SB 384: California's New Three-Tiered Approach to Sex Offender Registration
The sex offender registry rules have changed. California Senate Bill 384 takes effect on January 1, 2021 and creates a new three-tiered approach to sex offender registration.
Under prior law, defendants convicted of certain sex offenses were required to register for life as sex offenders under California Penal Code 290 PC.
Both community activists and law enforcement came to agree that this system was inefficient and not serving the original purposes of the sex offender registry as law enforcement spent the majority of its time on record keeping and monitoring of low risk and low-level offenders.
New three-tiered sex registration approach
Accordingly, California passed Senate Bill 384 on a bi-partisan basis. The new law, effective January 1, 2021, establishes a three-tiered approach based on offense of conviction and other relevant factors.
- Tier one requires sex offender registration for at least ten years for defendants convicted of low level sex crimes, such as misdemeanor indecent exposure.
- Tier two requires sex offender registration for at least twenty years for defendants convicted of mid-level sex crimes, such as lewd conduct with a minor.
- Tier three requires lifetime sex offender registration for defendant convicted of the most serious sex crimes, such as rape and sex trafficking.
The bill further provides a mechanism for those in tiers one and two – the lower risk tiers – to petition the court for removal from the sex offender registry after specified periods of time and if certain requirements are met.
In order to give readers a better understanding of California's new sex offender registration rules, our Los Angeles criminal defense lawyers are providing a detailed review below.
Tier One Sex Registration – Minimum 10 Years
Tier one covers the lowest risk level offenders under the new registration scheme. For the sake of brevity, a complete list of qualifying tier one offenders is not contained here, but in general these are non-violent, misdemeanor-level offenses.
Certain felony convictions also fall into tier one, but only if the offense would not qualify as a serious or violent felony under California law. Examples of tier one offenses include:
- Penal Code 243.4 PC – misdemeanor sexual battery,
- Penal Code 288a PC – misdemeanor oral copulation,
- Penal Code 266 PC – enticing a child into house of prostitution,
- Penal Code 266c PC - inducing sex by fraud,
- Penal Code 311.11 PC - misdemeanor possession of child pornography,
- Penal Code 314 PC – misdemeanor indecent exposure,
- Penal Code 288.4 PC – misdemeanor arranging a meeting with minor for lewd purposes,
- Penal Code 647.6 PC – first offense of annoying or molesting a child.
Besides the specifically enumerated tier one offenses, those who are ordered by a court to register pursuant to Penal Code 290 PC for an offense which is not specifically enumerated under that statute are presumed to be tier one offenders unless the court makes specific findings that a higher tier of registration is necessary for public safety.
Tier one offenders must register for a minimum of 10 years.
Tier Two Sex Registration – Minimum 20 Years
Tier two is addressed to more serious offenses that fall short of the most serious category reserved for tier three offenses.
In general, these are offenses which are considered either serious or violent felonies, but not the most serious sex offenses described below in the tier three designation.
Examples of tier two offenses include:
- Penal Code 261 PC – rape with victim at least 18 incapable of consent due to mental disorder or disability,
- Penal Code 288 PC – lewd acts with minor under 14,
- Penal Code 286 PC – sodomy with a minor under 14,
- Penal Code 285 PC – incest,
- Penal Code 289 PC - penetration with a foreign object when the victim is incapable of giving consent due to a mental disability,
- Penal Code 288.3 PC – contacting a minor to commit a felony,
- Penal Code 647.6 PC – annoying or molesting a child second or subsequent offense,
Tier two offenders are required to register for a minimum of 20 years.
Tier Three Registration – Lifetime
Tier three covers the most serious sex offenses as determined by the California legislature. These offenses are subject to lifetime registration and there is currently no mechanism to petition for removal from the registry for a tier three offense.
These offenses are often characterized by violence, threats, or the young age of the victim.
However, certain offenses which are typically thought of as non-violent are also covered by tier three. Examples of tier three offenses under the new tiered approach include:
- Penal Code 187 PC - murder committed in the attempted commission of rape,
- Penal Code 207 PC and 209 PC – kidnapping during commission of rape,
- Penal Code 266h PC and 266i PC – pimping and pandering with a minor,
- Penal Code 266j PC – transporting minor under 16 for lewd purposes,
- Penal Code 267 PC – taking a minor away for prostitution,
- Penal Code 220 PC – assault with intent to commit a felony,
- Penal Code 236.1 PC – sex trafficking of children,
- Penal Code 261 PC – most forms of rape,
- Penal Code 262 PC – spousal rape by use of force,
- Penal Code 288 PC – lewd acts with minor under 14 by force
- Penal Code 288.2 PC – sending harmful material to seduce a minor,
- Penal Code 288.5 PC – continuous sexual assault of a child,
- Penal Code 288.7 PC – sexual assault on a child under 10,
- Penal Code 311.11 PC – felony child pornography.
Tier three registration also applies to those sentenced to life in prison, to those deemed a habitual sex offender under Penal Code 667.71 PC, and to those whose Static-99 scores place them at well above average risk for being a danger to society.
Reduction in Time or Removal from California Sex Offender Registry
In addition to establishing the three-tier system, SB 384 provides several opportunities for reduction in registration time or for outright removal from the sex offender registry.
Removal from the sex registry is not automatic. Under new Penal Code 290.5 PC, anyone who is required to register for a tier one or a tier two offense may petition the court beginning in July 2020 to be removed from the registry.
To be eligible, the petitioner must have completed at least the minimum mandated period of registration.
Once received, law enforcement must provide a report to the prosecuting agency within 60 days concerning their recommendation on the petition.
The prosecuting agency in turn has 60 days after receiving law enforcement's report to request a hearing at which to object to the petition in cases where they believe public safety will be significantly enhanced by continued registration.
If the court denies the petition, it must set a period in which the petitioner may re-apply for termination from the registry. This time must be at least one year after the failed petition, but no more than five years after that time.
Other Potential Benefits Under New California Sex Registry Rules
There are additional potential benefits for tier two offenders seeking removal from the obligation to register as sex offenders.
Though a tier two offense states that it requires a minimum of 20 years' registration, if the offense involved:
- no more than one victim between the ages of 14 and 17,
- the offender was under 21 years old at the time of the offense,
- the offense was not a serious or violent felony, and
- the offender suffered no subsequent convictions.
Then, a defendant may be eligible to seek removal from the registry after only 10 years.
Finally, even a tier three offender may be able to receive relief if he or she was placed in tier three solely because of his or her elevated Static-99 risk assessment.
Contact Eisner Gorin LLP for Help with California Sex Offender Registration
In short, the new registration and removal scheme is complex. Additional issues outside the scope of this article, such as removal from the Megan’s Law website, are also addressed in SB 384. Failing to register is a separate crime.
Every case is different, and should be assessed on a case by case basis for an eligibility determination. If you, or someone you know, is required to register as a sex offender under Penal Code 290 PC and would like an initial consultation, contact our team of experienced Los Angeles criminal defense attorneys.
Eisner Gorin LLP is a top-rated criminal defense law firm that represents clients throughout Southern California, including Los Angeles County, Pasadena, Orange County, Long Beach, Ventura County, Riverside, and San Bernardino.
We are located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main San Fernando Valley office is located next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our firm for an initial consultation at (877) 781-1570.