Petitioning for Removal from California's Sex Offender Registry
Under the previous law, most sex-related offenses in California required lifelong registration as a sex offender under Penal Code § 290 and related statutes.
Starting January 1, 2021, Senate Bill 384 changed this system to a three-tiered structure, where Tier 1 is the least severe and Tier 3 the most severe.
Tier 1 registrants must register for at least 10 years. Tier 2 registrants must do so for at least 20 years. Generally, Tier 3 registrants must register for life.
However, some Tier 3 individuals are classified based on a sex offender risk assessment protocol rather than their conviction, and these specific Tier 3 registrants must register for at least 20 years, similar to Tier 2.
Sex offenders designated due to juvenile petitions instead of adult court convictions are required to register for either 5 or 10 years, depending on their offense.
Determining the Start Date
Determining the start date of the relevant time period is not always straightforward. The minimum registration period begins after completion of any period of incarceration, including placement or commitment in a civil facility such as a treatment program, related to the conviction.
This means, for example, that if the defendant were sentenced to state prison and had to register, the key date for calculating the minimum registration period would be the release date from prison, not the sentencing date.
The calculation becomes more complex because any later incarceration for a new crime pauses the clock, stopping the period from running.
Additionally, a conviction for failing to register as a sex offender automatically extends the period by either one or three years, depending on whether the offense is a misdemeanor or a felony.
When is the Appropriate Time to File a Removal Petition?
Registrants can petition the court for relief from registration under Penal Code § 290 starting on their next birthday after July 1, 2021. Only Tier 1, Tier 2, and Tier 3 registrants—specifically those classified as Tier 3 due to a risk assessment—are eligible to file such a petition.
If the relevant time period has passed, the District Attorney's office can still oppose removing the registrant from the sex offender registry. Under Penal Code § 290.5, the prosecutor might ask the court to reject the petition, claiming that keeping the defendant registered will 'significantly enhance' community safety.
In constructing this argument, the prosecutor will consider factors like:
- The nature and details of the underlying offense,
- The age and number of victims,
- Whether the victim was a stranger to the defendant at the time,
- The defendant's prior criminal record,
- The duration since the last offense, successful completion of any relevant sex offender treatment, and
- The current risk score from a standardized test like STATIC-99.
Challenging a Removal Petition
An opposed sex offender registration removal petition will trigger a court hearing. During the hearing, the defendant and their attorney can present their case and submit relevant evidence to support the petition.
Likewise, the prosecutor will have the chance to respond, often using police reports, declarations, expert analyses, and other pertinent evidence to oppose the removal.
The court holds significant discretion in deciding whether maintaining registration will substantially improve community safety.
How to Determine Tier Status
Determining Tier status for California criminal offenses is usually straightforward because Penal Code § 290 specifies the applicable code sections for each Tier designation.
However, courts may order some individuals to register under Section 290 even if their offenses are not explicitly listed. According to Penal Code § 290.006, these individuals are generally considered Tier 1 registrants unless the court determines there are grounds to assign a higher Tier.
Individuals convicted in jurisdictions outside of California, such as in other states, federal court, or military court, may also need to register. They must register based on the Tier they would have been assigned if the same crime had been committed in California.
Since laws differ across jurisdictions, there might be no direct equivalent between the defendant's conviction and California's criminal statutes. In such cases, the defendant is typically considered a Tier 2 registrant unless there is evidence of a higher-than-average risk, which could suggest a Tier 3 registration.
Factors That Make You Ineligible to File a Petition
Several factors can automatically disqualify a defendant from filing a petition for removal. Most notably, a defendant cannot file if they have not satisfied the minimum time requirements for Tier 1 or Tier 2 registration.
Additionally, defendants with pending criminal charges that could affect their Tier designation, depending on the outcome, are ineligible. Those in custody are also ineligible, as are defendants on parole, probation, or under supervised release. Lastly, individuals registered for life under Tier 3 are ineligible.
Recently, courts have started hearing petitions for removal from the sex offender registry. It is anticipated that more litigation will follow, with appellate courts clarifying the limits of court discretion when approving or denying contested petitions, among other issues.
If you or someone you know is thinking about seeking removal from the registry, contact Cron, Israels & Stark for a consultation.
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