SB 384 FACT SHEET
Laura Arnold, Deputy Public Defender
November17, 2017
1. What is SB 384?
SB 384 is a bill passed on September 15 by the California Legislature and signed by Governor Brown on October 6, 2017. The bill “tiers” sex offender registration requirements, which, until now, have been lifelong for every offense and every offender.[1] A person’s tier depends, for the most part, on his or her underlying conviction or adjudication; i.e., the reason why he is required to register. The bill goes into effect on January 1, 2021.
For those whose crimes were committed when they were 18 or older, there will be 3 tiers of registration, based on specified criteria. Depending on a person’s assigned tier (primarily offense-based), an adult offender will have to register for at least 10 years, at least 20 years, or for life.
Juvenile offenders, other than those convicted in adult court, will be required to register for at least 10 years, except for those whose only “true finding” for a sex offense involved a violation of PC 647.6. Those offenders will be required to register for at least 5 years. Juvenile offenders convicted in adult court are treated as adult offenders in terms of period of registration.
2. How is the minimum period of registration for each tier calculated?
The time period begins on the date the person is released from incarceration, placement or commitment on a registerable offense. (What if the person is never incarcerated? Does it run from the date of sentencing?) The period “tolls” during any subsequent period of incarceration, placement or commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole (PRCS?) do not toll the required registration period.
Any misdemeanor conviction for failure to register extends the minimum time period by one year.
Any felony conviction for failure to register extends the minimum time period by three years.
Adult Offenders (PC 290 and 290.006)
1. Who falls in Tier 1 (10 years)?
a. A person who, when at least eighteen years of age, was convicted in a California court of a misdemeanor violation of any offense for which registration is required[2]; i.e. PC 314, 647.6, 243.4 (e)(1), 311.3, 311.10, and 311.11(a)
b. A person who, when at least eighteen years of age, was convicted of a felony violation of any offense, except for “strike” offenses (PC 667.5(c) and 1192.7(c)), unless that person’s particular offense places him or her in a higher tier; i.e. the Hofsheier offenses
c. A person ordered to register under PC 290.006 upon conviction for an offense which does not require mandatory registration, based on a finding that the crime was committed as a result of sexual compulsion or for purposes of sexual gratification, unless the court finds that the person should register in a higher tier.
2. Who falls in Tier 2 (20 years)?[3][4]
a. A person convicted of a felony violation of a PC 290 (c) offense which is also a “strike offense” (i.e., PC 288(a)), or
b. a person convicted of Incest (PC 285)
c. a person convicted of Sodomy with one legally incapable of giving consent due to a disorder or disability (PC 286(g) or (h)),
c. a person convicted of Oral Copulation with one legally incapable of giving consent due to a disorder or disability (PC 288a(g) or (h)),
d. a person convicted of Forcible Penetration of one legally incapable of giving consent due to a disorder or disability (PC 289(b)), or
e. a person convicted of Annoying/Molesting a Minor (PC 647.6), w/one or more prior convictions for that same offense separately brought and tried,
f. a person required to register in California due to his/her registration requirement in another jurisdiction for an offense not comparable to any PC 290(c) offense. (PC 290.005, subd. (c)), unless;
i. when released on the index sex offense, the person’s SARATSO score was “well above average”,
ii. the person was subsequently convicted of an offense “substantially similar” to a 290(c) offense which is also “substantially similar” to a violent felony (PC 667.5(c)) or to Aggravated Sexual Assault of a Child (PC 269) or a Specified Felony Involving a Child 10 (PC 288.7), or
iii. the person has ever been committed in a proceeding “substantially similar” to California’s SVPA.
3. Who falls in Tier 3 (lifetime registration)?[5]
a. a person convicted of any violation of an offense requiring mandatory registration, whowas previously convicted in a California court[6]of any felony offense listed in PC 667.5(c) for which mandatory registration is required, or for which discretionary registration was ordered under PC 290.006.
b. a person committed to a state mental hospital as a sexually violent predator, or
c. a person convicted of any of the following offenses[7]:
1. Murder in the commission of a specified felony sex offense
2. Kidnap with intent to commit a specified felony sex offense
3. Assault (PC 220)
4. Pimping a minor < 16 (PC 266h(b))
5. Pandering a minor < 16 (PC 266i(b))
6. Abduction of a minor for purpose of prostitution (PC 267)
7. Procurement of a minor (PC 266j)
8. Aggravated Sexual Assault of a Child < 14 by one 7 or more years older (PC 269)
9. Lewd and Lascivious Act with a minor < 14 by force (PC 288(b))
10. Lewd and Lascivious Act with a minor 14 or 15 by one 10+ years older (PC 288(c))
11. Knowingly Distributing Specified Harmful Matter to a Minor (PC 288.2)*
12. Contacting a Minor With Specified Intent (PC 288.3)[8]
13. Arranging a Meeting With a Person Believed to Be A Minor For Specified Purposes, including indecent exposure or engagement in lewd or lascivious behavior (PC 288.4.)*
14. Continuous sexual abuse of a child younger than 14 (PC 288.5)
15. Sexual intercourse or sodomy w/child < 10 (PC 288.7)
16. Solicitation (PC 653f)
17. a person whose SARATSO score, at the time of release on the index sex offense, is or was “well above average”
18. a person who is a habitual sex offender (PC 667.61)
19. a person who was convicted in separate proceedings of at least two violations of PC 288(a)
20. a person sentenced under PC 667.61
21. a person who is determined to be a mentally disordered sex offender (MDSO) or who has been found NGI for a registerable sex offense. (PC 290.004)
22. a person convicted of human trafficking of an adult or a minor for specified purposes (PC 236.1(b) and (c))
23. a person convicted in a California court of felony sexual battery by restraint, by defrauding, and/or under specified circumstances(PC 243.4(a), (c), or (d))
24. a person convicted of rape by force, drugs or alcohol, or with an unconscious victim (PC 261(a)(2), (a)(3), (a)(4)) or any type of rape where the victim was younger than 14 (PC 264(c)(1) or (c)(2))
25. a person convicted of forcible spousal rape (PC 262 (a)(1))
26. a person convicted of committing a specified forcible sex offense while acting in concert with another person (PC 264.1)
27. a person convicted of contributing to the delinquency of a minor with lewd or lascivious conduct (PC 272)*
28. a person convicted of sodomy by force, while acting in concert, by drugs or alcohol, with an unconscious person (PC 286 (c)(2), (d), (f), or (i))
29. a person convicted of foreign penetration by force, by drugs or alcohol, with an unconscious person, or V < 14 and D 10+ years older (PC 289 (a)(1), (d), (e), or (j))
30. a person convicted of a felony child pornography offense (PC 311.1, 311.11, 311.2 (b), (c), or (d), 311.3, 311.4, 311.10)
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Juvenile Offenders (PC 290.008)
1. When does a person have to register based on a juvenile offense that does not result in an adult court “conviction”?
a. Offense committed by a minor of any age.
b. True Finding must have occurred (either through admission or adjudication/trial) that the child committed one of the following crimes or a comparable offense in another state:
i. Assault with intent to commit specified felony (PC 220)
ii. Rape by force or threat to retaliate, rape by drugs and alcohol, rape of an unconscious person, rape of a mentally disordered person (PC 261(a)(1), (2), (3), (4), or (6))
iii. Sodomy of a minor, sodomy by force, or sodomy acting in concert (PC 286 (b)(1), (c), or (d))
iv. Lewd or Lascivious Act with a Minor (PC 288)
v. Continuous Sexual Abuse of a Minor (PC 288.5)
vi. Oral Copulation with a minor, by force, or while acting in concert (PC 288a(b)(1), (c), or (d))
vii. Forcible Sexual Penetration (PC 289(a))
viii. Annoying/Molesting a Child (PC 647.6)
ix. Kidnap for a specified felony (PC 207 or 209)
c. Child must have been adjudicated a ward of the juvenile court under WIC 602 based on true finding that he/she committed a specified offense, and thereafter must have been committed to the CDCR (DJJ) or a comparable facility in another state without thereafter honorably discharging DJJ parole.
Who is in Tier 1 (5 years)?
Any person adjudicated a ward and committed to the DJJ after a true finding that he or she committed a specified offense other than a serious or violent felony offense (PC 667.5(c) and 1192.7(c)). So, PC 647.6.
Who is in Tier 2 (10 years)?
All juveniles required to register, except those required to register based solely on a true finding for a violation of PC 647.6.
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Procedure for Termination (PC 290.5)
On what date can those whose mandated minimum period of registration petition to be terminated from the sex offender registry?
On or after a registrant’s birthday, beginning January 1, 2021, a tier one or tier two offender may file a petition in the superior court (or juvenile court, if the registration is pursuant to PC 290.008) in his/her county of residence[9], asking to be terminated from the sex offender registry.[10]
What are the requirements for a petition for termination?
A petition must contain proof that the petitioner is current with his/her registration and must be served on the law enforcement agency with which the person has last registered (“the registering law enforcement agency” and on the law enforcement agency[11] and the District Attorney in the county in which the person was convicted of the offense giving rise to his/her duty to register.
What happens once a petition has been filed?
1. The registering law enforcement agency and the law enforcement agency in the county of conviction must, within 60 days of receiving the petition, file a report, informing the district attorney and superior court whether the petitioner meets the minimum requirements for termination.
a. If the registering law enforcement agency’s investigation reveals a foreign conviction for which PC 290.005 registration may be required, the agency must refer it to the Department of Justice for assessment of whether the conviction changes the registrant’s tier designation. The Department is entitled to 90 days in which to assess the conviction and may request additional time, if necessary.
2. Within 60 days of receiving a report of a possible 290.005 offense from the registering law enforcement agency or the law enforcement agency in the county of conviction or the district attorney in the county of conviction, the district attorney for the county where the petition is filed may request a hearing on the petition by alleging either that the petition has not fulfilled his mandatory minimum registration requirement or that community safety would be significantly enhanced by the petitioner’s continued registration.
3. If no hearing is requested and the court must grant the petition, upon finding:
a. that the required proof of current registration was presented in the petition; and
b. that the person has registered for the minimum mandatory period; and
c. that there are no pending charges against the person which could extend the time to complete the registration requirements of the person’s existing tier or could potentially change the person’s tier status; and
d. the person is not in custody or on parole, probation, or supervised release.
4. Upon granting the petition, the court must notify the DOJ.
What happens if the district attorney requests a hearing on the grounds that community safety would be significantly enhanced by the petitioner’s continued registration?
The court must permit the district attorney to present evidence[12] regarding whether community safety would be significantly enhanced by requiring continued registration. In making its determination, the court must consider:
a. the nature and facts of the registerable offense;
b. the age and number of victims;
c. whether any victim was a stranger to the petitioner (known for less than 24 hours) at the time of the offense;
d. criminal and relevant noncriminal behavior before and after the
conviction for the registerable offense;
e. the time period during which the person has not reoffended;
f. whether the offender has successfully completed a SOMB-certified
sex offender treatment program; and
g. the person’s current risk of sexual or violent re-offense, including
his/her risk levels on SARATSO static, dynamic, and violence risk
assessments.
What happens if the petition is denied?
If the court determines that the continued registration would significantly enhance community safety, it must set a time period (at least one and no more than 5 years) after which the petitioner can re-petition for termination and must state on the record its reasons for setting a particular time period.The reasons must be based on the information presented at the hearing. The court must notify the DOJthat the petition was denied and that the time period was extended.
Changes to Megan’s Law (PC 290.46)
Effective 1/1/2022, SB 384 amends Penal Code section 290.46 (“Megan’s Law”). Tier three offenders shall have the following information posted on the website: name and knownaliases, a photograph, a physical description, including gender andrace, date of birth, criminal history, prior adjudication as a sexuallyviolent predator, the address at which the person resides, SARATSO risk level, and anyother information that the Department of Justice deems relevant.
Tier two offenders and those convicted of misdemeanor PC 647.6 (or attempted PC 647.6) shall have all of the foregoing posted, except instead of including the offender’s residence address, the site will include “the community of residence and ZIP code in which the person resides or the county in which the person is registered as transient. The Department is not required to post the SARATSO risk level of Tier two offenders.
Tier one offenders, other than those convicted of misdemeanor PC 647.6 (or attempted PC 647.6), and those required to register based upon a juvenile adjudication will not have their information posted on the website.
Those convicted of a felony violation of Penal Code section 243.4 (battery by force/restraint), a child porn offense involving a child at least sixteen years of age, and a violation of Penal Code section 647.6 (annoying/molesting a child) will no longer be eligible to petition for exclusion from the internet website.
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[1]Although the duty to register is lifelong, those who are required to register due to a conviction for a misdemeanor offense listed in PC 290, subdivision (c), whose cases are subsequently dismissed pursuant to PC 1203.4, have been able, upon meeting specified conditions, to be relieved of the duty to register by obtaining a certificate of rehabilitation. This procedure will cease to exist after July 1, 2021, at which time the exclusive method for terminating a registrant’s duty will be governed by PC 290.5, as amended by SB 384.
[2]Certain offenses, specified as Tier 3, are alternatively punishable as a misdemeanor of felony, and the bill does not specify that only a “felony violation” of the statute requires a Tier 3 classification. For such offenses, it is unclear whether the general rule pertaining to misdemeanors will control the tier assignment or whether the more specific offense-based rule of tier 3 will govern. Wobbler offenses within Tier 3 are indicated with an asterisk herein.
[3] … except if the person falls in tier 3, in which case the higher tier controls.
[4] A registrant who is in Tier 2 can petition the court for termination from the registry after having fulfilled his/her requirements for a minimum of 10 years, if the offense requiring registration was not a violent felony (PC 667.5) and involved only one victim, at least 14 years of age, and the registrant was younger than 21 when the offense occurred, provided he has not, since his release, been convicted of a violent felony or another section 290(c) offense.
[5] A person in Tier 3 based solely on his SARATSO score who is required to register for a reason other than a violation of PC 288, may petition for termination 20 years following his/her release on the offense requiring registration, provided he or she was not subsequently convicted of a serious or violent felony or another 290(c) offense.
[6] Unless otherwise indicated, all offense discussed in this memo require a conviction (not a juvenile adjudication) in a California state court of the specified statute or a conviction or military adjudication in another jurisdiction for an offense comparable to a specified California offense (PC 290.005, subd. (a).)
[7] A conviction for an attempt to commit any of the specified offenses does not qualify a person for Tier 3, so those individuals would fall in Tier 2.
[8] Contacting a minor with the intent to violate 286(b) (Sodomy of a minor), 288a(b) (Oral Copulation of a Minor), or 289(h) or (i) is a Tier 1 offense (Foreign Penetration Of a Minor).
[9] Residency in California is a requirement for termination from the registry.
[10]Effective July 1, 2021, a certificate of rehabilitation will no longer provide relief from the duty to register as a sex offender.
[11] Presumably, “the law enforcement agency” in the county of conviction means the agency which conducted the criminal investigation.
[12] Live testimony is not required. The court may consider “reliable” hearsay, such as declarations, police reports, and other documents in making its determination.