What is SB 384?
SB 384 will transition California’s lifetime sex offender registration schema to a tier-based schema. SB 384 will establish three tiers of registration for adult registrants for periods of 10 years, 20 years, and life, and two tiers of registration for juvenile registrants for periods of 5 years and 10 years. This new law requires the registrant to petition the superior court or juvenile court for termination of their sex offender registration requirement at the expiration of their mandated minimum registration period. Based on criteria listed in SB 384, the court will either grant or deny the petition.
When does SB 384 take effect?
The new tier-based sex offender registration schema takes effect on January 1, 2021.
On or after July 1, 2021, tier one and tier two registrants who meet mandatory minimum requirements as listed in SB 384 may petition the superior court or juvenile court in their county of residence for termination of their California sex offender registration requirement. On or before January 1, 2022, the CA DOJ shall make information available to the public via the Megan’s Law website in accordance with SB 384.
The current lifetime sex offender registration schema remains in effect until December 31, 2020.
Tiering – How are the Tiers Determined?
Tiers are designated in accordance with the criteria specified in Penal Code sections 290 through 290.024, et seq., the Sex Offender Registration Act, as amended under SB 384, which include registrable conviction(s) or adjudication(s) from California and non-California jurisdictions, risk assessment scores and levels, and other criteria.
What are the mandatory minimum registration periods for individuals who were convicted of their registrable offenses in superior court?
Tier One: 10 years
Tier Two: 20 years
Tier Three: Lifetime
What are the mandatory minimum registration periods for individuals who were adjudicated of their registrable offenses in juvenile court?
Tier One: 5 years
Tier Two: 10 years
What is considered when determining whether I have met my mandatory minimum registration period?
Pursuant to Penal Code section 290(e) as added by SB 384, “the minimum time period for the completion of the required registration period in tier one or two commences on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period. The minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under the Sex Offender Registration Act (the Act), and by three years for each felony conviction of failing to register under the Act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that person’s release from incarceration, placement, or commitment, including any related civil commitment. If the subsequent conviction requiring registration pursuant to the Act occurs prior to an order to terminate the registrant from the registry after completion of a tier associated with the first conviction for a registerable offense, the applicable tier shall be the highest tier associated with the convictions.”
Who determines my tier designation?
Pursuant to Penal Code section 290.006 as amended under SB 384, on or after January 1, 2021, the court shall determine the tier designations for individuals ordered by the court to register. Registrants who are court- ordered to register will be designated as tier one unless the court finds the person should register as a tier two or tier three registrant and states on the record the reasons for its finding. An individual is court-ordered to register pursuant to Penal Code section 290.006 when an individual is convicted of an offense not specifically included in Penal Code section 290(c) and the court makes a finding that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.
The CA DOJ will designate the tiers of all other registrants.
Will I be notified of my tier designation?
Registrants may request their local registering agencies to provide them with their tier notification letters after January 1, 2021.
What if I disagree with my tier designation?
Registrants who feel they have been designated as the wrong tier as specified in the Act as amended under SB 384 should consult with our office.
What tier will I be in if I have a non-California registrable sex offense conviction (out-of-state, federal, military)?
Pursuant to Penal Code section 290, subdivision (d)(4), as added by SB 384, “a person who is required to register pursuant to Section 290.005 shall be placed in the appropriate tier if the offense is assessed as equivalent to a California registerable offense described in subdivision (c). If the person’s requirement to register pursuant to Section 290.005 is based solely on the requirement of registration in another jurisdiction, and there is no equivalent California registerable offense, the person shall be subject to registration as a tier two registrant, except that the person is subject to registration as a tier three registrant if one of the following applies:
- The person’s risk level on the static risk assessment instrument (SARATSO), pursuant to Section 290.06, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.
- The person was subsequently convicted in a separate proceeding of an offense substantially similar to an offense listed in subdivision (c) which is also substantially similar to an offense described in subdivision (c) of Section 667.5, or is substantially similar to Section 269 or 288.7.
- The person has ever been committed to a state mental hospital or mental health facility in a proceeding substantially similar to civil commitment as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.”
If I was convicted in another state, am I still required to register in California?
If a registrant has a non-California conviction for which they are no longer required to register in the state of conviction, they may still be required to register in California. If the CA DOJ determines that their non-California conviction is equivalent to a registrable offense listed in Penal Code section 290(c), they will be required to meet the mandatory minimum registration requirements for the applicable tier for that offense before petitioning for termination from the requirement to register as a sex offender in California.
What if the CA DOJ is unable to determine my tier by January 1, 2021?
A registrant will be placed in a tier-to-be-determined category if their appropriate tier designation cannot be immediately ascertained. An individual placed in this tier-to-be-determined category shall continue to register in accordance with the Act. The individual shall be given credit for any period for which they register towards their mandated minimum registration period.
The CA DOJ shall ascertain an individual’s appropriate tier designation within 24 months of their placement in the tier-to-be-determined category. A registrant is ineligible to petition for termination of their sex offender registration requirement in California while they are placed in a tier-to-be-determined status.
If my requirement to register as a sex offender in California is terminated and I subsequently move out of the state, am I required to register in my new state of residence?
Each state/jurisdiction has their own sex offender registration requirements; therefore, the CA DOJ cannot confirm a registrant’s requirement to register as a sex offender in another state/jurisdiction. Registrants should contact the sex offender registry for the appropriate state/jurisdiction for additional information about registration requirements in that state/jurisdiction.
If I believe I already meet the mandatory minimum registration requirements as included in SB 384, do I still need to register?
Yes. Registrants must continue to register as sex offenders in accordance with the Act. After July 1, 2021, specified registrants may petition the courts for termination of the requirement to register as a sex offender in accordance with SB 384.
However, registrants are required to continue registering in accordance with the Act unless and until a court grants a petition for termination of sex offender registration requirements in California.
Failure to continue registering in accordance with the Act may make you subject to prosecution for failure to register offenses.
When will I be posted on the Megan’s Law website pursuant to SB 384?
Beginning January 1, 2022, the Megan’s Law website will reflect changes pursuant to SB 384. These changes include the elimination of certain exclusion criteria.
Who will be posted on the website?
Not all registrants will be posted on the public website. Penal Code section 290.46 as amended under SB 384 provides the criteria for individuals to be posted to the Megan’s Law website.
Will the exclusion criteria change for removal from the Megan’s Law website?
Yes. Pursuant to Penal Code section 290.46(d) as amended under SB 384, only registrants who meet the following requirements will be eligible to apply for exclusion.
“(i) An offense for which the registrant successfully completed probation, provided that the registrant submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the registrant was the victim’s parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the registrant by the penis of the other or by any foreign object.
(ii) An offense for which the registrant is on probation at the time of his or her application, provided that the registrant submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the registrant was the victim’s parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the registrant by the penis of the other or by any foreign object.
If, subsequent to his or her application, the registrant commits a violation of probation resulting in his or her incarceration in county jail or state prison, his or her exclusion, or application for exclusion from the Internet Web site shall be terminated.”
If I am currently excluded from the Megan’s Law website will I remain excluded?
Pursuant to amendments to Penal Code section 290.46 resulting from SB 384, registrants who were previously granted exclusion may no longer be eligible for exclusion. If the CA DOJ determines that a person who was granted an exclusion under a former version of Penal Code section 290.46(e) would not qualify for exclusion under Penal Code section 290.46(d) as amended under SB 384, the CA DOJ shall rescind the exclusion, make a reasonable effort to provide notification to registrant that the exclusion has been rescinded, and, no sooner than 30 days after notification is attempted, make information about the registrant available to the public on the Internet Web site as provided in Penal Code section 290.46(d) as amended under SB 384.
When and where do I petition for termination of my sex offender registration requirement in California?
On or after July 1, 2021, registrants who meet the mandated minimum requirements may petition the superior court or juvenile court in the county in which they reside. Our office is now accepting clients for these petitions.
An individual who is registering solely for a juvenile adjudication will petition the juvenile court. Any individual registering for an adult conviction of a sex offense, even if that person also registers for a juvenile adjudication, will petition the superior court.
Registrants must initiate the petition process by completing the petition forms, requesting proof of current registration from their individual registering law enforcement agencies, filing their petitions, and serving copies of their filed petitions on the required parties.
How can I have my registration terminated before January 1, 2021?
Until January 1, 2021, registrants remain subject to lifetime registration and must obtain a certificate of rehabilitation or gubernatorial pardon in order to be relieved of the requirement to register (Pen. Code § 290.5).
Where do I receive proof of current registration to attach to my petition?
The registrant’s current registering law enforcement agency will provide the proof of current registration upon request from the registrant.
On whom do I serve my petition?
The petition is served on the registering law enforcement agency and the district attorney in the county where the petition is filed and on the law enforcement agency and the district attorney of the county of conviction of a registerable offense if different than the county where the petition is filed (Pen. Code § 290.5, as amended under SB 384).
Who grants or denies a petition for termination?
The superior court or juvenile court where the registrant filed their petition will be responsible for either granting or denying the petition for termination. For more information on the criteria used to grant or deny a petition, please refer to Penal Code section 290.5 as amended under SB 384.
If my petition for termination is denied following a court hearing, when can I re-petition for termination?
Pursuant to Penal Code section 290.5 as amended under SB 384, the court shall set the time period after which the person can re-petition for termination for tier one and tier two registrants who have met their mandated minimum registration periods, but whose petitions for termination were denied. The earliest re-petition date shall be at least one year from the date of the denial, but not to exceed five years, based on facts presented at the hearing. The court shall state on the record the reason for its determination setting the time period after which the person may re-petition.
A limited number tier two and tier three registrants, eligible to petition based on specified circumstances, may petition the court for termination of sex offender registration requirements (Pen. Code § 290.5(b)(1)-(b)(3) as amended under SB 384). If the petition is denied, these registrants will be eligible to re-petition from one to five or three to five years from the date of denial (Pen. Code § 290.5, as amended under SB 384).
What will I receive from the court if my petition is granted?
Registrants will receive notice from the court whether their petition is granted or denied. Registrants should retain the court order for their own records.
How long will it take after my petition for termination is granted by the court for my registration requirement to be terminated by the CA DOJ?
The CA DOJ anticipates full termination from the registry after a petition is granted to take between 30-90 days. Please retain a copy of the court order granting your petition until you receive a letter from CA DOJ indicating your registration requirement has been fully terminated. Your requirement to register as a sex offender in California ends at the time the court grants your petition.
Can a tier three registrant petition for termination of their sex offender registration requirement?
If a tier three registrant is designated as tier three solely due to their risk level, which was well above average risk (formerly high risk) on the Static-99R, at least 20 years from release from custody on the registrant’s registrable offense, the registrant may petition for termination of their sex offender registration requirement unless the conviction offense is listed in Penal Code sections 1192.7 or 288. The court shall determine, based on factors listed in Penal Code section 290.5 as amended under SB 384, whether community safety would be significantly enhanced by continued registration.
Individuals designated as tier three solely due to their risk level will be designated as Tier 3 – Risk Level by the CA DOJ.
If you are designated as Tier 3 – Lifetime, you may not petition for termination.
Whom may I contact for more information regarding how to file a petition for termination of my sex offender registration requirement?
Contact our office today to speak to Pat Carey about these and other issues.