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Assembly Bill Would Increase Sex Offender Rights

The State Assembly is actively considering a bill, AB 1640, that would eliminate the registration requirement for sexual offenses that the California Supreme Court and several Courts of Appeal have ruled violate the equal protection rights of registered citizens.  The bill was introduced by Assembly member Jones-Sawyer (Democrat, Los Angeles) and is sponsored by Los Angeles District Attorney Lacey.

Assembly Bill 1640, if passed, would be an important step toward restoring the civil rights of registered citizens,” stated CA RSOL President Janice Bellucci.  “The bill would ensure that courts throughout the state of California consistently enforce recent court decisions.”

Recent court decisions to which the bill refer are based upon the case People v. Hofsheier in which the California Supreme Court ruled that mandatory lifetime sex registration was unconstitutional for those convicted of Penal Code Section 288a(b)(1).  Since that case, theHofsheier ruling has been applied to additional Penal Code Sections including 286(b)(1), 286(b)(2), 288a(b)(2), 288.7, 289(h) and 289(I).

California RSOL supports AB 1640 and will devote resources to its passage.  Registered citizens and family members can help to support the bill by contacting their Assembly members by phone, by E-mail and/or by letter.  A list of Assembly members and their contact information are available at www.assembly.ca.gov

[note radius=”2″]NOTE: This Bill deals with 288a(b)(2) Oral Copulation with a Minor under 16 – NOT 288(b)(2) Lewd or Lascivious act on a Minor under 14 with force or violence[/note]

Bill InformationAB_1640_-_March_2014

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This is great news. In addition, some (many?) California registrants may not have been aware of People v. Hofsheier. This may have implications for many currently on the registry. Obviously, one can’t jump to hopeful conclusions without investigating, but just to let you know it is possible.

I would love to find out

– how many people have filed a Hofsheier motion in the past 8 or so years,
– of those, how many actually got their registration requirement terminated for good,
– of those, how many were just ordered to register by court discretion under 290.006.

Anyone?

It appears to mean “We acknowledge some registration requirements are unconstitutional, but if you have any other registerable offenses we don’t care.” Here it is in a nutshell: (d) Any person convicted on or before January 1, 2015, of any of the following offenses or attempt to commit any of those offenses, may seek discretionary relief from registration imposed under subdivision (b), if the person has not suffered any other conviction requiring registration: (1) Subdivision (b) of Section 286. (2) Subdivision (b) of Section 288a. (3) Subdivision (h) or (i) of Section 289. (4) Section 283, if committed with the… Read more »

Editable version of the bill here: AB 1640: JONES-SAWYER Sex Offenders: Registration Summary AB 1640 amends California’s Sex Offender Registration Law to eliminate the registration requirement for sexual offenses that the California Supreme Court and various Appellate Courts have ruled violate a defendant’s equal protection rights. Background Currently, there are several non-forcible, “consensual” sexual offenses involving minors which require lifetime sex offender registration. These cases involve minors who are having a sexual relationship with someone over the age of 18. Although minors cannot legally consent to sexual activity, the cases are viewed as “consensual” because the sexual activity is not… Read more »

In all these post about 288 I never see anything about my charge which was 288.4(b). Would this bill change my registration requirement?

I’m in a similar situation, and watching for the same thing. With no actual victim, it seems our cases should not carry lifetime registration.

I’m in the exact same position and I don’t understand why those of us with no victim aren’t allowed to seek relief as well, it’s very puzzling and frustrating.

I have received an expungement and have a little over 5 years until I can file for my COR, however I would like to see those of us in this or similar situations included in this kind of legislation.

However, I’m very happy so see this step towards our ultimate goal of abolishing the registry once and for all!

It was an internet sting in which there wasnominor or victim.

This applies to 288a(b)(1), acts involving “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person”, and not 288a itself, acts that didn’t involve violence? This doesn’t make sense to me.

Nevermind, I was looking at 288(b)(1) and 288(a), not 288a(b)(1) and 288a.

This bill directly impacts me. I was convicted of one count of 288a(b)(1) over 15 years ago. I was pretty young myself at the time (early 20s). My conviction has been dismissed/expunged and reduced to a misdemeanor, but I still have to register as a sex offender. I was going to motion for a Hoffshier reduction, however my legal team recommended a certificate of rehabilitation instead. I got the impression from them that Hoffshier is extremely difficult to get even if you fit the profile of the court decisions, ever harder to obtain than a COR. I’m in the COR… Read more »

The way the codes are written is confusing: 288 = lewd acts, 288a = oral cop.

Example:

288a(b)(1) = oral copulation with someone under 18

288(a)(b)(1) = lewd act on a child under 14 years of age using violence

The parenthesis make a significant difference 🙂

Actually I think I was mistaken above – it should be 288(b)(1), not 288(a)(b)(1).

Sorry, I’m not a lawyer and they don’t make it easy to navigate these penal codes. Janice can correct me if I wrote anything that is incorrect.

Holy crap.. that was difficult to read with the red crossed out letters, the bright blue highlighted sections….
I am not even sure what the hell I just read…

This is a very positive step. What we all need to do is contact our California Assembly member and encourage support of bill AB 1640. We also need to tell as many people as we can to do the same thing. It is time for us to take action. Let’s do it today!

Ok.. Now it makes sense to me… it applies to the non-violent crimes like lewd acts with no force.. a regular 288A not a 288A(B).. I read the info from the actual website…. looks like it might apply to me… *does a double take* this looks to good to be true… but its still in its starting phase, so anything can happen….

Anyone know a good template I can used in relations to this bill so I can write/email my reps?

I don’t think it applies to lewd acts without violence on a minor under 14 years of age, 288(a). That is still in the proposed law for mandatory registration, (although these laws would get an F in an English class for readability). It looks like it only applies if the victim is over 16 and not coerced. Hey, what if the court typist forgot to put the parenthesis in someone’s sentencing documents?

My best friend is a court reporter. She gets tested for her accuracy. Court reporters are allowed a 2% error rate. Unbelievable and shocking as any errors can cause someones appeal to not be granted. Always record your court hearings to make sure the transcript is accurate.

This is good, but it merely codifies what already is the law under case law. It won’t relieve anyone of registration who isn’t already relieved under those rulings. But I note, it is very good in that it will leave those offenses out of registration even if the court changes it tune, as it has done before. For instance, the court back in the 1970s ruled that it was unconstitutional cruel and unusual punishment to require registration (which then was merely registration, none of the collateral horrors in place today) for lewd conduct. The Legislature subsequently took lewd conduct out… Read more »

Anonymous Nobody: I too think this is a good bill and should be supported. In fact, I think this is a big step in the right direction. I also wish they’d take a bigger bite, but this is a good start. The thing about this that grabs my attention is the fact that this is a actual physical offense they are talking about. I wonder if they will ever get around to the thought crime type of offenses where that was no physical contact with anyone, like looking at pictures, downloading etc. It seems like they would have started here… Read more »

Actually, I think it is a small step, since all they are doing is coordinating the law books with the state of the law. A major problem is that they are not leading, they are waiting for someone else to do it, the courts. If the courts don’t do it, these legislators are too wimpy to step up and lead. If the legislators aren’t going to do anything to take offenses out of 290 until a court declares the inclusion to be unconstitutional, then you are not going to see any help at all. Hofshier was a anomaly, not a… Read more »

Great news and worthy of support. This is one step in the right direction, with many more steps to be taken to resolve the registration problem for registrants, taxpayers and law enforcement. Hopefully some nut case zealot doesn’t amend or shoot it down. Think though, if it passes, how flooded the courts could become!

I think they ought to amend the law to say registration is ex-post-facto punishment, and bring all the laws in compliance with the Constitution.

I think that ship sailed with Doe vs Harris last summer. It is on this web site somewhere.

Doe v. Harris was about whether the state of the law at the time of a plea bargain was part of a binding contract barring any changes in the law thereafter being applied to the defendant. It was not about the Constitution’s ban on ex post facto punishment. Other earlier cases addressed ex post facto punishment, ruling that registration is not punishment so could be applied retroactively. Doe v. Harris was an attempt to find another way to bar retroactive application of new laws for people who entered into plea bargains.

Right you are. Doe vs. Smith, then?

I almost find Doe vs. Harris more disturbing… allowing one party to a legally binding agreement to unilaterally alter the conditions and consequences in perpetuity. In what universe???

Yes Joe, I write contracts for job. Would that be great if I could change the contact at will in my favor. I’d have a lifetime income at someone’s expense. It’s as immoral as heck. But when the government does it, it is O-keedoekee. It somehow protects little white kids, you must remember.

I believe this is a great bill and will ensure that all my family and friends support it!

I am curious why 288(c)(1) wouldn’t be included in the list that could get registration relief. My thinking is, 288A(b)(2) is oral cop under 16, which my understand to mean 14 or 15. 288(c)(1) is L&L 14 or 15. Both of them cover the same age group, why the difference in possible registration/relief? Or am I completely missing something?

That is a good question. Hugging and kissing a 14/15 year old would indeed fall under 288(c)(1) and still be subject to mandatory registration, whereas oral sex with a 14/15 year old would not be subject to mandatory registration? Makes no sense. Makes as little sense as mandatory registration for oral sex with a 16/17 year old, but not for actual intercourse with a 16/17 year old (the basis for Hofsheier). The only sane approach would be to do away with mandatory registration, period. Let the judge decide who should be watched… now, there is a concept. Judges – actually… Read more »

Nothing in the registry makes sense, unless count keeping the enforcers of it employed.

“….now, there is a concept. Judges – actually judging….” You know what, Joe, this comment is GOLDEN! I say that because it blows my mind how we are supposed to have separation of powers among the 3 branches of government. You would THINK that judges would hate how the Legislature is all but making them bench warmers (pun intended). They are being stripped of all of their discretion. Yet, when we cry foul and bring these cases before them, they bow to the very branch of government who is basically flipping them the bird. If I were a judge, I… Read more »

@ron lake county, ca …you’d be surprised what you don’t know…court record can be challenged before even a sentence so there could be a hearing to correct the record….problem is you have to have public funded personnel proceed in that process….they didn’t and would not interview witnesses to correct record and will assign you a “private attorney ” away from public defender..but guess what its really a state attorney ..its a sham ..they don’t want you to win and will undermine the scales to do it…try to get a real private attorney in the case before sentence to correct and… Read more »

C) Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, “except subdivision (b)” thereof, Section 288, 288a, “except subdivision (b)” thereof, or Section 289, except subdivisions (h) and (i), Section 207 or 209 committed with intent to violate Section 261, 286, “except subdivision (b)” thereof, Section 288, 288a, except subdivision (b) thereof, or Section 289, (d) Any person convicted on… Read more »

Thank you for posting the language — and that language is a MAJOR disappointment. They aren’t taking those offenses out of 290 after all. They are leaving them in, but allowing you to somehow apply for relief, which it specifically states will be a discretionary decision, not something to which you are entitled. Hey, a COR is discretionary too, and you see how capriciously the courts have handled those. So, now you have to file an application (and let the check writing begin) — it doesn’t say with whom, but you already could have filed in court to get the… Read more »

The ONLY thing taken out of 290 by this proposed bil is the MANDATORY registration part for the stated offenses, along the lines of Hofsheier. Hofsheier, in a nutshell – he was a young man convicted of having voluntary oral sex with a 16 year old girl. For that offense – 288a(b)(1) – registration was mandatory. Had he had actual intercourse (unlawful sexual intercourse pc 261.5) on the same day with the same person it would have been DISCRETIONARY (note that, in the PC, oral sex, or really, all non-traditional, non-reproductive activities are in the section called “Bigamy, Incest and… Read more »

Yeah it sounded like back to square one… if you don’t want to register you’ll still have to “apply” for the laws discretion… which sounds like what we have already tried before…

Big Red Stamp…. “Denied”

I still find the proposed statutory language very disturbing. Looking at the motion that was entered, and comparing it to the proposed statutory language — they do not seem to be in sync. The motion says it wants to eliminate those charges from mandatory registration, although making it clear that another section of 290 that allows the court to order registration for any offense the court decided involved sexual compulsion or gratification could still be applied (it should not say that, that goes without saying, and saying it leads one to think it might be intended to say something more).… Read more »

The more I think about this, the worse it seems. This is absolutely designed to reinstate registration for those offenses — the opposite of what we thought at first because of wildly misinformed article at top. This is not designed to provide an avenue for relief; it is designed to override Hofshier and give a new ability to instead require people convicted of those offenses to register on the basis of the other language in 290 providing for a discretionary order to register upon a finding of sexual compulsion. Simply under Hofsheir, the court could not instead impose a discretionary… Read more »

This bill gives discretion to a judge (a person trained to judge) on the registration component of a conviction for the stated offenses – current, future and past. How is that a bad thing?

I agree that the headline is a bit unfortunate, as I do not really see any ‘rights’ gained.

Because, as I explained, the judge cannot impose that discretionary registration for people already sentenced, which is who this applies to. This new law would give the judge the ability to impose the discretionary registration that he now cannot do. All this bill is doing for people already convicted on those charges is giving the court the chance to impose registration despite Hofsheier, although it could not do so without this bill. This bill is not reducing registration for those people, it is increasing it. Thanks toHofsheier, those people are now free and clear. But this bill would allow the… Read more »

Okay, one more time… before 2005 / Hofsheier 288a(b)(1) – Oral cop with a person under 18 (16/17) was subject to MANDATORY registration. No wiggle room. None. After 2005 / Hofsheier MANDATORY registration was no longer required, mandatory, for this offense. The reason for this was that PC 261.5 – Unlawful Sexual Intercourse with the same age group is not subject to MANDATORY registration and that just makes no sense. This applied to future and past offenses, giving those previously convicted and ordered to mandatory registration the option to file a motion and to ask a judge to lift the… Read more »

Better yet… 288(a) LEWD OR LASCIVIOUS ACTS WITH A CHILD UNDER 14 YEARS OF AGE, I was age 20..
Does this even apply to me?

I was convicted of the following

664/288(a)
664/288.2(b)

The 664 is for attempted. This was an internet sting. I’m currently fighting an appeal with the DA and AG for an expungement I was granted under People vs. Lewis. From what I’ve been reading in the comments if there was an actual “victim” then I could not be granted 290 relief but what about for attempted?

@ One Day at a Time; I’ll bet I can name the county yours happened in because I have identical charges. Please let me know of your progress with your record clearance and any other helpful info you might have. All I’ve found out thus far is that record clearance is mandatory if we’ve met certain conditions, and I was told that I could not be granted a COR. Seems the courts don’t make much of a difference between an attempt or a completed crime and most attorneys have difficulty with the interpretations of the laws in our cases. Please… Read more »

Will do mch. The DA is basically saying ANY 288 charge attempted or completed should not be eligible for clearance and that the 4th district ruled incorrectly in People vs Lewis. The judge agreed with him at the hearing but granted it anyways because of the Lewis case. If things work in my favor I’ll advertise my lawyer. I just can’t see how state law could be one thing in the 4th district and something else in a different district. I’m not sure what would happen if I lost in appeal, maybe someone with some legal expertise can advise?

I do have to ask! We have high risk, serious and other offenses (misdemeanor sexual battery and misdemeanor indicent exposure? Would these two offenses be no brainers to include as well?

Thank you USA. That was my comment above. 🙂 And in fact, why not all misdemeanors taken out. In fact, why not simply conform to Federal.

Registration is supposed to prevent future crime. It fails because using offense based criteria makes no sense. The more “severe” crimes with victims sometimes show the lowest re-offense. Individuals commit crime, not penal codes. Until they can develop a reliable way to rate an individuals risk, stop using offence to justify registration.

I’m a bit confused here,I hope someone out there can let me know. There seems to be Two California public safety committees both seem to be through the senate and the general assemply. Which of the two committees research investigate and vote on AB1438 AND AB1640? #1. THE California Senate Committee public Safety AND #2. Public safety committee State of Californa. Both have complete diffrent members yet both deal with the penal code laws. I noticed that both have a majority of a specific color sceam on their internet home pages. The Senate Committee of Public Safety (SCOPS) is RED… Read more »

Hofshier implied that registration is punishment. Why else would the price club membership be alright for one offence and an imposition for a similar offence? I’m not a politician, so I can say I can support no bill that does not end offense based after the sentence is done registration.

WONDERING IF MY CHARGE SINGLE COUNT 288(A) FRM 1989 , QUALIFYS FOR RELIEF UNDER AB 1640 , ALSO WHATEVER HAPPEN TO LAST YEARS BILL BY ASSEMBLY MAN TOM AMIANNO , FOR THE TIERED REGISTRY SYSMTEM FROM LAST YEAR ? JANICE OR ANY ONE ANSWER

Tried looking for a follow up on this bill here on CARSOL. I did a google search and learned that this bill failed on May 29th. Back to the drawing board.

http://openstates.org/ca/votes/CAV00104432/

Okay I got convicted for oral copulation w a minor 288a (b)(1) didn’t have to register as sex offender this law is good for the community Bc for these type of cases these aren’t predators they are early 20s having sex with someone sex with 16 or 17s all I’m saying is these people aren’t whack jobs in my case the girl was month before 18 I was 3 months before 22 so it was a technicality but it sounds like I’m this horrible person that I’m not and now I’m paying g for it for the rest of my… Read more »

JANICE:

did this bill pass?

i have

261.5 (non registerable offense)
286b1 sodomy with minor under 18
288ab1 oral cop with minor under 18

can i get rid of my requirement to register?!!

No. The bill failed in May 2014.

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