BILL ANALYSIS �
AB 1640
Page A
Date of Hearing: March 25, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1640 (Jones-Sawyer) - As Introduced: February 11, 2014
As Proposed to be Amended in Committee
SUMMARY : Relieves specified non-forcible, statutory rape
offenses from mandatory lifetime sex offender registration and
leaves the decision as to whether the offender is required to
register to the discretion of the sentencing judge.
Specifically, this bill :
1)Specifies that offenders convicted of sexual penetration with
a minor 14 years of age or older shall not be required to
register as a sex offender for life unless required to do so
by the sentencing judge.
2)Specifies that offenders convicted of oral copulation with a
minor 14 years of age or older shall not be required to
register as a sex offender for life unless required to do so
by the sentencing judge.
3)Specifies that offenders convicted of sodomy with a minor 14
years of age or older shall not be required to register as a
sex offender for life unless required to do so by the
sentencing judge.
4)Specifies that offenders convicted of contacting a minor 14
years of age or older with the intent of committing sexual
penetration, oral copulation, or sodomy shall not be required
to register as a sex offender for life unless required to do
so by the sentencing judge.
EXISTING LAW :
1)Specifies that a person required to register as a sex offender
as specified, upon obtaining a certificate of rehabilitation
shall be relieved of any further duty to register if he or she
is not in custody, on parole, or on probation. (Pen. Code �
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290.5 subd. (a)(1).)
2)States that a person required to register as a sex offender
upon obtaining a certificate of rehabilitation shall not be
relieved of the duty to register or any offense subject to
that section of which he or she is convicted in the future, if
his or her conviction of specified offenses. (Pen. Code �
290.5 subd. (a)(2).)
3)Provides that a person shall not be relieved of the duty to
register until that person has obtained a full pardon. (Pen.
Code � 290.5 subd. (b)(1).)
4)Provides that courts, upon granting a petition for a
certificate of rehabilitation, if the petition was granted
prior to January 1, 1998, may relieve a person of the duty to
register for specified convictions, provided that the person
was granted probation, has complied with the provisions of
registration for a continuous period of at least 10 years
immediately preceding the filing of the petition, and has not
been convicted of a felony during that period. (Pen. Code �
290.5 subd. (b)(3).)
5)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.
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
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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.
1)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: (Pen. Code � 290.015
subd. (a).)
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
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.
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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, including the information.
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.
2)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).)
3)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).)
4)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, 2 or 3 years. (Pen. Code �
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290.018 subds. (a) & (b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1640 amends
California's Sex Offender Registration Law to eliminate the
registration requirement for sexual offenses that the
California Supreme Court and various Appellate Courts have
ruled violate a defendant's equal protection rights. Under
this proposal courts would still retain their discretionary
power to impose sex offender registration in any case the
court deems it appropriate. This measure will clean up the
registration process and allow resources to utilized where
they are needed."
2)Background on People v. Hofsheier : According to the
background provided by the bill's sponsor currently, there are
several non-forcible, "consensual" sexual offenses involving
minors which require lifetime sex offender registration.
These cases involve minors who are having a sexual
relationship with someone over the age of 18. Although minors
cannot legally consent to sexual activity, the cases are
viewed as "consensual<1>" because the sexual activity is not
forced and the minor is a willing participant. The California
Supreme Court and the Appellate Courts have found that
mandatory, lifetime registration violates equal protection
laws under these circumstances.
In People v Hofsheier, the California Supreme Court ruled that
mandatory lifetime sex registration pursuant to Penal Code
section 290 for a violation of Penal Code section 288a(b)(1)
was unconstitutional. In Hofsheier, the 22 year old defendant
was convicted of engaging in oral sex with a minor. The
Supreme Court stated that if the defendant had been convicted
of Penal Code section 261.5 (unlawful sexual intercourse with
a minor) he would not have been subject to mandatory lifetime
--------------------------
<1> Here the term "consensual" refers to factual consent in that
the sexual act is not physically forced upon the victim, rather
than legal consent. No minor can legally consent to sexual
activities detailed in this bill. Nothing in this proposed
legislation will change the rules of consent or its legal
definition.
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sex offender registration. Using the rational basis test, the
California Supreme Court determined there was no rational
basis for treating convicted offenders of Penal Code section
288a(b)(1) differently than those convicted of Penal Code
section 261.5.
Several cases following the Hofsheier ruling have now applied
the Hofsheier analysis and ruled that it also applies to the
following Penal Code offenses:
Penal Code Section 286(b)(1): Sodomy with a Person Under 18
(People v. Thompson)
Penal Code Section 286(b)(2): Sodomy with a Person Under 16
(People v. Boyette)
Penal Code Section 288a(b)(2): Oral Copulation with a Person
Under 16 (People v. Garcia)
Penal Code Section 289(h): Sexual Penetration with Foreign
Object with a Person Under 18 (People v. Ranscht)
Penal Code Section 289(i): Sexual Penetration with Foreign
Object with a Person Under 16 (People v. Gomez)
AB 1640 amends Penal Code section 290 to eliminate the
registration requirement for sexual offenses which have been
determined to violate equal protection laws, thus bringing the
Penal Code into alignment with the ruling by the by the
California Supreme Court and the subsequent rulings by various
Appellate Courts under the Hofsheier reasoning. Under this
proposal courts would still retain their discretionary power
under Penal Code section 290.006 to impose sex offender
registration in any case the court deems it appropriate.
While the number of cases filed would not be affected by this
legislation, the number of trials would be decreased as
lifetime sex offender registration is often the sole obstacle
in reaching a disposition. Additionally, moving forward there
would be a decrease in the number of Hofsheier writs of
mandate.
3)Purpose and Requirements of Sex Offender Registration :
California was the first state to require sex offender
registration in 1947. The stated purpose for sex offender
registration is to deter offenders from committing future
crimes, provide law enforcement with an additional
investigative tool, and increase public protection. [Wright
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vs. Superior Court (1997) 15 Cal.4th 521, 526; Alissa Pleau
(2007) Review of Selected 2007 California Legislation:
Closing a Loophole in California's Sex Offender Registration
Laws, 38 McGeorge L. Rev. 276, 277; Hatton vs. Bonner (2004)
365 F. 3rd 955, 961.] Penal Code Section 290 requires
life-time registration by persons convicted of specified sex
crimes that reside in, attend school or work in California.
(Pen. Code � 290 subd. (a).) Sex offenders are required to
register annually within five working days of his or her
birthday. (Pen. Code � 290 subd. (b).) If the offender has
no fixed address, he or she is required to register every 30
days. (Pen. Code � 290.011 subd. (a).) A person is also
required to notify law enforcement of any change of address
within five days of moving. (Pen. Code � 290.014.) A person
who fails to register as a sex offender within the period
required by law is guilty of a felony punishable by 16 months,
2 or 3 years. (Pen. Code � 290.018 subd. (b).)
In 1996, California enacted "Megan's Law" allowing the public to
access an address list of registered sex offenders. Before
2003, members of the public could only obtain the information
on the Megan's Law list by calling a "900" or visiting certain
designated law enforcement agencies and reviewing a CD-ROM.
However, in 2003, California required the DOJ to put the
Megan's Law list of offenders on a public access Web site with
the offender's address, photo and list of offenses. [See
Penal Code Section 290.46(a).] For some offenders with less
serious offenses, only his or her ZIP code is listed. Now, a
citizen can enter his or her address and see if there are
registered sex offenders living in his or her community or
even next door.
The registration statute does not distinguish crimes based on
severity and instead requires all persons convicted of a
listed crime must register annually within five days of his or
her birthday and for the rest of his or her life. (Pen. Code
� 290.012 subd. (a).) Although most registerable offenses are
felonies, there some alternate felony/misdemeanor penalties
and a few straight misdemeanors. [See (Pen. Code � 243.4
(sexual battery); (Pen. Code � 266c (obtaining sexual consent
by fraud); (Pen. Code �� 311.1, 311.2(c), 311.4, 311.11 (child
pornography); (Pen. Code � 647.6 (annoying or molesting a
child); and, (Pen. Code � 314(1)(2) (indecent exposure).)
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4)California Sex Offender Management Board's February 2014
Year-End Report : On September 20, 2006, Governor Arnold
Schwarzenegger signed Assembly Bill 1015, which created the
California Sex Offender Management Board (CASOMB). AB 1015
had been introduced by Assembly Members Judy Chu and Todd
Spitzer and passed the California Legislature with nearly
unanimous bipartisan support.
In February of 2014 the CASOMB released its year-end report.
In the report, the Board made the following recommendations
regarding sex offender registration.
"The Board has repeatedly called for a rethinking of the
state's registration policies as articulated in Penal Code
Section 290. CASOMB decided the Board's top priority in 2014
should be a focus on improving sex offender registration laws
in California. Changes in this area have the potential to
provide significant impact on improving public safety.
Continuing with the state's good public policy sense for
California, especially considering what is now known about how
sex offender risk and recidivism decrease over time. The
sheer numbers of registered sex offenders in the state make
the status of being a registered sex offender increasingly
meaningless and unhelpful.
"Ensuring that dangerous offenders register for life and
posting higher risk offenders on the public Megan's Law
website, while allowing low level offenders who have remained
offense-free for a specified period to stop registering, would
make the Registry a much more effective tool for managing sex
offenders and protecting communities. Valuable state and
local resources need to be redirected to concentrate law
enforcement efforts on those offenders who pose a real risk to
our children and communities. CASOMB continues to urge the
Legislature to adopt the best evidence-based policies for sex
offender registration and notification, to better protect the
public."
5)December 16, 2010 California Research Bureau Report : In
December 2010, the California Research Bureau (CRB) published
a report which reviewed practices and procedures throughout
the United States regarding the registration of sex offenders.
Specifically the CRB examined: (a) registration
requirements, (b) tiered registration, (d) the duration of
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registration, and (d) best practices and the overall
cost-effectiveness of sex offender registration requirements.
Specifically CRB examined how other states have implemented
registration requirements.
"For a review of sex offender registration practices in other
states, we selected states bordering California: Arizona,
Nevada, and Oregon; and states with large populations and/or
similar demographic characteristics as California: Florida,
New Jersey, New York, Pennsylvania and Texas. For each of
these states, we have compiled the following information:
"The offenses which require offender registration.
"The duration and type of registration (tiered vs. nontiered,
i.e., duration based on type of crime committed and/or risk
for reoffense).
"Any residency or occupational restrictions placed on
registrants.
"These states have many registrable sex offenses in common such
as sexual assault, luring or kidnapping of a minor, possessing
child pornography, etc. However, they vary in the duration of
registration requirements and in whether or not they place
occupational or residency restrictions on registrants.
"Of the states reviewed, only one, Florida, requires lifetime
registration. The others have tiers for registration - based
on prior convictions or the type of offense, i.e., registering
for ten, 15 or 20 years for first-time offenses; and lifetime
registration for more violent or repeat offenses. Some of the
states do allow registrants to petition for removal from the
list, generally after a period of not committing any
registrable offenses. In contrast, California requires
lifetime registration for all offenses, and only allows people
convicted of certain misdemeanor sex offenses to apply for a
certificate of rehabilitation with a trial court. If the
certification is granted, they might be released from the duty
to register --- but not in all cases.
"Of the states reviewed, all have either some form of residency
or occupational restrictions. Only one, Oregon, has both
types of restrictions. In Oregon, sex offenders cannot reside
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'near locations where children are the primary occupants or
users,' or live with other sex offenders. They are also
ineligible to become teachers. In California, sex offenders
cannot reside within 2,000 feet of 'any public or private
school, or park where children regularly gather.' They may be
subject to local ordinances that limit where they can live
even further. Also, a registered sex offender in California
whose victim was under the age of 16 cannot work with minor
children. The other selected states in this brief which have
some type of residency restriction generally limit how close a
sex offender may live in proximity to a school, daycare
center, playground or any other place where children
congregate. Occupational restrictions can sometimes be more
haphazard: New York, for example, prohibits sex offenders from
operating ice cream trucks, but has no other limitations. In
some states, such as Pennsylvania and Texas there may be
restrictions placed on offenders as a condition of parole, but
not required by statute."
6)Argument in Support : According to the California Public
Defenders Association, "AB 1640 seeks to amend sections 290
and 290.5 of the Penal Code to comport with the 2006 ruling of
the California Supreme in People v. Hofsheier (2006) 37
Cal.4th 1185 (Hofsheier) and its progeny.
"In 2006, Vincent Peter Hofsheier, a 22 year-old man, pled
guilty to having violated Section 288a, subdivision (b)(1),
which prohibits nonforcible oral copulation between a person
over the age of 18 and a person under the age of 18. The
minor in this particular case had been 16 when the offense
occurred, and Vincent had been 21 or 22. Because Section
288a(b)(1) was (and continues to be) listed in Section 290,
subdivision (c) as a crime requiring lifelong registration as
a sex offender, Vincent Hofsheier was ordered to register. He
challenged this order, arguing that the statutory distinction
between those convicted of engaging in nonforcible oral
copulation with a person under the age of 18 (a crime which is
included in subdivision (c) of Section 290) and those
convicted of engaging in nonforcible sexual intercourse with a
person under the age of 18 (a crime not included in
subdivision (c)) violates guarantees of equal protection under
the laws by treating similarly situated people dissimilarly.
The Supreme Court agreed and held that registration cannot
constitutionally be required for all people convicted of
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Section 288a, subdivision (b)(1). The Court's ruling was
founded on the principal that no "reasonably conceivable"
basis exists for treating people differently based upon the
nature of the nonforcible sexual act in which they, and a
person under the age of 18, engaged. "We perceive no reason
why the Legislature would conclude that persons who are
convicted of voluntary oral copulation with adolescents 16 to
17 years old, as opposed to those who are convicted of
voluntary ? intercourse with adolescents in that same age
group, constitute a class of 'particularly incorrigible
offenders' who require lifetime surveillance as sex
offenders." (People v. Hofsheier, supra, at pp. 1206-1207.)
However, the Court made it clear that, as with all criminal
convictions, registration could be ordered as a result of this
conviction, in the court's discretion, following a hearing
regarding the risk posed by the particular defendant to the
public. (People v. Hofsheier, supra, 37 Cal. 4th at pp.
1208-1209; �290.006.
"Over the past eight years, since Hofsheier was decided, the
Department of Justice's Sex Offender Tracking Program has sent
letters to thousands of registered sex offenders who, based on
the crime of which they were convicted, appeared to be
eligible for relief from the "mandatory" duty to register
(�290(c)) and subject to an individualized determination of
dangerousness (�290.006). In 2010, the California Supreme
Court provided guidance as to the procedural mechanism to be
used in pursuing such relief post-conviction, a petition for
writ of mandamus. (People v. Picklesimer (2010) 48 Cal.4th
330, 340-341.)
"Over the past three years, criminal law practitioners and
trial courts throughout California have been familiarizing
themselves, often for the first time, with this rather unusual
procedural mechanism and have been attempting to utilize the
writ for those who have come forward and sought the relief and
individualized determination of risk to which they are
constitutionally entitled.
"But superior courts, where Hofsheier petitions must be filed
and litigated, are limited in terms of resources, and
California Public Defenders and court-appointed criminal
attorneys have neither the statutory obligation nor the
resources to initiate thousands of civil writ proceedings and
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litigate the merits of these petitions on behalf of the
remaining Californians eligible for Hofsheier relief. The
reality is that few of these folks can afford to retain
counsel or have the training and skill required to prepare,
file, and litigate the merits of a petition for writ of
mandamus on their own. This is particularly frustrating
because, based on the experience of our members, petitions
seeking relief from the mandatory duty to register and seeking
a discretionary determination of dangerousness are largely
unopposed. In our experience, California Prosecutors,
following the holding in Hofsheier and its progeny, generally
concede that mandatory registration is unconstitutional in
these cases and then assert the People's right to address the
offender's individualized dangerousness at an evidentiary
hearing.
"AB 1640 directly addresses and resolves this problem. By
removing the Romeo-and-Juliet Hofsheieresque offenses from
subdivision (c) of Section 290, the Bill essentially codifies
the holdings of Hofsheier and its progeny and eliminates the
need for wasteful mandamus proceedings.
"With regard to the proposed deletion of the Hofsheieresque
offenses from Section 290.5, subdivision (a), which precludes
certain offenders from being relieved of the duty to register
after receiving a certificate of rehabilitation, the Bill
conserves even more resources. In D.M. v. Department of
Justice (2012) 209 Cal.App.4th 1439, the Court extended the
reasoning of Hofsheier to an individual convicted of Section
288a, subdivision (b)(1), who had engaged in oral copulation
with a "consenting" 16 or 17 year-old, and was denied relief
from the duty to register after he received a certificate of
rehabilitation. The Court concluded that denying this relief
to D.M., when such relief is available upon a conviction for
unlawful intercourse, violates the Equal Protection Clause.
As with those seeking relief under Hofsheier, few of these
folks, still saddled with the burden of lifelong registration
notwithstanding a recent judicial determination of
rehabilitation and the receipt of a certificate, even know of
their rights. Fewer still can afford to retain counsel to
help them enforce those rights, and only a handful are
prepared to pursue mandamus relief on their own. As with
Hofsheier, immeasurable resources are being expended
needlessly to fulfill the constitutional mandate of Doe v.
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Harris.
"The California Public Defender's Association supports AB 1640
because it makes available to our former and current clients
relief which has been legally but not practically available to
them since 2006, eliminates the need for wasteful unopposed
legal proceedings, and allows prosecutors, defenders, and
courts to focus their resources on the evidence-based
determination central to the discretionary registration
requirement of Section 290.006 and a finding of rehabilitation
contemplated by Section 4852.13 - the danger to the public
posed by the particular individual appearing before the court.
As criminal justice continues to evolve, embracing
evidence-based practices, our limited government resources can
be better utilized by supervising, containing, and controlling
those who pose some danger to the public and allowing those
who do not to get back to living their lives."
7)Prior Legislation:
a) AB 702 (Ammiano), of the 2013-14 Legislative Session,
establishes a three-tiered registration system for sex
offenders for periods of 10 years, 20 years, or life. AB
702 was held in the Assembly Appropriations Committee.
b) AB 625 (Ammiano), of the 2011-12 Legislative Session,
would have established a three-tiered registration system
for sex offenders for periods of 10 years, 20 years, or
life. AB 625 failed passage on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (sponsor)
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Opposition
None
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Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744