Tiered Sex Offender Registry

What is the New Tier Registration Under SB 384?

Under California Penal Law, people that have been convicted of certain sex crimes must register as a sex offender.[1] As it stands currently, California law requires lifetime registration for convicted sex offenders. With the dawn of SB 384, there is now a new tiered registry for convicted sex offenders. Instead of lifetime registration, by January 1, 2021, there will be three “tiers” of sex offender registration for adults (10 years, 20 years, lifetime) while there will be two tiers of registration for juveniles (5 years or 10 years).

Due to the implementation of SB 384, persons falling under tier one (10 years) and tier two (20 years) will now have an opportunity to petition the courts to terminate their duty to register as sex offenders after completing the minimum mandatory period for registration. After January 1, 2021, registrants may request their local registering agencies to provide them with their tier notification letters.

Take note that even if you have met the minimum period of registration, termination of the duty to register is not automatic. You must first file a petition in court requesting for termination of the duty to register due to having completed the minimum period of registration. Without this petition and the court approving your petition, you must continue with registration until your petition is granted.

Important Dates to Note for SB 384:

January 1, 2021 – The CA DOJ will designate tier levels for registrants

July 1, 2021 – Tier one and Tier two registrants who meet the minimum period of registration may now file petitions to terminate duty to register in the superior court in the county where they may reside

January 1, 2022 – registrants will be displayed in the California Megan’s Law website

What is “Duty to Register”?

A person required to register as a sex offender due to a conviction for the commission of a sex crime must report annually to their local law enforcement agency within 5 days of their birthday. You will need your name, primary address, and the crime that triggered the registration requirement. The California Department of Justice will then monitor your compliance with the registration requirements.

In addition to the registration requirements, your information will become available to the public over the Internet on the DOJ's "Megan's Law" website.[2] However, the display of your information on this website will still depend on the specific sex offense for which you were convicted.

You will have to notify your local law enforcement agency each time you are moving to a new residence.[3] If you have no permanent address, you will have to give notification at least once every 30 days, to update the local law enforcement agency of the area in which you are physically present.[4] If you are present in a California college or campus, you must inform the campus police of your presence.[5] If you intend to move to a different state, you must inform your local law enforcement agency of your intent to move at least 5 days prior to your intended moving date.[6] If you change names, you must inform the local law enforcement agency within five days of the change.[7] If you are deemed a sexually violent predator, you must update your information and report every 90 days to your local law enforcement agency.[8] These are only some of the specific requirements that you must fulfill once you are a registered sex offender and are not limited to those mentioned.

Each Tier at a Glance

For quick reference, we explain each Tier below.

• Tier One (Duration – at least 10 years): These are people convicted of misdemeanor sex offenses or non-serious or non-violent felonies (ex. indecent exposure, lewd acts in public, misdemeanor sexual battery)
• Tier Two (Duration – at least 20 years): There are people convicted of specific sex crimes that are considered more serious than those crimes under Tier One. (ex. lewd and lascivious acts with a minor, sodomy or sexual penetration of a person who suffers from mental disability)
• Tier Three (Duration – lifetime): These are people convicted of serious or violent sex crimes, habitual sex offenders, or those considered as sexually violent predators (ex. rape, lewd and lascivious acts with a minor through force or fear, continuous sexual abuse of a child, sex trafficking of children)

By way of example, John Doe was convicted of indecent exposure in 2001 and has been registering as a sex offender since then. John Doe has no other sex crime in his record. By the year 2021, John Doe will have been registering as a sex offender for almost 20 years. Under SB 384, indecent exposure is a Tier one offense. By January 1, 2021, John Doe can now file a petition in court to request that his duty to register as a sex offender be terminated because he has met the minimum period of registration for Tier one registrants which is only 10 years.

How are Tiers determined?

The tiers will be determined based on the criteria contained in the amended Penal Code §290.[9] These include the type of crime committed, the number of times a person may have committed a sex offense, risk assessment scores, and other criteria contained in the said law.

How are Tier durations computed?

Under Penal Code Section 290(e), the mandated minimum period begins “on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment.” This does not include arrests that do not result in a conviction.[10]

In addition, “the minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under the [Sex Offender Registration Act (the Act)], and by three years for each felony conviction of failing to register under this act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that person’s release from incarceration, placement, or commitment, including any related civil commitment.”[11]

If a registrant obtains another conviction requiring registration prior to an order to terminate the registrant from the registry, the applicable tier shall be the highest tier associated with the convictions.

What are some specific crimes falling under each Tier?

Below are some examples of crimes falling under each Tier. The crimes for each tier are not limited to what is listed below and may include other crimes. (For example: A judge ordered that you register as a sex offender for a crime that is not considered a sex crime because the judge believes that the crime was motivated by sexual compulsion or for sexual gratification.[12])

Tier One:

• Penal Code 243.4 – misdemeanor sexual battery
• Penal Code 243.4 – felony sexual battery (ex. victim is “institutionalized for medical treatment and who is seriously disabled or medically incapacitated”)
• Penal Code 266 - enticing a minor into a “house of prostitution”
• Penal Code 266c - inducing sex by “fraud or fear”
• Penal Code 286 – misdemeanor and felony sodomy (without force)
• Penal Code 288a – misdemeanor oral copulation felony oral copulation (without force)

Tier Two

• Penal Code 285 - incest
• Penal Code 261 - rape (victim at least 18 and “incapable of giving consent due to a mental disorder or developmental or physical disability”)
• Penal Code 286 - sodomy (victim is incapable of giving legal consent because of a mental disorder or developmental or physical disability), sodomy with a minor under 14 and over 10 years younger than the defendant (without force)
• Penal Code 288 – “lewd and lascivious acts” with a minor under 14
• Penal Code 288a - oral copulation (victim incapable of giving legal consent because of a mental disorder or developmental or physical disability), oral copulation with a minor under 14 and more than 10 years younger than the defendant (without force)
• Penal Code 288.3 – “contact or communication with minor with knowledge and intent to commit specified offenses punishable by imprisonment”

Tier Three:

• Penal Code 190.2 – murder committed during the commission or attempt of rape or other forcible sex crime such as Penal Code §261, 286, 288, 288a, or 289
• Penal Code 207 and 209 – kidnapping while committing or trying to commit rape or another forcible sex crime such as Penal Code §261, 286, 288, 288a, or 289
• Penal Code 220 – assault with intent to commit a felony sex offense (not including assault to commit mayhem)
• Penal Code 236.1 - sex trafficking of children when the defendant commits Penal Code §236.1 (b) or (c)
• Penal Code 243.4 – felony sexual battery

What if my crime/offense is a non-California sex offense?

The tier will be determined based on an equivalent offense as committed under California law. If there is no equivalent for the registrant’s offense under California law, “the person shall be subject to registration as a tier two registrant, except that the person is subject to registration as a Tier 3 registrant if one of the following applies:

• The person’s risk level on the static risk assessment instrument (SARATSO), pursuant to Section 290.06, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
• The person was subsequently convicted in a separate proceeding of an offense substantially similar to an offense listed in subdivision (c) which is also substantially similar to an offense described in subdivision (c) of Section 667.5, or is substantially similar to Section 269 or 288.7.
• The person has ever been committed to a state mental hospital or mental health facility in a proceeding substantially similar to civil commitment as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.”[13]

What if I already completed the required registration period in another state? Will I still be required to register under California Law?

The short answer is yes. The registrant must show that he has completed the minimum mandated period of registration according to the Tier durations in California law. After completing the mandated minimum period, they will have to file a petition to terminate the duty to register as a sex offender to be removed from the registry.

What if I already completed my registration period in California and I decide to move, will I be required to register out-of-state?

The answer will depend on the state that you will be moving to. Since each state/jurisdiction has different registration requirements, it would be best to check first the registration requirements of the state that you intend to move to.

Who will be posted on the Megan’s Law website?

By January 1, 2022, Tier two and Tier three registrants are automatically posted on the website. Tier one registrants will not be posted to the Megan’s Law website; however, their registration information is known to registering agencies. If a determination is made that a registrant poses a risk to the community, the registering agency may possibly conduct community notification.

Who may avail of the exclusion from internet disclosure?

Registrants who meet the following requirements are eligible to apply for exclusion:

• “An offense for which the registrant successfully completed probation, provided that the registrant 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 registrant 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 registrant by the penis of the other or by any foreign object.
• An offense for which the registrant is on probation at the time of his or her application, provided that the registrant 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 registrant 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 registrant by the penis of the other or by any foreign object.”[14]

What if my petition for termination of duty to register is denied?

There is no need to lose hope because the petition can be refiled. The court will usually set the when the petition can be refiled but it is at least one year from the date of denial but not beyond five years.

Specified tier two and tier three registrants who have not met their mandated, minimum registration period, but who were eligible to petition based on specified circumstances, may file a petition to terminate duty to register. If the petition is denied, these registrants will be eligible to refile their petition from one to three years from the date of denial.[15]

What if my crime/offense prevents me from seeking relief under SB 384?

Tier three registrants normally cannot file a petition to terminate the duty to register as a sex offender. However, if you were deemed as a tier-three registrant based solely on risk level score (Static 99R) and not for a specific crime listed under Penal Code §1192.7 or §288, you can still file a petition to terminate duty to register as a sex offender after being registered for 20 years. The court will then make a determination whether continued registration for said Tier three registrant still serves the purpose of enhancing community safety.

In addition, depending on the circumstances surrounding your case, Second Chances Law Group APC can file an Equal Protection Challenge on your behalf in the Court of Appeals to secure your Constitutional rights with the aim of also availing of the new reliefs provided for under SB 384.

Examples of a successful equal protection challenge:

• A 22-year old man engaged in consensual oral copulation with a 16-year old minor. He pled guilty to felony oral copulation with a minor and was sentenced to probation and was also required to register as a sex offender. On appeal, the registration requirement was challenged because those convicted of (consensual) sexual intercourse with a minor were not required to register as a sex offender. On appeal, the court removed the duty to register as a sex offender as it violated the man’s right to equal protection.[16]
• A man convicted of violating Penal Code 288 (a) was prohibited from filing a certificate of rehabilitation while other similarly situated persons, who have committed more serious crimes under section 288.7 were allowed to file for a certificate of rehabilitation. Upon appeal, the court agreed that prohibiting the man from applying for a certificate of rehabilitation while other similarly situated persons, who have committed more serious crimes, were allowed to file for a certificate of rehabilitation indeed violated the man’s equal protection rights.[17]

Are there other reliefs in law that I can avail of apart from those provided in SB 384?

SB 384 only takes effect by January 1, 2021, and we understand that some in some cases, waiting this long is not an option to those who have already suffered the dire consequences of being a registered sex offender whether it be restrictions in job opportunities, discrimination from the community, restriction in travel and living arrangements, loss of gun rights, to name a few. These other reliefs can be availed of now, and its availability will depend on the circumstance of your case.

Expungement

Under Penal Code §1203.4, a person can file a petition to dismiss a previous conviction after having successfully completed the probation period. This effectively removes the charge and conviction off of your record. However, not all crimes/offenses can qualify for expungement under Penal code §1203.4 and it requires that you are granted probation and successfully complete probation. Those who were sentenced to prison cannot avail of this relief. In addition, even if you have successfully expunged the conviction of your record, you still be required to continue with registration.

Certificate of Rehabilitation

Once you have successfully obtained a Certificate of Rehabilitation, your duty to register will be terminated. However, similar to expungement under Penal Code §1203.4, not all crimes/offenses can qualify for a Certificate of Rehabilitation.

It requires that you meet certain criteria before you can avail of a Certificate of Rehabilitation namely:

• You have successfully completed parole or probation
• You have successfully obtained a dismissal/expunged your conviction
• You have not been incarcerated again after your conviction was dismissed
• You are not on probation for any other crime/offense
• You have been living in California for at least 5 years

Governor’s Pardon

If you do not qualify for a Certificate of Rehabilitation, you can file for a Gubernatorial Pardon.

No Judgment, Only Professionalism

To know more about sex offender registration and if you believe that you or a loved one require help in seeking legal reliefs from the devastating effects of sex offender registration, we invite you to contact us at Second Chances Law Group, APC. It is all-important to hire an experienced, and aggressive and seasoned private defense lawyer to fight your case.

We always make our clients feel right at home and we encourage you to take comfort in the fact that you have a dedicated advocate on your side at Second Chances Law Group, APC. Our highly-experienced lawyers at Second Chances Law Group, APC will help ensure that your Constitutional rights are protected. Each of our clients will receive personalized attention, complete discretion, and trained staff working to provide the best legal assistance available.

Our only job is to defend you with maximum competence, diligence, and zealousness. Do not hesitate to call (626) 827-7222 for the representation you need.