NEW LAW TAKES EFFECT JANUARY 1, 2021 THAT COULD LEAD TO YOU BEING REMOVED FROM THE REQUIREMENT TO REGISTER AS A SEX OFFENDER
Being a registered sex offender can have devastating consequences to your chances of living a truly meaningful life. Since its enactment in 1947, California Penal Code 290 requires convicted sex offenders to register as a sex offender with the state for life. Every month our law firm Wallin & Klarich receives many calls from PC 290 registrants in desperate need of our help.
In many cases, these are people who are not able to find a job. They cannot live around their children (or stepchildren) because someone finds out about their past history and notifies authorities. They have difficulty maintaining relationships because people report to friends and lovers that they are registered sex offenders.
California lawmakers have introduced State Bill 384 (SB384), a tiered sex offender registration system that will take the place of the current sex offender registry in 2021. This new law will make it possible for a high percentage of PC 290 registrants to have a real shot at being removed from the CA PC290 Sex Offender registry!
HOW DOES SB384 HELP ME NO LONGER HAVE TO REGISTER AS A SEX OFFENDER?
With SB384, every PC 290 registrant will now be placed in one of 3 “tiers”. If you are placed in tier one then you can retain Wallin & Klarich to petition the court as of July 1, 2021 and ask that you be removed from your obligation to register ten years from the date you were released from custody. If you are placed in tier two you can hire an experienced Wallin & Klarich attorney if it has been twenty years since you were released from custody. Unfortunately, if you are in tier three you will still have a lifetime registration requirement. However, we still maybe be able to help you convince a judge to lower your tier which would allow you to petition the court for removal if you would qualify under that lower tier.
HOW WILL I KNOW WHAT TIER I HAVE BEEN PLACED IN WITH SB384?
You formally will be notified after January 1, 2021 by the California Department of Justice. However, we have provided a list of the “sex offense” penal code numbers and which tier it appears they will fall in.
|Penal Code Section||Offense Description||Likely Adult Tier|
|187||Murder while committing or attempting, 286, 288, 287, 288a, 289, or rape [no statute specified]||T3|
|207 or 209||Kidnapping, when committed with intent to violate 261, 286, 288, 288a, or 289||T3|
|220(a),(b)||Assault, or assault in connection with a first-degree burglary, with intent to commit rape, sodomy, oral copulation [statutes not specified], or any violation of 264.1, 288, or 289||
|236.1(b)||“Human trafficking” – violating another’s personal liberty to effect violation of 266, 266h, 266i, 266j, 267, 311.1 through 311.6, or 518 [extortion, not registrable]||
|236.1(c)||“Human trafficking” – inducing a minor to engage in a commercial sex act to effect violation of 266, 266h, 266i, 266j, 267, 311.1 through 311.6, or 518 (extortion, not registrable)||
|243.4(a)||Sexual battery (sexual touching) when victim unlawfully restrained [wobbler]||T3 if felony;
T1 if misdemeanor
|243.4(b)||Sexual battery of victim institutionalized for medical treatment [wobbler]||T1|
|243.4(c)||Sexual battery when misrepresenting that it is for a medical purpose [wobbler]||T3 if felony;
T1 if misdemeanor
|243.4(d)||Sexual battery by causing victim to touch intimate parts of another [wobbler]||T3 if felony;
T1 if misdemeanor
|243.4(e)||Misdemeanor sexual battery||T1|
|243.4(j)||Sexual battery with minor, with prior 243.4 conviction [felony]||T1|
|261(a)(1)||Rape of a non-spouse incapable of giving consent because of mental disorder or disability||T1 or T2|
|261(a)(2)||Forcible rape of a non-spouse||T3|
|261(a)(3)||Rape of non-spouse incapable or resisting because of intoxication||T3|
|261(a)(4)||Rape of a non-spouse unconscious of the nature of the act||T3|
|261(a)(5)||Rape when consent procured by fraud||T1 or T2|
|261(a)(6)||Rape of a non-spouse under threat of future retaliation||T2, but T3 if sentenced under 667.61 or 667.71|
|261(a)(7)||Rape of non-spouse under threat of government authority||T1 or T2|
|262(a)(1)||Rape of a spouse, if forcible and defendant sentenced to prison||T3|
|262(a)(4)||Rape of a spouse under threat of future retaliation [not listed as registerable in 290(c)]||May not be tiered, but T3 if sentenced under 667.61 or 667.71|
|264(c)(1)-(2)||Rape of a minor (as defined in 261 or 262)||T3|
|264.1||Acting in concert with others by force or violence to violate 261, 2262, 0r 289||T3|
|266||Inveigling a chaste unmarried female under 18 into a house of ill fame [wobbler]||T1|
|266c||Inducing someone to engage in intercourse, penetration, oral copulation, or sodomy by false statements meant to induce fear||T1|
|266h(b)||Pimping a minor; deriving income from a prostitute who is a minor||T3|
|266i(b)||Pandering a minor||T3|
|266j||Procuring a child under 16 for a lewd or lascivious act, as specified||T3|
|267||Abducting a person under 18 from their legal guardian for purpose of prostitution||T3|
|269||Aggravated sexual assault of a minor 14 years or younger by someone 7 years older||T3|
|272||Contributing to the delinquency of a minor or luring a minor under 14 away from home, if involves lewd or lascivious conduct||T3|
|285||Incest, when both participants are 14 or older||T2|
|286(b)(1)||Sodomy with person under 18 [misdemeanor or wobbler]||T1|
|286(b)(2)||Sodomy by person over 21 against person under 16 [felony]||T1|
|286(c)(1)||Sodomy with person who is under 14 and no more than 10 years younger than offender||T2, but T3 if sentenced under 667.61 or 667.71|
|286(c)(3)||Sodomy with fear of retaliation||T2, but T3 if sentenced under 667.61|
|286(d)||Sodomy in concert with force or fear of retaliation||T3|
|286(e)||Sodomy while in jail or state prison [misdemeanor]||T1|
|286(f)||Sodomy with victim unconscious to the nature of the act||T3|
|286(g)||Sodomy with victim who has disability or mental disorder||T2|
|286(h)||Sodomy, where both victim and offender confined to institution for disorder or disability [wobbler?]||T2|
|286(i)||Sodomy with intoxicated victim unable to resist||T3|
|286(j)||Sodomy when consent procured by fraud [felony]||T1|
|286(k)||Sodomy under threat of governmental authority [felony]||T1|
|288(a)||Nonforcible lewd or lascivious act with child under 14 with sexual intent||T2 if 1st offense, but T3 if under 667.61 or 667.71; T3 if 2nd offense|
|288(b)||Forcible lewd or lascivious act with child under 14 or dependent person||T3|
|288(c)||Nonforcible lewd or lascivious act with victim 14 or 15 years old, and offender more than 10 years older; or nonforcible lewd acts against dependent person by caregiver [wobbler]||T3|
|288a(b)(1) or 287(b)(1)||Oral copulation with person under 18 [wobbler?]||T1|
|288a(b)(2) or 287 (b)(2)||Oral copulation with person under 16 when offender is over 21 [felony]||T1|
|288a(c)(1) or 287(c)(1)||Oral copulation with person under 14 when offenders is more than 10 yrs older||T2, but T3 if sentenced under 667.71|
|288a(c)(2) or 287(c)(2)||Forcible oral copulation||T3|
|288a(c)(3) or 287 (c)(3)||Oral copulation under threat of future retaliation||T2, but T3 if sentenced under 667.61 or 667.71|
|288a(d) or 287(d)||Oral copulation in concert with force, under threat of retaliation, or victim is incapable of giving consent||T3|
|288a(e) or 287(e)||Participates in oral copulation while in jail or state prison [misdemeanor]||T1|
|288a(f) or 287(f)||Oral copulation with victim unconscious of the nature of the act||T3|
|288a(g) or 287(g)||Oral copulation with victim who has disability or mental disorder||T2|
|288a(h) or 287(h)||Oral copulation when both offender and victim are in institution for disability or disorders [misdemeanor]||T2|
|288a(i) or 287(i)||Oral copulation with intoxicated or drugged victim incapable of resisting||T3|
|288a(j) or 287(j)||Oral copulation when consent procured by fraud [felony]||T1|
|288a(k) or 287(k)||Oral copulation under threat of government authority [felony]||T1|
|288.2||Providing “harmful material” to a minor or person believed to be a minor [wobbler’ only felony is registerable]||T3|
|288.3||Communication with a minor with intent to violate 207, 209, 261, 264.1, 273a, 286, 287, 288, 288a, 288.2, 289, 311.11, 311.2, 311.4 or 311.11||T3 (absent exception)|
|288.4||Arranging a meeting with a minor or person believed to be a minor with intent to commit sex offense [misdemeanor if meeting not completed, otherwise felony; felony if defendant has prior registerable conviction]||T3|
|288.5||Continuous sexual abuse of a child (3 or more acts of sexual abuse in less than 3 months with a child under 14 with whom one lives or has regular access)||T3|
|288.7||Intercourse with a victim 10 years of age or younger||T3|
|289(a)(1)||Forcible sexual penetration||T3|
|289(a)(2)||Sexual penetration under threat of retaliation||T2, but T3 if sentenced under 667.61|
|289(b)||Sexual penetration with victim who has disability or mental disorder||T2|
|289(c)||Sexual penetration where both victim and offender confined to institution for disorder or disability||T1|
|289(d)||Sexual penetration with victim unconscious of the nature of the act||T3|
|289(e)||Sexual penetration with intoxicated or drugged victim incapable of resisting||T3|
|289(f)||Sexual penetration when consent procured by fraud [felony]||T1|
|289(g)||Sexual penetration with threat of government authority [felony]||T1|
|289(h)||Participation in sexual penetration with person under 18 [misdemeanor]||T1|
|289(i)||Person over 21 who participates in sexual penetration with person under 16||T1|
|289(j)||Sexual penetration with victim under 14 and more than 10 years younger than defendant||T3|
|311.1||Distribution, exchange, or exhibition of obscene matter depicting minor engaging in or simulating sexual conduct [wobbler]||T3 if felony;
T1 if misdemeanor
|311.2(b)||Possession, production, or distribution for commercial consideration, matter that depicts a minor engaging in or simulating sexual conduct [felony]||T3|
|311.2(c)||Possession, production, or distribution for commercial consideration, matter that depicts a minor engaging in or simulating sexual conduct, shown to or exchanged with an adult [wobbler on 1st offense; felony on 2nd offense]||T3|
|311.2(d)||Possession, production, or distribution for commercial consideration, matter that depicts a minor engaging in or simulating sexual conduct, shown to or exchanged with a minor [felony]||T3|
|311.3||Sexual exploitation of a child (knowingly develops, duplicates, prints, or exchanges any representation that depicts a minor engaged in sexual conduct) [misdemeanor, unless prior related offense]||T3|
|311.4(a)-(c)||Hiring or using a minor for acts specified in 311.2 [wobbler]||T3|
|311.11||Possessing or controlling any matter depicting minor engaged in or simulating sexual conduct [wobbler]||T3 if felony; T1 if misdemeanor|
|314||Exposing oneself willfully and lewdly where others may be offended or annoyed, or assists another in doing so [misdemeanor, unless prior conviction for 314 or 288]||T1|
|647.6(a)-(c)||Annoying or molesting a child under 18 [misdemeanor on 1st offense; felony if done after entering dwelling, or defendant has prior sex offense conviction;||T1 (1st conviction); T2 (second conviction)|
|653f(c)||Soliciting another to commit a specified sex offense, including forcible rape, sodomy or oral copulation or any violation of 264.1, 288, or 289 [felony]||T3|
|Exceptions and Enhancements|
|2nd “violent felony”||Any second, subsequent conviction for the following violent felonies as defined by 667.5(c): 187, 207, 209, 220, 261(a)(2), (a)(6); 262(a)(1), (a)(4); 286(c), (d); 287(c), (d); 288(a), (b); 288a(c), (d); 289(a), (j); 288.5; 261.4||T3|
|667.61||Any sex offense with a life sentence, or a sentence of 15 years to life, sentenced pursuant to 667.61. Section 667.61 provides enhanced penalties for violating 261(a)(2), (a)(6); 262(a)(1), (a)(4); 264.1; 286(c)(2), (c)(3), (d); 287(c)(2), (c)(3), (d); 288(a), (b); 288a(c)(2)(c)(3), (d); 288.5; 289(a)|
|667.71||A “habitual sex offender” punished pursuant to 667.71 upon a second, separate conviction for violating 207(b); 208(d); 209(b); 261(a)(2), (a)(6); 262(a)(1), (a)(4); 261.4; 269; 286(c),(d); 288(a), (b); 288a(c), (d), 288.5; 289(a), (j)||T3|
|SARATSO score||A SARATSO score “well above average at the time of release”||T3|
|W&I § 6600||A “sexually violent predator”||T3|
|290.004||A “mentally disordered sex offender, or a plea of not guilty by reason of insanity”||T3|
WHAT IF I HAVE BEEN CONVICTED OF OTHER CRIMES SINCE REGISTERING AS A SEX OFFENDER UNDER PC290?
Anytime you spend in custody for any new crime is added to the ten or twenty year “time period requirement”. However it does not disqualify you from filing a motion to be relief after that time is added to the required time period. If you were convicted of felony failure to register as a sex offender then you have to add 3 years to the total time period before you can apply. If you were convicted of a misdemeanor failure to register offense you add one year to the otherwise required time period.
WHERE WILL WALLIN & KLARICH FILE THE PETITION TO HAVE ME REMOVED FROM THE REGISTRY?
The law provides that the petition to remove you from the registry will be filed in the county where you reside at the time the petition is filed.
HOW DOES THE COURT DETERMINE WHETHER OR NOT MY PETITION WILL BE GRANTED?
If the District Attorney opposes the petition that we file on your behalf the court may consider many factors including all of the below:
- The nature and facts of the registerable offense;
- the age and number of victims;
- whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours);
- criminal and relevant noncriminal behavior before and after conviction for the registerable offense;
- the time period during which the person has not reoffended;
- successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program;
- and the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.
- Any judicial determination made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.
WHAT IF THE JUDGE DENIES MY PETITION?
If your petition is denied the court will set a time period in which you can file a new petition. The court must impose a minimum of a one-year “delay” before you can file a new petition and the maximum “delay” they can impose is five years.
WHAT IF I AM PLACED IN TIER 3? WHAT CAN WALLIN & KLARICH DO FOR ME?
In many cases, it will be possible for tier three registrants to petition the court to ask that they be removed from the registry after 20 years. You can contact our office for more details as to how that will be determined.
WILL ALL COUNTIES IN CALIFORNIA HAVE THE SAME PROCEDURES
No. Each county will establish their own specific rules as to how this new legal procedure will be implemented in their county. It will be critical to contact our office for guidance in this regard.
WHEN CAN I APPLY TO BE REMOVED FROM THE REGISTRY
If you qualify by July 1, 2021, then that is when you will be able to apply for the first time. However, as you can see from the different criteria the court will require if a hearing is required there is much work to be done to properly prepare a motion that will stand a good chance of being granted.
Anyone who has to register per PC 290 has had their lives negatively impacted by this legal requirement. We are beginning to set up private virtual consultations to discuss your specific case at this time. There is a $250.00 fee for this case evaluation. When you hire our law firm to then prepare and argue the motion on your behalf that $250.00 can be applied to the retainer fee.
Don’t you think it is worth it to take the first step to determine if you can get removed from the registry so you can move on with our life in a positive way?
Contact us toll-free at 877-466-5245 so we can begin to answer your questions.