BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 622 (Corbett)
As Introduced February 18, 2011
Hearing date: March 29, 2011
Penal Code
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SEX OFFENDER REGISTRATION:
OUT-OF-STATE OFFENDERS
HISTORY
Source: Attorney General's Office
Prior Legislation: None
Support: Peace Officers Research Association of California;
California State Sheriffs' Association; California
Probation Parole and Correctional Association;
California Police Chiefs Association; Crime Victims
United of California; California District Attorneys
Association; Chief Probation Officers of California
Opposition:California Public Defenders Association
KEY ISSUES
SHOULD CALIFORNIA SEX OFFENDER LAW BE CLARIFIED TO PROVIDE THAT
REGISTRATION FOR AN OUT-OF-STATE CONVICTION IS BASED ON THE
ELEMENTS OF THE CONVICTION OFFENSE OR PROVEN OR STIPULATED FACTS
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IN THE RECORD OF CONVICTION?
SHOULD THE SEX OFFENDER REGISTRATION STATUTE BE AMENDED TO
REQUIRE REGISTRATION IN CALIFORNIA IF THE PERSON COMMITTED AN
OFFENSE THAT REQUIRES REGISTRATION IN THE STATE OF CONVICTION,
INSTEAD OF REQUIRING REGISTRATION IN CALIFORNIA WHEN THE PERSON
HAS TO REGISTER IN THE STATE OF CONVICTION?
PURPOSE
The purposes of this bill are to 1) clarify that sex offender
registration in California for an out-of-state conviction is
based on the elements of the conviction offense or proven or
stipulated facts in the record of conviction; and 2) require sex
offender registration in California if a person committed an
offense that requires registration in the state of conviction,
instead of requiring California registration when the person has
to register in the state of conviction.
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 statute further provides that the following persons are
required to register as a sex offender under California law:
Any "person who, since July 1, 1944, has been, or is
hereafter convicted in any other court, including any
state, federal, or military court, of any offense that, if
committed or attempted in this state, would have been
punishable as one or more of the offenses described in
subdivision (c) of Section 290, including offenses in which
the person was a principal," as specified;
"Any person ordered by any other court, including any
state, federal, or military court, to register as a sex
offender for any offense, if the court found at the time of
conviction or sentencing that the person committed the
offense as a result of sexual compulsion or for purposes of
sexual gratification."
--------------------------
<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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Except as specified, "any person who would be required
to register while residing in the state of conviction for a
sex offense committed in that state." (Penal Code �
290.005.)
Recent case law, In Re Rodden (2010 3rd Dist.) 186 Cal.App.4th
24, construed statutory language to provide that "an
out-of-state conviction requires a defendant to register as a
sex offender in California only when the least adjudicated
elements of the offense satisfy all of the elements of a crime
enumerated in subdivision (c) of section 290 or when the foreign
jurisdiction required the defendant to register as a sex
offender." (Id. at 28.)
This bill would revise and clarify, as indicated in italics,
that California's mandatory sex offender registration laws apply
to persons convicted in other jurisdictions for any offense
that, if committed or attempted in California, based on the
elements of the conviction offense or proven or stipulated facts
in the record of conviction, would be punishable in California
as an offense requiring mandatory sex offender registration
(change in subdivisions (a) and (d) of section 290.005).
Current law requires sex offender registration, except as
specified, for "any person who would be required to register
while residing in the state of conviction for a sex offense
committed in that state." (Penal Code � 290.005(c).)
This bill would amend this subdivision to instead require sex
offender registration for persons who, except as specified, were
convicted of a statutory offense described as a sex offense in
the state of conviction for which sex offender registration is
required.
This bill additionally includes the following uncodified
legislative findings and declarations:
The Legislature finds and declares that it intends by
this legislation to address the holding of In re
Rodden (2010) 186 Cal.App.4th 24. This act is
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necessary to clarify the law on sex offender
registration of out-of-state sex offenders. There is
an immediate need for an amendment clarifying that the
statute permits consideration of adjudicated or
stipulated nonhearsay facts on the record of
out-of-state, federal, or military convictions to
determine whether the offense would have been
punishable as a mandatory registerable offense under
California law. Without this amendment to the statute,
many high-risk sex offenders would not be required to
register as sex offenders under the court's holding in
In re Rodden.
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.
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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 appears, in part, to aggravate the prison overcrowding
crisis described above.<2>
COMMENTS
1. Stated Need for This Bill
The author states:
Last year, the Third District Court of Appeal held, in
In re Rodden (2010) 186 Cal.App.4th 24, that DOJ could
only consider the least adjudicated elements of an
out-of-state conviction in order to determine whether
a sex offender is required to register in California.
In other words, if a person committed a forcible rape
in another state, but the other state's law did not
require proof that force was used in the crime, the
person would not be required to register as a sex
offender in California, because such a crime
(equivalent to sexual battery in California) is not
subject to registration under California law.
As a result, many out-of-state sex offenders are not
required to register in California, even in instances
where the same underlying facts - if proven in court -
would have required registration in California. Since
the Rodden opinion was issued on June 29, 2010, DOJ
has had to terminate the registration of many
dangerous sex offenders, in order to comply with the
decision.
2. What This Bill Would Do
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<2> See Comment 6.
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This bill would do two things: first, it would clarify the test
for determining whether a person convicted of a criminal offense
in another state or jurisdiction is required to register as a
sex offender in California; and second, it would modify
statutory language describing how an out-of-state registration
obligation triggers the obligation to register in California.
With respect to the test for determining whether a person
convicted of a criminal offense somewhere else has to register
in California, this bill clarifies the determination is based on
the elements of the conviction offense or proven or stipulated
facts in the record of conviction. The Attorney General's
office advises Committee staff that, until the Rodden decision,
this was the test employed by the department, and is consistent
with the test applicable to sentencing laws. (See Comment 4,
infra.)
The bill's second provision, which proposes to amend the
language in subdivision (c) of section 290.005, modifies how
out-of-state registration itself triggers a California
registration obligation. As now drafted, current law generally
requires persons required to be registered in the state where
they were convicted to register in California if they come here
and are otherwise subject to the registration statute. The
Attorney General's office notes that this language
unintentionally could allow a convicted sex offender to avoid
registration here if they don't have to register in another
state; for example, if another state didn't require registration
at the time of the person's conviction and did not make its
registration statutes retroactive. The bill would modify this
language to link the registration requirement in California to
the offense committed by the person rather than the person, and
whether that offense is subject to mandatory registration in the
other state.
3. In re Rodden
This bill is intended in part to address the holding of the
court in In Re Rodden (2010 3rd Dist.) 186 Cal.App.4th 24, which
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concluded that "an out-of-state conviction requires a defendant
to register as a sex offender in California only when the least
adjudicated elements of the offense satisfy all of the elements
of a crime enumerated in subdivision (c) of section 290 or when
the foreign jurisdiction required the defendant to register as a
sex offender." (Id. at 28 (emphasis added.) In Rodden, the
Third District Court of Appeals granted a petition for a writ of
habeas corpus in a case where, the appellate court found, the
trial court erred in determining that the elements of a Kentucky
conviction were equivalent to a crime in California requiring
sex offender registration.
Rodden concerned a petitioner who was convicted in Kentucky for
that's state crime of "facilitating sodomy, first-degree." A
post-plea probation report described the petitioner's live-in
boyfriend repeatedly molesting her seven and 11-year-old
daughters with the petitioner's knowledge. The final judgment
in the Kentucky case noted that the petitioner "was fully
familiar with the factual content and conclusions contained in
(a written report of the presentence investigation and a
"comprehensive sex offender presentence evaluation . . ."), and
that neither the defendant nor the defendant's counsel wished to
controvert any factual data contained in either of the reports."
The Kentucky court did not require the petitioner to register as
a sex offender in that state. However, when she moved to
California and her probation was transferred here, her
California probation officer told her she was required to
register as a sex offender under California law. The petitioner
refused, and subsequently was prosecuted for failure to
register.
In its analysis of California statute, the Rodden court surmised
that the standard applied in subdivision (d) of Penal Code
section 290.005, which pertains to foreign convictions not
subject to registration under California law, also was intended
to apply to foreign convictions subject to registration under
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subdivision (a) of that section.<3> The court concluded:
If section 290.005 articulated more than one test for
an out-of-state conviction, the untenable result would
be that for foreign offenses of pimping, pandering,
sodomy, and oral copulation, the trial court would be
simultaneously allowed and disallowed from looking
beyond the least adjudicated elements of the
conviction. On questions of statutory interpretation,
"it is presumed the Legislature intended reasonable
results consistent with its expressed purpose, not
absurd consequences. (Hart v. Autowest Dodge (2007)
147 Cal.App.4th 1258, 1262, quoting Harris v. Capital
Growth Investors XIV (1991) 52 Cal.3d 1142,
1165-1166.) Accordingly, we hold that section 290.005
requires the least adjudicated elements of the
out-of-state conviction to meet all of the statutory
requirements of a registerable offense in
California.<4>
This bill addresses the Rodden decision by clarifying California
statute with respect to out-of-state convictions by expressly
stating that the determination with respect to the out-of-state
conviction can be "based on the elements of the conviction
offense or proven or stipulated facts in the record of
conviction."
4. "Record of Conviction" Standard
Under this bill, the test for determining whether a foreign
conviction subjects an individual to sex offender registration
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<3> "Although the Attorney General seems to concede that
subdivision (d) of section 290.005 allows inquiry only into the
least adjudicated elements of the foreign conviction, the
Attorney General argues that subdivision (d) sheds no light on
the test for qualifying convictions specified in subdivision
(a). Not so. The Legislature would have supplied an unworkable
statute if it had required differing tests in subdivisions (a)
and (d) for determining whether out-of-state convictions are
registerable in California." (Rodden at 14.)
<4> Rodden at 15.
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in California would be "the elements of the conviction offense
or proven or stipulated facts in the record of conviction."
This test is consistent with how foreign convictions are
determined for purposes of sentencing.<5>
5. Opposition
The California Public Defenders Association, which opposes this
bill, states in part:
SB 622 seeks to amend Section 290.005 of the Penal
Code, relating to registration requirements for
out-of-state convictions, so as to contradict the
holding of the Court of Appeal in In re Rodden (2010)
186 Cal.App.4th 24. Specifically, this bill would
provide that for persons convicted in any other court,
including any state, federal or military court, one
can look beyond the elements of the conviction offense
to the proven or stipulated facts in the records of
the conviction, to determine if registration is
required.
Under Penal Code �290, mandatory registration statutes
are triggered by certain convictions or juvenile
adjudications, NOT by the underlying conduct of those
offenses per se. In In re Rodden, the Attorney
General argued that for out of state convictions, the
facts underlying the out of state conviction should be
relied upon to determine who must register as a sex
offender in California.
. . .
In California, section 290 requirements focus on the
specific conviction and the elements of the offense,
rather than the conduct underlying the conviction.
Therefore, "the least adjudicated elements of the
out-of-state crime for which the conviction was
secured must meet the definition of a section 290
----------------------
<5> See People v. Guerrero (1988) 44 Cal.3d 343.
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offense without resort to an examination of the facts
underlying the conviction." Otherwise, registration
will be premised on one standard for in state
convictions, and another, less rigorous standard for
out of state convictions.
Essentially this legislation would "substitute a
wholly different inquiry for out-of-state sex
convictions than that provided for by statute"
relative to in state convictions.
. . .
Presently there are 90,000 registrants pursuant to
Penal Code 290 in California. Our scarce resources
are being stretched as is to coordinate registration
and supervision of 290 registrants in the community.
The legislation is an unnecessary expansion of the
registration requirements, an expansion that has been
found by the reviewing court to be inappropriate under
the rules of statutory construction. As well the
legislation sets the statute up for an equal
protection challenge; what can be the rationale for
applying one standard for registration relative to in
state convictions and another standard for out of
state convictions?
6. ROCA Issue
The author has agreed to amend the bill to not make the changes
it proposes to subdivision (c) of Penal Code section 290.005 in
order to address the Committee's ROCA policy.
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