Preliminary Information
The California Department of Justice (DOJ) has developed a Three-Tiered Sex Offender Registration System in response to the passage of Senate Bill 384, which is now codified at California penal code section 290.5 PC.
Under the new three-tiered sex offender registration system, California registered sex offenders must register with the DOJ as a sex offender for either ten (10) years, twenty (20) years, or for the rest of their life, depending on the sex crime offense committed and the risk of recidivism as determined by a STATIC-99 risk-assessment score or equivalent evaluation.
Note: Prior to the passage of senate bill 384, registered sex offenders were required to register with the DOJ as sex offenders for the rest of their life, regardless of what the sex offense was committed by the registrant.
For example, prior to SB 384, a defendant who was convicted of misdemeanor indecent exposure (PC 314) was required to register as a sex offender for the same length of time as a defendant who was convicted of rape by force or fear (PC 261(a)). This inequity in punishment led to the passage of SB 384, which was later codified at California penal code section 290.5 PC.
Petition to Terminate Sex Offender Registration (PC 290.5)
Per PC 290.5, some California registered sex offenders may now petition the court for termination of the duty to register as a sex offender. To qualify for relief under PC 290.5, the petitioner must file a petition to terminate PC 290 sex offender registration (no automatic termination), wait the requisite time period after release from custody (see below), not be serving a sentence for any criminal conviction, and not have criminal charges pending (other requirements may apply depending on the defendant particular tier level and circumstances).
Mandatory Minimum Registration Periods
A PC 290.5 petitioner must wait a minimum amount of time after his or her release from custody for which he or she was required to register as a sex offender. The minimum amount of time requirements are as follows:
Tier One: Ten (10) years of sex offender registration from the release of custody
Tier Two: Twenty (20) years of sex offender registration from the release of custody
Tier Three Based on High-Risk Assessment: (20) years of sex offender registration from the release of custody if tier three is based on high-risk assessment only, and
Tier Three: Lifetime sex offender registration
What Tier-Level Have I Been Assigned?
The sex offender tier level is determined by the DOJ upon release from custody. In most cases, the registrant will receive a letter from the DOJ which informs the registrant of the tier-level that has been assigned to him or her. With some exceptions, especially for tier three registration, the following common sex crimes result in the following tier level designations:
Tier One: Ten-Year Registration Requirement: Tier one is reserved for sex crimes with little to no physical contact with another person, including misdemeanor annoy or molest a child (PC 647.6), misdemeanor indecent exposure (PC 314), misdemeanor possession of child pornography (PC 311.11), misdemeanor sexual battery (PC 243.4), and any non-violent crime for which sex offender registration was ordered pursuant to PC 290.006, but is not otherwise required under PC 290(c) [i.e., where judge orders sex offender registration in some prostitution cases (PC 647(b)), public lewd act cases (PC 647(a)), or statutory rape cases (PC 261.5), but where registration is not otherwise required without the judges specific order (PC 290.006)].
Tier Two: Twenty-Year Registration Requirement: Tier two is reserved for non-violent sex crimes that are more serious than tier one sex offenses, but not as serious as tier three sex offenses. Tier two sex offenses include felony sexual battery (PC 243.4), incest (PC 285), sodomy on incompetent person (PC 286(g)), oral copulation on an incompetent person (PC 287(g)), sexual penetration by object on an incompetent person (PC 289(b)), and felony conviction of annoy or molest a child (PC 647.6(b))
Tier Three: Life-Time Registration Requirement: Tier three is reserved for defendant’s convicted of the most serious and violent sex offenses, including, sex trafficking of a child (PC 236.1), sodomy by force or violence (PC 286), aggravated rape (PC 261), sexual penetration by force on a minor (PC 289), sodomy (PC 286), oral copulation or sexual penetration of a minor under ten (PC 288.7), aggravated sexual assault of a minor (PC 269), lewd act upon a child under 14 (PC 288(a)), continuous sexual abuse of a child (PC 288.5), kidnapping for a sex offense (PC 209(b)), felony conviction of possession of child pornography (PC 311.1, 311.11), any person required to register as a sexually violent predator (SVP), and more.
Note: A defendant may be placed in tier three based solely on his or her risk-assessment level. However, when a tier three level is assigned only because of the defendant’s risk assessment level, then his or her sex offender registration requirement is reduced to twenty years in some situations.
Juveniles & SB 384: SB 384 creates a two-tiered system for juvenile sex offenders. For the most part, felony sex crimes listed in PC 290(c), which are committed by juveniles, require a ten-year sex offender registration, and misdemeanor sex crimes listed in PC 290(c), which are committed by juveniles, require a five-year sex offender registration requirement.
What if I am Assigned the Wrong Tier Level
The DOJ provides a dispute process along with its tier level designation. If the petitioner disputes the tier level in which he or she has been placed by the DOJ, the petitioner may dispute the designation. Disputing a designated tier level should be handled by a competent sex crimes defense attorney familiar with this dispute process.
Changing Tier Levels
A defendant’s sex offender tier level does not change without a successful dispute to the DOJ; however, the amount of time required for registration may change in a few situations. In fact, a twenty-year tier level designation from the DOJ (tier two) will not inform the petitioner that his or her minimum registration period is only ten years (tier one) for certain sex offenses, including non-violent sex offenses involving only one sex offense victim, and where the one victim was older than 14. (Note: Does not apply to lewd act upon a child under 14 (PC 288(a)), or human sex trafficking crimes (PC 236.1).
Similarly, the DOJ designation letter does not inform the defendant that his tier three designation (lifetime registration) may be reduced to a twenty-year registration when the tier three designation is only due to the registrant’s risk-assessment level and the sex crimes was not classified as a serious or violent offense (PC 1192.7, and PC 667.5, respectively). This does not apply to a lewd and lascivious act upon a child under 14 crime (PC 288(a)).
Release From Custody Defined
Per PC 290.5, “release from custody” means release from incarceration or civil commitment (mental hospital).
Time Period Extended
The time period from release from custody to the end of the sex offender's tier level may be extended when the defendant is reincarcerated for a violation of probation, when the defendant fails to register as a sex offender, when the defendant serves any custody time served on any new offense, including non-sex offenses, or where the court determines that extension of the time period would meet the interest of justice (see below).
What Tier Level Am I in For Out-of-State Sex Crimes
When a person is convicted of a sex crime from another state (not California), and he or she moves to California, then the elements of the out-of-state sex offense are used to determine which tier level would best meet California’s equivalent sex crime.
Do I Have to Register as a Sex Offender if I Move out of California?
If a sex offender registrant moves from California to another state, then whether that person has to register as a sex offender in the new state depends on the new state’s registration requirements, not California’s registration requirements. There are some exceptions to this rule for military personnel, which might require registration in a new state even if the new state does not otherwise require sex offender registration.
What Information Do I Have to Register Per PC 290
The information that must be registered with local law enforcement and the DOJ is covered in Sex Offender Registration Requirements.
IMPORTANT: A petitioner must continue to register as sex offender pursuant to PC 290 rules unless and until the petitioner is successful on his or her PC 290.5 petition to terminate sex offender registration, and he or she receives confirmation of this from the DOJ.
Megan’s Law Website Exclusion
Successful PC 290.5 petitioner’s will have their name and other information removed from Megan’s law sex offender website; however, some sex offender registrant’s may qualify for name removal from the sex offender website even without a successful PC 290.5 petition. For more information on the law related to name removal from California’s DOJ sex offender website, see PC 290.46.
Note: The law on name removal from the DOJ’s sex offender website has undergone changes with the passage of SB 384. In fact, in some cases, a registrant whose name and information were previously undisclosed pursuant to PC 290.46, may now have their name and information disclosed to the public. This may lead to a possible Ex-Post Facto defense for some sex offender registrants, which means the new SB 384 and PC 290.46 law might not apply to them). For more information, see PC 290.046 & Exclusion from Megan’s Law Sex Offender Website.
Is My Tier Level Post on Megan’s Website?
No. A sex offender registrant’s tier level is not posted on the DOJ’s sex offender registry (Megan’s Law Website).
Do I Need to Expunge My Sex Crime First?
No. A PC 290.5 petition to terminate sex offender registration does not require an expungement of the underlying sex offense; however, it is not uncommon for a sex crimes defense attorney to file both the PC 290.5 petition and an expungement of the underlying sex offense simultaneously. Strategic reasons might exist for not filing both the PC 290.5 petition and an expungement petition simultaneously. For more information, contact our sex crimes criminal defense attorneys and visit Expungement of Sex Crimes in California.
How Long Does the Petition Take?
The petition to terminate sex offender registration can take as little as thirty (30) days or as long as year, depending on the situation, including the petitioner’s tier level designation, any dispute of tier-level designation with the DOJ, the court’s calendar, and more.
It is not uncommon for a PC 290.5 petition to take many months where the petitioner’s tier level designation is a tier three, which is based on the petitioner’s risk-assessment level only, and where the petitioner has multiple “tolling” issue based on allegations of failure to register as a sex offender (PC 209(b)), or new criminal offenses. A "tolling" of the time period means the time period stops for some reason.
For example, a tier one sex offender registrant must normally wait ten years from the release of custody to petition the court for termination of sex offender registration; however, if the defendant fails to register as a sex offender during those ten years, then an additional year will be added to the minimum time period for every act of failure to register.
What Happens if the Court Denies My Petition?
If the criminal court denies the petitioner’s PC 290.5 petition, then the court will either let the petitioner know that he or she does not qualify for such relief (tier three with no exceptions), or the court will extend the period of registration to meet the interest of justice. The extension periods are as follows:
Tier 1 & Tier 2 (Adult): At least one year from the date of court’s denial on petitioner’s PC 290.5 petitioner, but not to exceed five years, based on the facts illuminated at the PC 290.5 hearing.
Tier 2 (10-Year Registration Exception: At least one year from the date of court denial on petitioner’s PC 290.5 petition to terminate sex offender registration.
Tier 3 (based on risk assessment level): At least three years from the date of court’s denial on petitioner’s PC 290.5 petition to terminate sex offender registration.
Note: The above-listed extended time periods are extensions in addition to any time period extension for tolling issues or time added for failure to register as sex offender.
Forms Required for PC 290.5 Petition
The California Judicial Counsel has produced forms that must be used for PC 290.5 petitions to terminate sex offender registration (PC 290 registration). These forms can be found at CR-415 Petition to Terminate Sex Offender Registration (Pen. Code, § 290.5); CR-416 Proof of Service – Sex Offender Registration Termination (Pen. Code § 290.5); and CR-418 Order on Petition to Terminate Sex Offender Registration (Pen. Code § 290.5).
Additionally, there is an information sheet provided by the Judicial Counsel of California, which can be found at CR-415 INFO Information on Filing a Petition to Terminate Sex Offender Registration.
Note: The required forms for termination of sex offender registration should get the process started. In some cases, this is all that the petitioner needs to file. The court can rule on the issue without an evidentiary hearing in some cases. However, if the district attorney requests a hearing on the matter, then additional legal paperwork should be filed with the court and served on all interested parties, including possible declarations of the petitioner with attached exhibits and evidence and any required local forms. For contested PC 290.5 petition, the petitioner should engage the services of either the public defender or a private sex crimes defense attorney.
Certificate of Rehabilitation & PC 290.5 Petitions?
Prior to the passage SB 384 and PC 290.5, a sex offender registration (PC 290 registrant) could petition the court for a certificate of rehabilitation (PC 4852). A successful certificate of rehabilitation petition would relieve the petitioner of his or her duty to register as a sex offender in some cases.
However, new SB 384, PC 290.5, and PC 4852 rules requires a successful PC 290.5 petition before the petitioner may petition the court for a certificate of rehabilitation. This creates a new procedural requirement for PC 4852 petitioners that did not exist prior to the passage of SB 384 and PC 290.5; therefore, a petitioner might have an Ex-Post Facto Defense to the new law’s application against him or her.
Also, a certificate of rehabilitation for sex offense requires the sex offense conviction to be expunged. This law is unchanged after passage of SB 384 and PC 290.5 [PC 1203.4 & PC 4852]. Therefore, a certificate of rehabilitation is not available in sex crimes related to lewd and lascivious act upon a child under fourteen (PC 288(a)), felony statutory rape (PC 261.5(d)), felony possession of child porn cases (PC 311.1, 311.3, or 311.11), continuous sexual abuse of a child (PC 288.5), sexual penetration by object of a child under 14 (PC 289(j)), oral copulation crimes charged under PC 287(c), or sodomy crimes charged under PC 286(c).
Note: Certificate of Rehabilitation law and Ex-Post Facto Defense is a complex area of law. PC 290 sex offender registrants seeking a certificate of rehabilitation should consult with an experienced sex crimes criminal defense attorney before moving forward on his or her petition.
For more information on California’s new sex offender three-tier level registration requirements, including information on SB 384, PC 290.5 (Petition to Terminate Sex Offender Registration), PC 1203.4 (Expungement of Sex Crimes), or PC 4852 (Certificate of Rehabilitation for Sex Crimes), contact our sex crimes criminal defense attorneys today and visit California's Tier System for Sex Offender Registrants. Our team of successful and award-winning sex crimes criminal defense attorneys have helped hundreds of defendants charged with all manner of felony and misdemeanor sex crimes in the Inland Empire and we can help you too. Call today!
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