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Living with 290

Living with 290: Dismissals Disregarded

Back in the mid 90’s I met a women. I was 28 and she was 31. We soon developed a passionate love affair. We even lived together but never married. She had odd behavior though. One minute she would be caring and attentive, the next minute she would erupt in violence and yelling. Any man with sound judgement would have broken off this relationship. I didn’t and I paid dearly.

Two years into our romance she was again acting very odd at a dinner theatre we attended together. She said she needed $3000 from me and stated she may even consider exotic dancing. I had helped her financially throughout but at that time I didn’t have that kind of money for her.

The next morning she abruptly broke up with me. Three days later I was arrested at work.

The charge was some form of date rape, laws written to tide the incidents of men slipping roofies to unsuspecting women in bars and social settings. The legislature never considers how laws can be used out of context.

Of course I never slipped any drugs to my lover. We had sex all the time. That doesn’t mean rape isn’t possible in such a relationship.

Once I read the police report I knew I had been duped. It was all fictitious. She was determined to burn me down in any way possible. She did. The ways laws are written I was unable to show the jury her mental problems. The evidence was suppressed, considered prejudicial vs. probative. Unknown to me at the time my girlfriend suffered from borderline personality disorder. Anyone in the mental health field will tell you that borderlines commonly bring forth to false allegations. There was your motive to fabricate that the jury never heard. If you’ve seen the movie Fatal Attraction that is a good example of my nightmare.

In the end, despite probations recommendation, my judge granted probation and once that was successfully completed I obtained a court dismissal per PC 1203.4. I ended up paying in the neighborhood of $12,000 in restitution. My crazy ex-girlfriend got her money…

As many of you know, the dismissal really does nothing for us since 1981. DOJ still publishes codes and crimes online as if no post conviction relief occurred. How this hasn’t been challenged in court I do not know. That is deliberate alteration of the true record. I’d challenge it but I’m basically indigent now monetarily after spending nearly $100,000 in lawyer fees over 25 years.

California’s poisonous PC 290.007 has followed me to where I moved. I didn’t move for favorable laws. I had a chance to complete a specific degree and then matriculate into my dream profession. That did happen despite the gloomy cloud over me. The current state I live in requires registration triggered by conviction only. They do not register anyone with post-conviction relief. Well, here in the south they don’t have to follow the law. Why? FYTW. I pushed it all the way to the Supreme Court where a justice named Bubba said that my dismissal “wasn’t the kind of dismissal they are looking for.” Now I’m registered here under a statute that reads: Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had.

“Resulting in a Conviction”. I don’t qualify for that one but once again PC 290.007 upends a dismissal. I keep asking for a copy of this alleged conviction and all I get is the finger.

Now, if I read it correctly SB384 will very well place some with only PC 1203.4 on record and nothing else in Tier III. How the hell did that happen? I’m not sure how many on here are affected in the same way. I do read a lot of posts here where PFR have dismissals only, no current convictions.

Is there an avenue to challenge such a designation? Lord have mercy! No record except a dismissal deemed Tier III. That is egregious without individual assessment and due process.

Thoughts?

Thanks to all for reading my sordid tale and God bless!

C J

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  1. Resident

    Sorry to hear your plight.

    I am in the same boat with a 1203.4, but more than likely will be stuck in Tier 3. For now.

    I saw for now, because when all this started a decade ago, we were all effectively lifers. Who knows what the next decade will bring? This year has shown us that registrants do not go out to act violently and that in-person registration is a pointless boondoggle. Prop 20 was voted down and the Tiered law went in with barely an outcry, qanon aside.

    All the best and stay strong!

  2. Amfost Acolo

    The more basic problem with “He Said, She Said” cases; is that under CA law, juries are instructed to take a victim’s word as fact, until proven otherwise by the defense. In my case, the alleged victim’s mother told the jury that I had hidden cameras and microphones planted in her house, and that I worked for the CIA. Kudos to Mr. G_____s for proving otherwise.

  3. SR

    I’m currently looking at the same situation. My record qualifies to be dismissed under 1203.4 but I’ll otherwise have to register as Tier 3. I might catch a break if they grant me the 17b reduction to a misdemeanor, but who really knows with how they treat everything 290?

    I don’t understand how a 1203.4 at the very least not remove you from the public website? Being on the public site and having to continue to register are not the same thing. 290.007 says it doesn’t end your duty to register. Okay. But it doesn’t say anything about your info needing to continue being public, telling everyone what you’ve been convicted of despite the fact that on vast majority of paperwork you can truthfully say that you have no convictions.

    Have you by chance tried contacted CA DOJ about this? It might be one of those things where they’ll take you off the public website… if you point this out to them. We know how bad all the actual checks and balances are, and “oops, our bad” is common without any restitution for the damage done.

    • C J

      I have contacted doj. They are coy and dismissive. It’s an automated response.

      I feel the only way to get a response is to name them as a defendant in a federal case. I’d give a grand to the cause right now if Janice and Chance had it in the pipeline.

  4. New Person

    I share the author’s empathy. I’ve had job opportunities denied because of the registry despite earning a 1203.4. PC 290.007 increased the penalty on registrants because the authors believed it was too easy to be removed from the registry, completely disregarding that the courts believed the crime only deserved probation or less. Please note, I am not a lawyer, but I have stayed in a Holiday Inn before.

    Often, I have pondered what is a way to call out this inequality of 1203.4 and PC 290.007. The only reason PC 290.007 was passed was because the in-person registration was no longer deemed as punishment, which is how Kelly v Municipal, 1958 was able to get registrants to de-register. Then PC 290.007 also introduced a way off the registry via Certificate of Rehabilitation, which is longer than the term of earning a 1203.4. In giving a way off the registry, 290.007 addressed the two main factors in Kelly v Municipal: punishment and a way off the registry.

    How do you prove 290.007 violates 1203.4 for a registrant?

    CA Constitution art I § 9
    … SEC. 9.
    … A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

    CA Constitution art I § 7
    … SEC. 7.
    … (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

    In 1203.4, nothing within that law says it prevents one from de-registering. The prevention occurs in a different penal code, 290. Kelly v Municipal did make a distinction that 290 cannot override 1203.4 as it was stated that a person is only a convict during probation, which works with 290. Yet, once one is no longer a convict, then one is no longer part of the registration program.

    Now, we cannot attack the punishment portion of 1203.4 because of the 2003 Smith v Doe decision. But there is one aspect of 1203.4 that we might have standing.

    The three benefits of 1203.4:
    …1 the court shall set aside the verdict of guilty;
    …2 the court shall thereupon dismiss the accusations or information against the defendant
    …3 and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.

    Option 2 is the only viable path to rule 290.007 unconstitutional. If your information no longer exists, then why is it being used in 290? Dismissal of the accusation or information is an immunity afforded to all who earn 1203.4, but it is not so if you are a registrant. (I wished it would be that easy to just point out to the courts, but if not, then continue on with my master plan… ) It would appear this violates Ca Constitution Art. 1, Sec 7 (b).

    CA Constitution art I § 1
    … SECTION 1.
    … All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

    Specifically: All people are by nature free and independent and have inalienable rights. Among these are pursuing and obtaining privacy.

    What makes option 2 eye opening is the very fact that California has its own “right to privacy” written specifically into its own constitution, amended in 1974. Thus the loss of privacy is a loss of liberty. The loss of privacy is then considered a punishment under the California constitution. If you can lose that right, then you can regain that said right. 1203.4 specifically states, “the court shall thereupon dismiss the accusations or information against the defendant.” How can your information still exist after that court order within 1203.4? How can 290 use your information that is said to no longer exist with the word “shall”?

    Here’s a law review in 1992 about the privacy law: https://www.law.berkeley.edu/wp-content/uploads/2016/12/Kelso-Californias-Constitutional-Right-to-Privacy.pdf

    This conflict was created by PC 290.007 by re-writing legislation that impairs the obligation of the contract of 1203.4. The impairing legislation violates CA constitution article 1, Sec 9. PC 290.007 use of the verbiage “regardless” is not a legal reason to impair the obligations of the contract for 1203.4 recipients and delay justice for several years. Instead of the probationary period as proof of rehabilitation to regain all the liberties lost, it has been extended to a minimum of 10 years via the Certificate of Rehabilitation, CoR. Again, no other convict who earned the 1203.4 needs to apply for the CoR to regain their liberties such as their information or accusation being dismissed.

    But you do pose another conflict when you identified that one can earn a 1203.4, but be placed in tier 3. Tier 3 is a lifetime registration. I do not know if there is a pathway for tier 3s to de-register. For this exercise, let’s assume there is no pathway off the registry. Welp, that runs afoul with Kelly v Municipal such that there is no pathway off the registry for a tier 3 registrant who earns the 1203.4. Also, it runs afoul of Art. 1, Sec. 1 of the Ca Constitution.

    If there is no way to regain your privacy as a tier 3 registrant, then it violates California’s own constitution as there is no way to pursue and obtain privacy.

    *****

    tl;dr version: 1203.4 states your private information or accusation is dismissed, but PC 290.007 unconstitutionally impairs the obligation of the contract set forth in 1203.4 where an individual regains his or her right to obtain privacy by using that information or accusation to continue on in PC 290 via the registry. Also, PC 290.007 violates equal protection with respect to immunities as 1203.4 dismisses the accusation or information against the defendant as that information or accusation is proliferated within the registry, which works against the defendant’s liberty to the right to privacy… the right to be left alone.

    • Ed C

      Regarding Smith v. Doe, the Supreme Court did not hold registration to be nonpunitive per se. Rather it only found Alaska’s version at the time not to constitute punishment. Since then, many states have implemented much harsher and more draconian provisions. The question is still open as to whether a specific registration implementation “has a rational connection to a nonpunitive purpose, or is excessive with respect to this purpose.” We should not consider Smith v. Doe to be a dead end, but rather a starting point.

      Given the mounting evidence that registries do not protect the public and that SOs in general have a very low recidivism rate, the term “rational connection” jumps out at me. Many states apply “an affirmative disability or restraint” by enacting residency or even presence restrictions. I believe there are a number of cracks in the “nonpunitive” wall that we can exploit. The Supreme Court must be challenged to provide guidance to the states, Congress and lower courts as to when the punishment line is crossed. Once a statute is held to be punishment, challenges based on ex post facto and–perhaps more importantly– bills of attainder are possible. The battle is not yet lost.

      Veritas.

    • C J

      I follow your posts on this site N P. No doubt your argument holds water. I’d suspect the other side would fall back to that old adage of “reduced expectation of privacy” in the paramount effort of public safety interests.

      I’m convinced that they publish dismissals as valid convictions online because it would undermine their bullshit cause. People would question it.

      For example, I’ve met many people in my life that know my case was dismissed. They are shocked and angry when they’re told I still have to register.

      One doesn’t go w the other. Actually, the registry as a whole needs to be abolished.

      Someone is responsible for pc290.007. The legislature I guess. That’s who we need to haul into court and mandate reason to a federal judge why 290.007 serves a rational interest in all this.

      I’m willing to bet out of thousands who earned dismissal there has been exactly zero recidivism after that disposition, or maybe .001%.

      • New Person

        Maybe no one’s ever refuted PC 290.007 to be unconstitutional as it impairs a contractual obligation under 1203.4 that your information no longer exists to be disseminated?

        1203.4 actually states you gain your right to privacy, your right to be left alone again. That right to privacy is a specific CA Constitutional law. The only reason PC 290.007 passed was because the state deemed in-person reporting wasn’t a disability. And since anything related to the registry isn’t a punishment, then there is no relief from the statutory program. Except, the “right to privacy” supersedes the statutory program that shares your private info.

        If your probation was a 3-year term, but PC 290.007 says you can’t get off the registry until at least 10 years have passed, then it is delayed justice for an additional seven years if PC 290.007 violates the contractual obligations of 1203.4 and Art. 1, Sec 1 of the CA Constitution.

        Delayed justice is justice denied.

    • C J

      I’ve read many of your posts. Of course your cause is mine too.

      The doj deliberately publishes convictions that no longer exist to shield bad law. Just imagine, our pics on the web as a public safety danger. Reason? Dismissed conviction.

      They’d have all kinds of people banging their door down demanding change.

  5. Detroit

    C J
    Read the Michigan Supreme Court decision in People v Temelkoski. You’re not required to register in Michigan. Actually, as the dust settles in the current pending cases, most offenders whose offense date predates 2012 will be off of the registry in Michigan.
    Michigan may be a cold state in January and February but 10 million people live here without a problem. I’ve never had the misfortune of dealing with the registry, but from what I’ve read, I would rather live through a January and February in Michigan rather than going through registry hell.
    Keep in mind that December and March don’t get bitterly cold and the other 8 months the weather is actually quite nice. Also, you can rent a 2 bedroom house in a decent neighborhood for $800 a month. Can’t do that in California.

    • C J

      My wife’s family is here where I’m at so we can’t move just yet.

      My wife does eventually want to go. She knows I can’t get fair justice here.

      It’s a sorna state. Makes California’s program look like a cake walk. Basically state custody, no joke.

    • C J

      I read that case you referenced. It’s a bombshell! A judge actually called it punishment if I read it correctly.

      We’re stuck in place for now. My wife’s elderly mother lives next door.

      • underdog

        C J- Your story is salient and palpable. And I am so sorry for everything you have encountered and endured. The most “criminal” component is that we live in a culture where the “victim” is bestowed automatic credibility when sexual activity is put into the equation. While my case was unfolding, prior to my incarceration, in Connecticut, I routinely attempted to combat accusations and stories that I knew to be either absolutely false or suspect enough to be questioned. When I asserted to my lawyer that much of what was said by the victim during initial interviews and in the presentencing statement were lies and/or unsubstantiated claims, I was told, ” It doesn’t matter. She’s the victim. You’re guilty. Nobody is going to give you any leeway. And it won’t look good to the judge if you challenge her.” So, because I was technically guilty of a crime, my right to challenge any charge against my character was squashed. During my parole hearing, the victim’s impact letter was filled with a new batch of lies and sketchy stories. I was granted parole and upon my release I spoke with a new attorney about challenging the unsubstantiated claims in the impact letter so that the letter could be removed. I was told, “You have no basis upon which to challenge her comments. She is the victim. She gets to say what she wants. Nobody is going to believe that she is fabricating anything, especially since you took a plea deal.” There were written letters, cards and notes that I possessed that contradicted most of what she said. I was told that these items would be of no value because it would be assumed that I had wielded my “power” over her, rendering her to be incapable of knowing what she was doing. When I asked what proof was there that I had “wielded my power”, I was told that it was assumed. So, no proof that I actually abused power. But it was assumed. And much proof to demonstrate that subsequent claims were false were considered null and void because of the assumed power play that never happened. I now live in California and am fighting against the parole agents that tell me that the conditions I have are warranted because it’s evident from the accusations and follow-up letters that I have “issues”. Mind you, my crime occurred over seven years ago; I have been out of prison for 3 1/2 years and have no marks against my record. And when I ask what “issues” I have, I am told that I should contemplate what I did to the “victim”.

        C J, embrace the support that you have and keep pounding away, in any fashion possible, at this insidious system.

        • TS

          Sounds much too much like the UCMJ system of our illustrious DoD with these same flaws, sadly.

  6. w

    The victim’s rights agenda spread like a virus, unfortunately hindering the rights of the accused. They basically only need a name and face and a story and they’ll convict you for whatever will stick. Victim protections and perks such as support animals and near-prosecutorial immunity allow accusers to get away with lies in their aid of the prosecution’s case against YOU.

    So you’re not really fighting an accuser, you’re fighting the system enabled by the existence of an accusation. Like the Eye of Sauron you are now suddenly on their radar. And they’re going to play some games with you, especially if you’re innocent. They have a backwards logic now it seems, get tougher on the innocent and utilize a web of legal traps to get people to reoffend in whatever way they can orchestrate. Sex offender stings, cellular and gps tracking, technical violations, more false allegations. Anything to keep burying the lie and prevent people from figuring out the truth.

    Not every incident is a crime, not every crime has a “victim”, not every “victim” is telling the truth. But sex offenses are a class they’re willing to bend over backwards to accommodate since they can be easily won.

    The “perfect sword”, even against the “shield” of our constitution.

  7. LPH

    @ w: sigh, just absorbing your words.

  8. Hopeful For Change

    CJ

    From what I understand, you can apply for removal no matter what the tier. Just know it won’t be as easy if you are on Tier III

    • SR

      I don’t think so. I mean, you can technically do that for anything, but there is no official exit off Tier 3 unless the only reason you are Tier 3 is solely due to your Static-99 score being 6+. For people who are Tier 3 because of their conviction penal code, there is currently no official exit.

      • Hopeful For Change

        Correct, no official. But you can petition the court. Just like if you are Tier II you can petition also. At least that is my understanding.

        • C J

          I would petition my original trial judge, but she’s retired. If she knew I was still on the registry after 25 friggin’ years she’d blow a head gasket. She knew the whole enchilada.

          Still, it’s a glaring punishment administered by the legislature. Deliberately ignoring or lending no value in profound judicial discretion. Deeming PFR high risk who have been cleared of underlying crime and no record of crime there after. Its a lawsuit in waiting. As I said before they deliberately cover it up online. No one would ever know you’ve been statutorily found not guilty by reading the Megan’s Law internet listing.

  9. Hopeful For Change

    CJ,

    Just wait until January and find out what tier you are actually on. The whole thing is an ever changing process. Even though you might think you are on one tier you might find out that you aren’t on that tier in January.

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