision (j) as currently written adds only
confusion to the law which the author and sponsor intend to
resolve, the author and/or members of the Committee may wish to
consider simply deleting this subdivision.
GIVEN THE CONFUSION SURROUNDING ITS APPLICATION AND ITS ORIGINAL
INTENT, SHOULD SUBDIVISION (J) SIMPLY BE REPEALED?
In the alternative, the author may wish to consider revising
this bill to amend subdivision (j) by adding the following
underlined language, again to clarify its application:
(j) In addition to any other penalty imposed under
this section, the failure to provide information
required on registration and reregistration forms of
the Department of Justice, or the provision of false
information, is a crime punishable by imprisonment in
a county jail for a period not exceeding one year.
Nothing in this subdivision shall be construed to
limit or prevent prosecution under any applicable
provision of law.
SHOULD THIS CLARIFICATION TO SUBDIVISION (J) BE MADE?
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<8> People v. Gonzalez, supra, (citations omitted; emphasis
added; code section references updated to reflect current
statute).
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