Existing law, the Sex Offender Registration Act, requires a person convicted of specified sex offenses to register with local law enforcement authorities and update that registration, as specified. Existing law requires that a person who is required to register be informed of his or her duty to register prior to his or her release, discharge, or parole from confinement in specified institutions, when he or she is released on probation, or when he or she is granted conditional release without supervised probation, or discharged upon payment of a fine.

This bill would require that the person be informed of his or her duty to register only if the release, discharge, or parole, as applicable, is related to a sentence imposed as the result of a conviction for an offense for which the person is required to register under the act, as specified.

Date of Hearing: March 29, 2016

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON

, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY: Specifies that law enforcement only has a duty to inform an offender of his or her duty to register as a sex offender when he or she is released from custody for the underlying offense requiring registration. Specifically, this bill: requires that the person be informed of his or her duty to register only if the release, discharge, or parole, as applicable, is related to a sentence imposed as the result of a conviction for an offense for which the person is required to register under the Sex Offender Registration Act (Act).

EXISTING LAW:

1. Specifies that any person who is released, discharged, or paroled from a jail, state or federal prison, school, road camp, or other institution where he or she was confined, who is required to register pursuant to the Act, shall, prior to discharge, parole, or release, be informed of his or her duty to register under the Act by the official in charge of the place of confinement or hospital, and the official shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register under the Act has been explained to the person. (Pen. Code, § 290.017, subd. (a).)
   
2. Specifies that the official in charge of the place of confinement or hospital shall obtain the address where the person expects to reside upon his or her discharge, parole, or release and shall report the address to the Department of Justice. The official shall at the same time forward a current photograph of the person to the Department of Justice. (Pen. Code, § 290.017, subd. (a).)
   
3. Requires that the official in charge of the place of confinement or hospital shall give one copy of the form to the person and shall send one copy to the Department of Justice and one copy to the appropriate law enforcement agency or agencies having jurisdiction over the place the person expects to reside upon discharge, parole, or release. (Pen. Code, § 290.017, subd. (b).)
   
4. States that if the conviction that makes the person subject to the Act is a felony conviction, the official in charge shall, not later than 45 days prior to the scheduled release of the person, send one copy to the appropriate law enforcement agency or agencies having local jurisdiction where the person expects to reside upon discharge, parole, or release; one copy to the prosecuting agency that prosecuted the person; and one copy to the Department of Justice. The official in charge of the place of confinement or hospital shall retain one copy. (Pen. Code, § 290.017, subd. (b).)
   
5. Provides any person who is required to register pursuant to the Act and who is released on probation, shall, prior to release or discharge, be informed of the duty to register under the Act by the probation department, and a probation officer shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register has been explained to him or her. (Pen. Code, § 290.017, subd. (c).)
   
6. States that the probation officer shall obtain the address where the person expects to reside upon release or discharge and shall report within three days the address to the Department of Justice. The probation officer shall give one copy of the form to the person, send one copy to the Department of Justice, and forward one copy to the appropriate law enforcement agency or agencies having local jurisdiction where the person expects to reside upon his or her discharge, parole, or release. (Pen. Code, § 290.017, subd. (c).)
   
7. States that any person who is required to register pursuant to the Act and who is granted conditional release without supervised probation, or discharged upon payment of a fine, shall, prior to release or discharge, be informed of the duty to register under the Act in open court by the court in which the person has been convicted, and the court shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register has been explained to him or her. If the court finds that it is in the interest of the efficiency of the court, the court may assign the bailiff to require the person to read and sign forms under the Act. The court shall obtain the address where the person expects to reside upon release or discharge and shall report within three days the address to the Department of Justice. The court shall give one copy of the form to the person, send one copy to the Department of Justice, and forward one copy to the appropriate law enforcement agency or agencies having local jurisdiction where the person expects to reside upon his or her discharge, parole, or release. (Pen. Code, § 290.017, subd. (d).)
   
8. 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).):
   
   1. 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;
      
   2. Fingerprints and a current photograph taken by the registering official;
      
   3. The license plate number of any vehicle owned by, regularly driven by or registered in the name of the registrant;
      
   4. Notice to the person that he or she may have a duty to register in any other state where he or she may relocate; and,
      
   5. 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.
      
9. 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:
   
   1. 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.
      
   2. 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.
      
   3. 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.
      
   4. 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. (Pen. Code, § 290.011, subds. (a) to (d).)
      
10. 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).)
    
11. 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).)
    
12. 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, two or three years. (Pen. Code, § 290.018, subds. (a)&(b).)
    
13. Provides that the DOJ shall make available information concerning persons who are required to register as a sex offender to the public via an internet website. The DOJ shall update the website on an ongoing basis. Victim information shall be excluded from the website. (Pen. Code § 290.46.) The information provided on the website is dependent upon what offenses the person has been convicted of, but generally includes identifying information and a photograph of the registrant.
    
14. Generally prevents the use of the information on the website from being used in relation to the following areas: (Pen. Code, § 290.46, subd. (l)(2).)
    
    1. Health insurance;
       
    2. Insurance;
       
    3. Loans;
       
    4. Credit;
       
    5. Employment;
       
    6. Education, scholarships, or fellowships;
       
    7. Housing or accommodations; and
       
    8. Benefits, privileges, or services provided by any business establishment.
       

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, "Regardless of their reason for their incarceration, defendants must be re-noticed of their duty to re-register as a sex offender upon immediate release from incarceration. This creates an unnecessary administrative headache for law enforcement officials who are required to re-notify offenders every time they are released from custody. AB 2008 would simply require that the defendant be informed of his or her duty to register only if the release, discharge, or parole, is related to a sentence imposed as the result of a conviction for an offense for which the person is required to register as a sex offender, ultimately relieving the unnecessary burden law enforcement officials are now required to carry."
   
2. Sex Offender Registration and the Megan's Law Website: According to a 2014 report by the California Sex Offender Management Board^[1], the intent of registration was to assist law enforcement in tracking and monitoring sex offenders since they were viewed as the group most likely to commit another sex offense. It was thought that having their names and addresses known to law enforcement and with the expansion of community notification also available to the public would dissuade them from committing a new offense, enable members of the public to exercise caution around them, enable law enforcement to monitor them and, if necessary, solve new sex offense cases more readily. Although research suggests that use of a registry may help law enforcement solve sex crimes against children involving strangers more quickly, United States DOJ statistics tell us that most crimes against children (about 93%) are committed not by a stranger but by a person known to the child and his or her family, usually an acquaintance or family member.
   
   Since 1947, earlier by far than any other state, California has required “universal lifetime” registration for persons convicted of most sex crimes. (Pen. Code, § 290.) Though every other state has instituted some form of registration since then, California is among only four states which require lifetime registration for every convicted sex offender, no matter the nature of the crime or the level of risk for reoffending. Almost all other states use some version of a “tiering” or “level” system which: 1. recognizes that not all sex offenders are the same, 2. provides meaningful distinctions between different types of offenders and 3. requires registration at varying levels and for various periods of time. There are nearly 100,000 registrants today in California, a number accumulated over the past 66 years since the Registry was created in 1947. In 2004 California began to provide pictures and other identifying information on the Megan’s Law website for about 80% of registrants. (www.meganslaw.ca.gov)
   
   There are about 98,000 registered sex offenders on California’s registry. About 76,000 live in California communities and the other 22,000 are currently in custody. Of these offenders, 80% are posted on the state’s Megan’s Law web site with their full address or ZIP Code and other information, depending upon the offense they committed. About 20% are not posted or are excluded from posting on the web site by law, again depending on the conviction offense. Posting on the web site does not take into account years in the community without reoffending, the offender’s risk level for committing a new sexual or violent crime, or successful completion of treatment. About one-third of registered offenders are considered “moderate to high risk” while the remaining two-thirds are “moderate to low risk” or “low risk.” Local police departments and sheriff’s offices are charged with managing the registration process. Registered sex offenders must re-register annually on their birthdays as well as every time they have a change of address. Transient sex offenders re-register every 30 days and sexually violent predators every 90 days. Registration information collected by law enforcement is sent to the California Department of Justice (DOJ) and stored in the California Sex and Arson Registry. If an offender’s information is posted online and he fails to register or re-register on time, he will be shown as “in violation” on the Megan’s Law web site. When proof is provided by local law enforcement to DOJ of a registrant’s death, he or she is removed from the registry. Every ten years since the Registry was first established has been marked by a dramatic increase in the number of registrants.
   
   As noted above, the original goal of registration was to assist law enforcement in tracking and monitoring sex offenders. Over time, registration was expanded to include community notification and also began to encompass a wider variety of crimes and behaviors. Due to these changes, research has focused on exploring the changes in sex 4 CASOMB “Tiering Background Paper” offender registration laws and this has resulted in a constantly growing body of research that has altered the perspective on sex offender registration. This research has made it clear that:
   

• The sexual recidivism rate of identified sex offenders is lower than the recidivism rate of individuals who have committed any other type of crime except for murder.
• Not all sex offenders are at equal risk to reoffend. Low risk offenders reoffend at low rates, high risk offenders at much higher rates.
• It is possible to use well-researched actuarial risk assessment instruments to assign offenders to groups according to risk level. (i.e. Low, Medium, High.)
• Risk of a new sex offense drops each year the offender remains offense-free in the community. Eventually, for many offenders, the risk becomes so low as to be meaningless and the identification of these individuals through a registry becomes unhelpful due to the sheer numbers on the registry. Research has identified differing time frames of decreased risk for the various categories of offenders (i.e. low, medium, high).
• Research on both general and sexual offenders has consistently indicated that focusing on higher risk offenders delivers the greatest return on efforts to reduce reoffending.

Completing a properly designed specialized sex offender treatment program delivered within the context of effective supervision reduces recidivism risk even further. In California, all registered sex offenders on parole or probation are now required by state law to enter and complete such a program.

1. People v. Toloy: In People v. Toloy (2015), Cal. App 4^th 1116, the California Court of Appeal for the 6^th Appellate District affirmed a decision in which defendant Thomas Toloy was convicted of failing to re-register as a sex offender after he had been released from county jail after a 60 day stint in custody. Mr. Toloy was not informed of his duty to re-register at the time he was released from custody. Under current law, any time a registrant is in custody for more than 30 days they have a duty to re-register their place of residence with local law enforcement. In Mr. Toloy's case, he returned to the residence he had lived in and been registered at, prior to his incarceration for 60 days in the county jail.

The court ruled that Mr. Toloy had been notified of his duty to re-register at the time he was initially registered as a sex offender, years prior. Therefore, the court determined he had actual notice of his duty to register. However the court found that law enforcement failed in their duty to notify him of his need to re-register the home he had previously registered prior to his 60 day incarceration. However, the court ruled that this duty by law enforcement was directory and not mandatory, and therefore Mr. Toloy could not use the failure of law enforcement to notify him as a defense. Therefore, the court ruled that Mr. Toloy's conviction was valid and they affirmed the lower court.

1. Argument in Support: According to the California State Sheriffs' Association, "For unknown reasons, language that specified that a person required to register as a sex offender must be notified of his or her ongoing duty to register only when released from custody for an offense requiring sex offender registration disappeared from the Penal Code. As such, the statue has technically required every registerable sex offender to be notified of the duty to register every time he or she is released from custody regardless of whether the current offense requires sex offender registration. This inexplicable error has unnecessarily increased workload on the part of custodial officers for no discernible benefit."
2. Argument in Opposition: According to the American Civil Liberties Union, "The American Civil Liberties Union of California regrets to inform you that we oppose AB 2008 which would delete the requirement that law enforcement notify a person of his or her duty to reregister under California’s sex offender law when released from custody after serving a sentence of 30 days or more. Given that the law requires a person to reregister even though his or her address remains the same and that failure to comply with this duty can be punished by up to lifetime imprisonment, we believe the Legislature made the right choice in 2007 when it imposed the requirement for law enforcement to tell people about the duty to reregister when they leave custody.

"Under current California law, a person who is required to register under Penal Code section 290 must reregister within five working days of his or her release after serving time in custody of 30 days or more, even if his or her residence has not changed and the registration on file with law enforcement is correct. (Penal Code sec. 290.015(a); see People v. Toloy (2015) 239 Cal.App.4^th 1116, 1119 [upholding conviction for failure to register under 290.015(a) even though the registration on file accurately reflected the defendant’s address].) To ensure that people understand their obligation to reregister, Penal Code section 290.017(a) requires law enforcement to inform a person of this duty on release from custody. AB 2008 would delete that notice requirement.

"The obligation to reregister upon release after serving 30 days or more in custody for any reason was added to Penal Code section 290 in 2006 (SB 1128 Alquist). The sex offender registry statute was reorganized the following year through SB 172 (Alquist) and that is when this specific notice requirement was added to the statutory scheme. As the Court of Appeals observed in People v. Toloy (2015) 239 Cal.App.4^th at p. 1121, this was a change from prior law which required notice only on release after serving a sentence for a crime that requires registration. The court explained:

'Section 290.017 was enacted in 2007. Before section 290.017’s enactment, former section 290 required notification when a person was released from custody only after being “confined because of the commission' of an offense requiring registration. (Former § 290, subd. (b), italics added; Stats. 2006, ch. 538, § 500, p. 4368; Stats. 1979, ch. 944, § 8, p. 3255.)

"The court concluded that the Legislature intended to change the notice requirement to apply every time a person leaves custody after 30 days or more, in order to further the objective of ensuring that people do in fact reregister. (Id. at pp. 1121-22.) The court also observed the logic of this choice:

"While one might hope that such notification would be “unnecessary” since the section 290 registrant would be aware of each and every aspect of his or her registration obligations, a timely reminder of the precise nature of those obligations is neither “superfluous” nor “confusing.” This is particularly true where the precise parameters of a section 290 registrant’s obligations may change over time, as they did when section 290.015 was enacted. (Ibid.)

"The court in Toloy went on to hold that the requirement to provide notice is 'directory rather than mandatory and therefore did not provide a defense to defendant.' (Id. at p. 1119.) In other words, while the statute directs law enforcement to provide this notice, failure to do so does not offer a defense to the crime of failing to reregister.

"The Legislature made a wise decision in 2007 when it included this notice provision. It is far from obvious or intuitive that a person would need to reregister after serving 30 days or more in custody, even if his or her residence has not changed and the registration on file with law enforcement is accurate. The facts of Toloy illustrate this point. While Mr. Toloy failed to reregister on release, he returned to reside at the exact same address as prior to his time in custody and his registration on file with law enforcement was accurate. Moreover, he had met with his parole officer and been equipped with a GPS tracking device which he wore continuously until the time of his arrest. Despite the fact that law enforcement knew his address and actually knew where he was every minute of every day, he was convicted for failing to reregister and sent to state prison for 32 months. Mr. Toloy was in some sense lucky: any failure to comply with the sex offender registration law can be charged as a felony and can be prosecuted under the Three Strikes Statute, potentially resulting in lifetime imprisonment.

"If the Legislature thinks it is important for people to undertake the administrative obligation to reregister upon release after serving a sentence of 30 days or more—even when law enforcement knows exactly where they are—then it seems reasonable and fair to ask law enforcement to assume the minor task of actually telling people this. If the Legislature doesn’t think this duty to reregister is important enough to warrant the small effort of telling people about it when they leave custody, than it should not be a felony that can result in lengthy state prison sentences up to and including lifetime imprisonment."

1. Prior Legislation:
   1. SB 172 (Alquist), Chapter 579, Statutes of 2007, made technical and clarifying changes to the Sex Offender Punishment, Control and Containment Act of 2006. Specifically, added the duty to notify offenders of their duty to re-register every time they are released from incarceration.
   2. SB 1128 (Alquist), Chapter 337, Statutes of 2006, created the "Sex Offender Punishment, Control and Containment Act of 2006" which makes several changes to the law relating to sex offenders. These included imposing a duty on law enforcement to inform offenders of their need to register as sex offenders.

REGISTERED SUPPORT / OPPOSITION:

Support

California State Sheriffs' Association

Opposition

American Civil Liberties Union

California Public Defenders Association

Legal Services for Prisoners with Children

Analysis Prepared by:

1. http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Background%20Paper%20FINAL%20FINAL%204-2-14.pdf ↑