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Rights Group sues over Lancaster’s restrictions on sex offenders

Constitutional rights advocates sued the city of Lancaster on Tuesday to block a recently enacted ordinance banning registered sex offenders from going to – or even being near – the city’s parks, movie theaters and other public and private locations.

“The ordinance basically violates the state and federal constitutions, and fails to protect public safety,” said Janice Bellucci, president of a group called California Reform Sex Offender Laws. Full Article

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Yes…thank you Janice Bellucci….thank you.

Again, thank you Janice Berlucci. You are doing what the ACLU should have made a top priority for at least the past 20 years but refused to do (I have contacted them in the past about the SOR issue and just been flat out rejected out of hand, told they did not consider it a problem).

That aside, you made a comment in this Daily News article to which you link that goes to one of my complaints about SOR and about everyone reporting of it and even about your efforts against it:

“People who are on the registry have already paid their debt to society and have already been deemed safe by law enforcement; otherwise, they wouldn’t have been released from prison,” Bellucci said.

The public thinks this applies only to felony child molesters (and of course,e the public is firmly convinced that child molesters are lurking on every corner, hiding behind every bush looking to steal child off the street). As you know, that could not be farther from the truth; In fact, it also applies to many mere misdemeanants!

I have fought the Los Angeles Times MANY times on this point, and they still refuse to report that it applies to misdemeanants too. Even your approach to accepting tiers seems to ignore the severe over-punishment that applies to misdemeanants. I suggest that in fact, you should at least fight to drop ALL offenses, particularly all misdemeanants, from registration that are not required to register by the federal government. For example, the federal government does not require people convicted of misdemeanor indecent exposure to register! But instead, you are arguing to require people convicted of misdemeanor indecent exposure to be subject to registration for at least 10 years.

You must understand, once you get something on this, the powers that be will NOT revisit it again for at least a generation. They will NOT stick their necks out on that again, once it is done now. So we must get it right, or at least better, this time. (And I know this is a lot easier said than done. And I DO APPRECIATE your efforts nonetheless. You are a godsend.)

Misdemeanants should never have to register, must less for the minimum of 10 years that you are fighting for. You simply cannot be fighting for a minimum of 10 years of registration for a misdemeanant! That is what you are doing with the tiers, and you have made it VERY clear that you are satisfied with 10 years being the minimum, when that is way too long.

I know that 10 years minimum is better than life. But that argument is not good enough. You are fighting for something that itself is unacceptable. Gee, at least limit it to no more than maybe 3 years, or certainly no more than 5 years for a misdemeanant — if fact, they should never have to register, as a misdemeanor is mere poor demeanor, minor offense.

Also, the registration requirement should simply not apply after the time frame in the tiers — it should not require any application and review of the time frame and a grant of the cessation, as is now proposed in the tiers. If someone wants to know if you need to register, they should be able to simply look at date of conviction (or date of offense), and see that it is more than so many years ago, so registration does not apply. There should be no need of an official statement saying that registration is no longer needed. I guarantee you, that is a devil in thee details that will come back to haunt as similar has in 1203.4 PC, which once itself stopped any further need for a misdemeanant to register but now amounts to little other than paper. If you have a detail like applying for the grant in the law, you are leaving a detail that WILL be used later to add in more and more reason to deny the grant — this absolutely will happen, that detail is begging for it.

Thank you — thank you for your efforts and concern.

Actually, I would be in favor of a person being removed from the registry once all court mandated probation and counseling has been completed.

Anonymous nobody …. While I agree with most everything you wrote …. There is one thing that stands true. As Janice Bellucci has said in her meetings and on various posts …. The pendulum has been swinging in ONE direction for a very long time. It will take time to bring the pendulum the other way, which I don’t believe it ever will, BUT, if it can be brought back down to a middle area where it should be … Then from there a more even battlefield is drawn. Those are my thoughts … Agree or not agree … Even a little drop in the swing is a step in the right direction. And, for now …. That is what we have, our families have.

“Orange County” resident

MM: I understand what you are saying. But I disagree. It is easy to add bad stuff on incrementally; it is not easy to do that in reverse, making time frames less and less and making fewer offenses registrable. The reality is that when you go at the reverse incrementally, you end up with a small reduction, the minimum increment that is the maximum they think they can impose that will still get you (meaning this group) to give up and/or lose its backing.

As for misdemeanants, I do not think for a minute that the majority of people in California even know they are subject to registration. I do not think the majority even would support registration of misdemeanants. But no one is pushing to stop registration for misdemeanants, instead have already flat out stated that 10 years for them is perfectly acceptable. You just can’t be saying that is acceptable — that is a terrible negotiating stance! And this time of budget crisis — consider the argument about saving money by stopping the expense of registering all the people who the federal government does not require to register. If you want to go at that incrementally, I think it very sellable to at least go back to allowing misdemeanants to automatically stop registering upon getting the relief of 1203.4 PC, as used to be the case. Gee, after all, probation is supposed to be the test of whether you are rehabilitated, and thus if you get 1203.4, you are judged to be rehabilitated, that’s what it means.

Gee, at this point, people don’t even realize that 1203.4 used to be all that was needed to stop registering for anyone who was on probation (and that would even be felons if they had gotten probation). In fact, since they changed that, they are making people who had met that standard and who no longer needed to register start registering all over again. People who hadn’t needed to register for years because they had met the standard to stop registering now have to be registering again. So now what, if they meet the new standard and apply for a pardon and get a certificate of rehabilitation, they will again just change the law and you will again have to start registering?! How can you take away relief from registering retroactively?!

Nobody – you seem to know your stuff. Up until what year did an expungement or 1203.4 relieve one of the registration requirement? What made that change?

Joe: I would have to look it up for exact years when it changed, by the legislature — and my materials are a huge effort to get at, so can’t look it up right now. But expungement via 1203.4 PC (1203.4 PC “expunges” the conviction upon successful completion of probation) provided for automatic end to the registration requirement for both misdemeanors and felonies until the early or mid 1980s, I’d have to look up the exact year. From there it relieved registration for misdemeanors only. It ended for misdemeanors in the early 1990s. They simply made little word changes in the statute to make it so. There was no news coverage of the changes.

The statute that was key to this was separate from then-290 PC. Only a few years ago, 3 or 5 years ago, it was rolled into 290 et al (at that time, or maybe a year later, 290 was broken up into several different statute numbers, to my mind clearly to make it that much more difficult to attack it and so that if any part ran into problems in court, it would not affect all the other parts) — to my mind, in order to make sure the rulings supporting 290 would also be seen as pertaining to it. (I know, what was that statute number — I will have to look that up.) For instance, 290 was ruled retroactive, but there had never been a ruling on whether retroactivity applied to this “key” statute regarding 1203.4 PC.

No application to stop registering was needed, you simply no longer had to do so. Registration applied only to those with standing convictions, and 1203.4 PC eliminated that conviction, and that key statute specifically noted that those obtaining that relief did not have to register. (Now that key statute, which no longer is a separate statute, says 1203.4 PC does not relieve your registration requirement.) That was the legal standard from the beginning of registration back in 1947 until the 1980s. Probation was the test, and if you passed, the registration requirement ended along with your conviction being set aside. (1203.4PC used to say “set aside and vacated,” but after some challenges contending that meant the record showing conviction had to be destroyed, they took out the word “vacated.”) People who did not get probation had a higher standard, as they were not eligible for 1203.4 relief.

1203.4 has been under severe attack since the 1970s, especially very much so in the 1980s and after, and has been dramatically weakened accordingly. Yes, incrementally — I fully understand incrementalism. Gee, the courts have now incrementally moved to saying that 1203.4 does not even eliminate the “fact” of conviction! The court now says it does not actually “expunge” the conviction — even though 1203.4 says the conviction is set aside, a not guilty plea is entered and the case is dismissed — which means it is null and void. And this for a statute that once almost served to have the record of the FORMER conviction destroyed!

If you are really interested, I will look up the dates of those changes and that “key” statute number and when it was rolled into 290. Just ask.

I note, there was a case in the NInth Circuit this year, and in the Calif. high court to answer the key question for the Ninth Circuit, about whether the state of the law at the time of a plea bargain bars more stringent changes in the law from applying to the defendant. Depending on how this is decided (or already has been decided), it could at least bar retroactivity for those who obtained 1203.4 PC relief before its impact on registration was changed. I tried to follow this, but it has dragged on for about two years now, and it suddenly slipped by me — I will have to go look it up at the library soon, as it appears the state court decided not to publish it. If interested, it is Ninth Circuit 09-17362. In the state high court, it was S191948, and our attorney general Kamala Harris argued that tougher sanctions in new laws should be able to applied to previous plea bargains. (That is, if you agreed to a plea bargain knowing that by law once you finished probation you could stop registering, then later changes in the law that no longer provide that relief cannot be applied to you, you get to keep your relief.)

Thank you for the explanation. Interesting!

The current law suit you mention – is it this Doe vs Harris – Many people are watching that one. It should shake things up. There has been no movement in almost a year, though. Is it still alive?

Yes, that’s the case. I’m not positive, but I think the Calif. high court has issued its decision on the matter — but unpublished, so no longer online.

I was very disappointed to see the Ninth Circuit, in sending the question for input from the Calif. high court, specifically say that the Calif. court’s decision would be the determining factor in the Ninth Circuit decision — in other words, that the Ninth Circuit was planning to default to whatever the Calif. court said. That is unfortunate as the Calif. court is more conservative and has shown itself very ready and quick to make just about anything against sex offenders retroactive, deny it is additional punishment.

It was fully briefed at the Calif. court, and I got some suggestion it was decided by the Calif. court back in May. But I can;t find anything on any decision.

Re: DOE V. HARRIS The case# is #S191948. California Supreme Court website shows the docket as “fully briefed” as of February 10, 2012 but does not show further action taken. I would assume even if unpublished the docket would show the matter was closed.

Yes, I have watched it there. And I saw that. But when I checked in September, I forget all the details of what I saw, but I saw something that suggested it had been decided in May. But they post an unpublished decision online for only 60 days — and thus you don’t see anything now. But what I saw was not quite crystal clear, and now I can’t even find where I saw that! At any rate, gee, the Calif. court has had it for a year and a half now!

Here’s the thing. We all need to do our part to put pressure on not only our local leader but our churches. This is as much of a faith issue as it is a constitutional one. The registry violates the very principles of forgiveness and recovery. The registry doesn’t allow for a place for forgiveness, recovery and reinstatement. It actually slaps in the face of God and his fundamental principles of reconciliation. So, by being in support of the registry puts you at odds with the constitution and with God. I challenge anyone to a debate on either of those fronts (religious or constitutional). Ever notice when something is wrong it’s usually wrong on many levels but argued only on one or two misguided perspectives? That’s why they tend to attack the opposition personally and not on the issue. itself.

All of this discussion is well and good, and I am glad to see it happening. What I want to see more of is related to elected officials. Without saying where, I had an elected official tell me no one with only a misdemeanor ever registers, and he was an attorney for years. He was a county supervisor, who proposed laws, etc. It shocks me how many elected persons don’t know what really is going on with sex offender registration. People are shocked when they find out that a 19 year old who had consentual sex with a minor (16 yr old) has to register for life. Elected officials need to be questioned by the public, or the PRESS and “fact checked”. Perhaps having a properly informed electorate with accountability to the public might help swing the pendulum in a bettter direction. Everyone who speaks with elected persons, police, attorneys, etc should spend time educating them on the truth about sex offenders.

You are absolutely right — they deny and lie through their teeth. I have had the state attorney general’s office allege almost the same thing to the LA Times — contending that worrying about misdemeanants is irrelevant because just about all of them go on to commit a felony anyway send up having to register for that, and that as a result hardly anyone is registering merely for a misdemeanor — which of course is absolutely false. They lie to you through their teeth so they can continue forcing misdemeanants to register and not have to face what I “know” would be public disapproval of making misdemeanants register.

I can assure you PLENTY of misdemeanants have to register. Hey, Castellanos was decided on a misdemeanant registering! In fact, many of these sex offender cases seem to be decided over misdemeanant defendants.

If misdemeanants don’t register, then how come about two years ago they were talking of starting to post the misdemeanant registrations online like they do felonies – how could they post that if it doesn’t even exist? Various misdemeanors have to register, including misdemeanor indecent exposure and some other misdemeanors (I don’t know the whole list of misdemeanors off the top of my head). I can show you at least one person having to register for misdemeanor lewd conduct — because they court ordered it under the clause allowed for registration to be ordered for any sexually based offense.

Misdemeanants have to register, and be subject to most all of the other SOR stuff. However, misdemeanants are not posted online — for now. LAWYERS who don’t even know what they are talking about will misunderstand or intentionally diminish it and mislead you — because they know requiring misdemeanants to register would not be favored by the public. The public is concerned with more serious offenses, not mere poor demeanor, or poor conduct.

An example: PC 647.6 (Annoy and Molest a Child) is always a misdemeanor (unless repeat offense with priors for that very offense). It carries mandatory registration and publishing on the internet in the Zip Code Category. It is subject to petition for internet exclusion but who knows that. If you were to look (if legally allowed to!!!) at the website profiles that say “Specific address not subject to disclosure” I would guesstimate a good third are 647.6s.

Violating PC 647.6 can be accomplished by making crude comments to someone under 18 (making them uncomfortable), taking photos of fully clothed minors (without them being aware), or holding a teenager’s hand and suggesting to ‘hook up’.

Would love your thoughts, please comment.x