BILL ANALYSIS �
SB 622
Page 1
Date of Hearing: August 17, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 622 (Corbett) - As Amended: June 22, 2011
Policy Committee: Public
SafetyVote:4-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill modifies the standard for determining whether a person
convicted of a sex offense in another state is required to
register as a sex offender in California. Specifically, this
bill:
1)Requires registration as a sex offender not only when
conviction in another jurisdiction would have required
registration in California, but also based upon facts admitted
by the defendant or found true by the trier of fact, or
stipulated to in military proceedings, or when the elements of
the conviction contain all of the elements of a registerable
California offense.
2)Declares the intent of this bill is to address the holding of
In re Rodden (2010), which restricted the test for determining
whether an offense from another jurisdiction triggers sex
offender registration in California to a comparison of the
elements of the respective offenses.
FISCAL EFFECT
1)Minor annual GF increase to the Department of Justice (DOJ)
for costs associated with reviewing out-of-state cases for
facts beyond the conviction offense. According to DOJ, the
unit responsible for reviewing these registration cases - as
many as 1,600 per year - would not be significantly impacted
by this bill.
2)Unknown minor annual GF costs to the extent increasing the
number of felony registrants results in additional state
SB 622
Page 2
prison commitments for failure to comply with registration
requirements. For example, in 2009 and 2010, a total of 1,226
persons were committed to state prison for this reason. These
commitments are on a base of about 65,000 felony registrants,
however, so the increase based on the additional 100
registrants DOJ estimates will be affected by this bill is
likely to be negligible.
3)Ongoing minor nonreimbursable local law enforcement costs for
additional registration requirements and related procedures.
COMMENTS
1)Rationale . The author's intent is to abrogate a 2010 Court of
Appeal ruling, In Re Rodden that held only the adjudicated
elements of an offense - not other elements of the offense
contained in the record, such as stipulated facts contained in
the record - satisfy the criteria to determine whether a
person who commits an offense in another jurisdiction should
be required to register as a sex offender in California.
According to the author and sponsor, the DOJ, until the Rodden
holding, it was the practice of DOJ to review out-of-state
convictions to consider proven, adjudicated non-hearsay facts
on the record to determine the nature of out-of-state, federal
or military offenses. For example, if the charging language
included an element of the offense, such as victim's age or
type of conduct, and the defendant pled to, or was convicted
of that charge, that information could help clarify provisions
of the out-of-state statute applicable to the defendant. Many
out-of-state statutes include multiple offenses in a code
section, some of which are registerable in California and some
of which are not. Existing law does not look beyond the
proven elements of the offense.
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
SB 622
Page 3
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)In re Rodden . In Rodden, the Court of Appeal considered
whether sex offender registration requirement could be imposed
for an out-of-state offense based on facts presented in a
probation report. The court found as a matter of statutory
interpretation that Penal Code Section 290 does not refer to
conduct underlying a conviction in determining who must
register. Rather, registration is predicated on conviction of
specified offenses. Therefore, the court held that "an
out-of-state conviction requires a defendant to register in
California only when the least adjudicated elements of the
offense satisfy all of the elements a crime enumerated in
subdivision (c) of section 290, or when the foreign
jurisdiction required the defendant to register."
3)Due Process Concerns . Since the determination of whether an
out-of-state sex offense conviction triggers sex offender
registration requirements in California is made by DOJ and not
in open court - as is the case, for example, with out-of-state
convictions used as prior conviction allegations - this
proposal raises due process concerns. How does a potential sex
offender registrant know that the DOJ is limiting its inquiry
to relevant and admissible facts? How does a potential
registrant appeal or dispute the application of such facts,
other than filing a writ?
4)Opposition . According to the ACLU, "Under existing law, out of
state priors must have the same elements as an offense for
which registration is required in California. This bill would
additionally require registration based on the proven or
stipulated facts in the record of conviction. Among other
things, this new requirement will make the process much more
complicated - a person won't just be able to look at the law
of the two states and know whether he has to register;
instead, he'll have to figure out what's in the record of
SB 622
Page 4
conviction and what it means. This only heightens the
existing due process concerns for out of state registrants
especially if the Attorney General is simply informing people
they have to register based on foreign convictions without
some appropriate review process."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081