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]
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.
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 forced and the minor is a willing participant. The California Supreme Court and the Appellate Courts have found that mandatory, lifetime registration violates equal protection laws under these circumstances.
In People v. Hofsheier, the California Supreme Court ruled that mandatory lifetime sex registration pursuant to Penal Code section 290 for a violation of Penal Code section 288a(b)(1) was unconstitutional. In Hofsheier, the 22 year old defendant was convicted of engaging in oral sex with a minor. The Supreme Court stated that if the defendant had been convicted of Penal Code section 261.5 (unlawful sexual intercourse with a minor) he would not have been subject to mandatory lifetime sex offender registraition. Using the rational basis test, the California Supreme Court determined there was no rational basis for treating convicted offenders of Penal Code section 288a(b)(1) differently than those convicted of Penal Code section 261.5.
Several cases following the Hofsheier ruling have now applied the Hofsheier analysis and ruled that it also applies to the following Penal Code offenses:
1. Penal Code Section 286(b)(1) (People v. Thompson)
2. Penal Code Section 286(b)(2) (People v. Boyette)
3. Penal Code Section 288a(b)(2) (People v. Garcia)
4. Penal Code Section 288.7 (People v. Tiery)
5. Penal Code Section 289(h) (People v. Ranscht)
6. Penal Code Section 289(1) (People v. Gomez)
Existing Law
Penal Code Section 290 (California’s Sex Offender Registration Law) requires that defendants convicted of committing specified sex crimes must register with the California Department ofJustice as a sex offender.
This Bill
AB 1640 amends Penal Code section 290 to eliminate the registration requirement for sexual offenses which have been determined to violate equal protection laws, thus bringing the Penal Code into alignment with the ruling by the by the California Supreme Court and the subsequent rulings by various Appellate Courts under the Hofsheier reasoning. Under this proposal courts would still retain their discretionary power under Penal Code section 290.006 to impose sex offender registration in any case the court deems it appropriate.
While the number of cases filed would not be affected by this legislation, the number of trials would be decreased as lifetime sex offender registration is often the sole obstacle in reaching a disposition. Additionally, moving forward there would be a decrease in the number of Hofsheier writs of mandate.
FOR MORE INFORMATION — Contact Stephanie Burn, Office of Assemblymember Jones-Sawyer 916/319-2059
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?
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.
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 process now, will update everyone on how that goes.
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Tim, in response to your last comment: 288a(b)(1) is oral copulation with someone under 18 years of age.
There is a separate penal code for oral cop. of someone under 16 years of age. Furthermore, there are other penal codes for oral cop. involving violence and coercion. This means that 288a(b)(1) is oral copulation with someone either 16 or 17 years of age with no violence or coercion, etc.
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?
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 of 290. Later, the court extended that thinking to at least some cases of indecent exposure. But the Legislature never took the step to have indecent exposure taken out of 290.
Now, our right wing court has overturned those rulings, saying even with all these horrors now added onto registration, it is no punishment at all much less unconstitutional cruel and unusual punishment. As such, since indecent exposure was never taken out of 290 after the court rulings giving relief, everyone with such a conviction is subject to registration. But those with lewd conduct convictions are not. Event he one who won that indecent exposure appellate ruling (and a subsequent one also ruling the same on indecent exposure) and was able to stop registering now has to register again. If the Legislature had taken indecent exposure out of 290 after those rulings, people convicted of indecent exposure would not have to register today.
So, this action is good for the long term, whereas relying on the case law could easily turn out to be only short term relief.
But while this is good, I think the lawmakers should have shown just a tiny bit of gumption and tacked on something just a bit more daring, like removing indecent exposure from 290, or even removing all misdemeanors from 290 — the public is not worried about misdemeanants and I’m sure would agree to take them out. The hotheads out there who would scream about it would be taken to be stupid, crazed loonies. Taking misdemeanors out of 290 is not a difficult sell to the public — or at least allowing misdemeanants to stop registering after completing probation and getting 1203.4 relief, as once was the case.
This bill should be supported — but I think CA RSOL and all of us should also strongly urge it be amended to be expanded to other easy offenses, which would mean misdemeanors. If they were willing to take more than just that tiny risk they should actually seek to take all offenses out of 290 for which registration is not required by the feds — that could be sold to the public very reasonably, although yes, it would be a little riskier politically than simply taking out misdemeanors.
That is to say, this is a good bill, but it hurts that it falls so short. (I will note, I’m against all registration, at least post probation or parole. And I would continue to push for it to be eliminated for everyone even if some offense I might have to register for were singularly taken out of 290.)
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.
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?
@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 judge won’t let in …try getting local civil rights activist to tell the assigned so called ‘private’ attorney to correct the record..the sham attorney maintained the tampered with record from the process to correct…this was before sentence…they don’t correct a record or correct injustice in orange county..they cover up their misconduct ..they don’t correct their reckless disregard to truth justice.
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 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.
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1640&search_keywords=
Now I am totally confused… I was reading it on the leginfo site.. I see nothing but “except subdivision (b)” .. I also see they mentioned 288, 288a .. so if there is a (b) attached to 288 or 288a its not included on the list.. So this does apply to oral and lewd as long as the victim age and offender age falls under the category….
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?
@ 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 keep me posted.
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?
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 and the Public Safety Committee fOR California (PSCC) IS Green. So That also will help me to know which one (I have been sending my e-mails to the Red Colored home page OF THE Senate California of Public Safety (SCOPS).
Neil B Fisher
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