Petitioning for Removal from California's Sex Offender Registry
Under prior law, most sex-related offenses under California's criminal law required lifetime registration as a sex offender pursuant to Penal Code § 290 and subsequent code sections.
Effective January 1, 2021, however, Senate Bill 384 modified the previous registration regime to create a three-tiered approach, with Tier 1 being the least serious and Tier 3 being the most serious.
Tier 1 registrants must register for a minimum of 10 years. Tier 2 registrants must register for a minimum of 20 years. Tier 3 registrants, in general, must still register for life.
However, some Tier 3 registrants are designated Tier 3 based on a sex offender risk assessment protocol, rather than by virtue of their crime of conviction.
This specific subset of Tier 3 registrants must register for a minimum of 20 years, similar to Tier 2 registrants.
Sex offenders who were designated due to a juvenile sustained petition rather than an adult court conviction must register for a minimum of either 5 or 10 years, depending on their offense.
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 that if, for example, the defendant was sentenced to state prison and required to register, the relevant date for computing the minimum registration period would be the date of release from state prison, not the date of conviction.
The calculation is further complicated by the fact that any subsequent period of incarceration for a new crime tolls, meaning stops, the clock from running.
Further, any conviction for failing to register as a sex offender automatically adds either one or three years to the clock, depending on whether the conviction is for a misdemeanor or a felony. Our Los Angeles criminal defense lawyers are reviewing the law below.
Eligibility to Petition the Court For Sex Registration Relief
Registrants are eligible to petition the court for relief from the requirement to register under Penal Code § 290 beginning on their next birthday after July 1, 2021.
Only Tier 1, Tier 2, and Tier 3 registrants who are Tier 3 because of a risk assessment, are eligible to file a petition.
Assuming the relevant time period has elapsed, the District Attorney's office may still object to the removal of the registrant from the sex offender registry.
Pursuant to Penal Code § 290.5, the prosecutor may urge the court to deny the petition by arguing that community safety will be “significantly enhanced,” by the defendant's continued registration.
In making this argument, the prosecutor will rely on factors such as:
- the nature and facts of the underlying offense,
- the age and number of victims,
- whether the victim was a stranger to the defendant at the time of the offense,
- the defendant's other criminal history,
- the length of time during which the defendant has not reoffended,
- successful completion of relevant sex offender treatment, if any, and
- the defendant's current risk score as determined by a standardized test such as a STATIC-99.
Hearing to Oppose Removal From Sex Registry
An opposed sex offender registration removal petition will lead to a litigated hearing.
The defendant and their attorney will have an opportunity to be heard by the court and to present any relevant evidence supporting the petition.
The prosecutor will also have this opportunity, and will likely rely on police reports, declarations, expert reports, and other relevant evidence to support the denial of the petition.
The court has substantial discretion in determining whether community safety will be significantly enhanced by continued registration.
How Does the Three-Tier Sex Registration Work?
Tier status for California criminal offenses is typically easy to determine as provisions of Penal Code § 290 list the specific code sections to which each Tier designation apply.
However, some individuals will be ordered by courts to register under Section 290 even if their offenses are not specifically listed in that section.
Pursuant to Penal Code § 290.006, those individuals are presumptively Tier 1 registrants unless the court finds reason to impose a higher Tier of registration.
Individuals convicted in other jurisdictions, meaning states other than California, in federal court, or in military court, may also be required to register.
These individuals are required to register according to the Tier they would have been placed under had the equivalent crime been committed in California.
As the laws in jurisdictions can vary significantly, it is possible that no direct analogue exists between the defendant's crime of conviction and California's criminal laws.
In those cases, the defendant is presumptively a Tier 2 registrant, absent a finding of higher than average risk which might indicate a Tier 3 registration.
Defendant's Who Are Ineligible for Sex Registry Removal
Finally, several factors can make a defendant categorically ineligible to file a petition for removal. Most obviously, a defendant is ineligible:
- if they have not met the minimum time requirements under Tier 1 or Tier 2 registration;
- if they have pending criminal charges which may change the Tier designation depending on disposition;
- defendants in custody are ineligible;
- defendants on parole, probation, or supervised release, are ineligible;
- Tier 3 lifetime registrants are ineligible.
The courts have just recently started addressing petitions for removal from the sex offender registry.
It is likely that litigation will follow and appellate court opinions will define the parameters of the court's discretion in granting or denying opposed petitions, among other issues.
If you, or someone you know, is interested in seeking removal from the sex offender registry, contact Eisner Gorin LLP at (310) 328-3776 for an initial consultation.