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CaliforniaJanice's Journal

Janice’s Journal: Tiered Registry Law and Its Early Implementation Significantly Flawed

The Tiered Registry Law, passed in 2017, became effective this month more than three years after it became law. During that long period of time, more than 100,000 people convicted of a sex offense closely watched as the California state government slowly released information regarding the law’s implementation.

One positive step in the implementation process was the public release of draft forms that registrants will be required to use when petitioning for removal from the registry. This step included both the opportunity for the public to comment on the draft forms as well as publication of revised forms which included many of the changes recommended by ACSOL and others. The final petition forms, however, have not yet been made available to the public.

Another positive step is the publication of answers to Frequently Asked Questions by the California Department of Justice (CA DOJ). This document has been updated annually, and does answer some important questions. For example, in November 2020, the CA DOJ revealed that a registrant’s tier designation will not be posted on the Megan’s Law Website. However, despite its length (eight pages), the CA DOJ’s FAQ document fails to answer several questions addressed later in this column.
Unfortunately, the number of positive steps in the Tiered Registry’s implementation process are limited to the few steps described above. And they are outweighed both in number and in scope by both the language of the law, as well as the discretionary decisions taken by CA DOJ, the state agency tasked with its implementation.

Perhaps most significantly, the current language of the Tiered Registry Law violates the equal protection clause of the state constitution because it assigns less severe offenses to Tier 3 while it assigns more severe offenses to a lower tier. For example, individuals who committed the same acts with a victim 14 or 15 years old and convicted of Penal Code Section 288(c) are assigned to Tier 3 while individuals with a victim under 14 years old and convicted of Penal Code Section 288(a) are assigned to Tier 2. And individuals are assigned to Tier 3 after being convicted of the non-violent, non-contact offense of possession of unlawful images, the same tier as those convicted of violent contact offenses, such as forcible rape.

In addition, the CA DOJ has already stumbled during the first 30 days of its implementation of the Tiered Registry Law. First, the agency has issued tier assignment letters to a large number of individuals stating that they have not yet been assigned to a tier. One of those individuals, ACSOL Treasurer Frank Lindsay, was convicted of one offense more than 40 years and the agency has had more than three years to determine his tier. To make matters worse, the agency’s letter told Frank that he is not eligible to petition until he receives his tier assignment, which could take up to two more years. If Frank adheres to the agency’s limitation, he would not be able to petition for removal from the registry when he is otherwise eligible to do so in January 2022. ACSOL believes that California law allows individuals like Frank to petition despite being placed in a tier-to-be-determined category, and is making this case to the CA DOJ.

Second, the agency is failing to take notice of the changed status of some individuals convicted of a wobbler, that is, a felony that has been reduced to a misdemeanor. Examples of a wobbler can be found in some sections of sexual battery, Penal Code 243.4. The agency’s decision to do this is not supported by law which states that a felony reduced to a misdemeanor is a misdemeanor for all purposes unless another law creates an exception to that law which the Tiered Registry Law does not. The result of this mistake is that individuals whose felonies have been reduced to a misdemeanor are being assigned to Tier 3, which requires lifetime registration instead of Tier 1, which requires 10 years registration.

In addition to the situations described above, there is another situation affecting individuals convicted of a sex offense in California who now live in another state. Some, but not all of those states, only require individuals to register in their state if they are required to register in California. And yet the same individuals are not able to petition for removal in California because they do not live here. The result is that the individuals are required to register in their current state although they would be eligible to petition for removal from the California registry.

These are but a few of the flaws identified so far in both the Tiered Registry Law and its implementation. ACSOL is addressing these flaws first through formal communications with the CA DOJ, planning for a series of lawsuits and possible legislative solutions. ACSOL will report its progress regarding these plans on the ACSOL website in the future. Please stay tuned.

— by Janice Bellucci

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This new tier system is stupid. My (false) conviction is for 18 USC 1466A with only a single year in “prison” and three year “probation”. They want now a lifetime on the registry? This is stupid, your time on the registry should at-least be no more than your prison sentence.

New Tiered registry:
Hello, I am a 290 a registrant who has been out of custody and off probation for 7 years. I have lived in complete compliance with all the registration rules, I’ve not just been a model citizen but a productive member of society for the last 10 years. Yet recently I found that I’d been transferred from the lowest risk tier of registration, to the highest! This has been devastating for me. It literally took what little hope I had of living a somewhat normal life and shattered it. After my prison term I joined a forensic therapy course that lasted the term of my federal probation which was 5 years. As you know, Federal probation terms are very rarely reduced but I got off a whole year early because of my outstanding compliance to all the rules- even my probation officer pretty much stood behind me, in fact he asked if I’d ever be willing to come speak to other probation officers and give them direct feedback from my own perspective and experience while being on probation. My risk assessment was as low as possible. I also joined a 12-step program 11 years ago and haven’t broken that time to this day, and the therapy class, I still attend it from time to time just to show my support to the new members. I try to give them hope that they too can have a good life after either being in prison or being on probation. But let me say this, when I learned that my registration tier level went from the lowest to the highest, I really lost hope. See I haven’t done anything wrong but am being punished. If ever there was a case for cruel and unusual punishment, this is it. This isn’t just wrong, its George Floyd wrong. In the future if there is anything I can do to help change this, I am here and willing,
Thank you, William

Here’s a question for the legal scholars.

A dismissed conviction(aka PC1203.4) almost three decades ago was deemed not serious or violent. The prosecution couldn’t prove that element nor did such elements exist. Registration from then until now was disclosed(as of 2005), zip code only. The penal code is now listed in tier III.

Sound legit? Or, is something fishy about such a tier designation?

Why can’t someone interpret this part of SB384: “(1) (A) A tier one offender is subject to registration for a minimum of 10 years. A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” Does this not spell out than any felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 should be Tier I? Where is the fine print?

A nice ACSOL lawsuit is a good way to start unflawing it!! 🥳👏👏👏

https://all4consolaws.org/2021/02/ca-lawsuit-challenges-tiered-registry-law-provision/comment-page-1/#comment-266212

Hello everyone this is an idea that I’ve came up with and reached out to both of California Senator and three of the Representative in the flaws I see in Senate Bill 384.

I am coming to you about the Senate Bill 384 the tier levels are fine the problem I see with the bill is Tier One is the least severe category and include crimes such as misdemeanor sexual battery. Offenders can petition to be removed after 10 years. My question is why does someone have to wait until after 10 years to petition to be removed from the registration if the crime is least severe? I believe if the individual completes their probation, caltrans/community labor, Certificates of Rehabilitation, and doesn’t get charge with another crime within the time frame they have to serve they should be able to petition to get off the registration list early and have the max an individual who’s listed in tier 1 can be on the registration list is 10 years. You might be asking yourself why should we consider this and I would say we let some individuals who committed worse crimes be able to get off of probation or parole early. So I believe individuals that have to be on the registration list should have the same opportunity. If you have an question about tier 2 you can do the same plan I suggest for tier 1 but the max for Tier 2 would be 20 years. Every individual that qualifies to be remove from the registration list early could apply once every new year.

Let me know what you guys think of this purpose.

You know, everything you are complaining about are the things I warned about when you supported this bad tier plan. You let the prosecutors make a plan and supported it. It was devious from day one, and I said so many times and loudly. And the prosecutor touted here as good, Jackie Lacey, has been voted out of office as too much of a hardliner and too conservative, replaced by the progressive Gascon. I argued when the proposal was going through to stop siding with Jackie Lacey, she was the enemy, not our friend, she made sure the plan was an exceptionally devious one, it was not what it looked like to people here.

And how many times did I have to shout that we would get only one chance, we had to make it right then, not think it a step in the right direction. No, we were going to get one step only, especially now with the governor facing a likely recall election, she sure isn’t going to sign anything to help us now.

This is not a plan for which to try to fix detail by detail. The best end result that can produce is an oppressive piece of garbage. You’re trying to argue to reduce from Tier 3 to a lower tier, when t he offense should not even be in 290! That’s not an acceptable argument. That is just shocking to hear, apparently this group thinks misdemeanants should have to register, I can assure you the ACLU does.

Gee, even the issue of living out of state — I screamed about that, and you just insisted I was wrong. NO I wasn’t, and now you have the proof, a horrible way to find out, but you, as a lawyer, should have known, that question was already decided by the appellate courts. Your fight against that now will go the same way it went before, the appellate court has already ruled on it, and without any language about it in 290, as you say is the argument now. No, the court says it does not matter.

This tier plan should have been loudly decried and rejected. This group should have presented a finally written legislative proposal itself, at least to show the lawmakers the difference. Instead, all it did was let the enemy control the discussion and argue about THEIR points.

This group should have fought to eliminate registration for all misdemeanors, and all felonies fro which federal law does not require registration. The entire issue of wobblers would be gone with that. And none convicted for a misdemeanor should ever have to register, but gee, at least do it like it used to be, anyone who got probation could stop registering once they got relief under 1203.4. But no, this group did not push to eliminate misdemeanors from registration nor even to put it back like it had been until Clinton make registration national.

Retroactive? I pointed out how those who had been relived of registration under 1203.4 were retroactively required to start registering again when the law was changed in the mid-1990s. Again, you insisted I was wrong. Well, no I wasn’t, they lost their relief. Those who were not informed, or are out of state, probably are those who are on the list of people who are failing to register, they might get arrested at any time when instead their relief should have been restored. This group did not even argue about it, insisted I was wrong.

Gee, why argue about minute details of how misdemeanors are being handled instead of arguing they should not be in registration at all?! The public is not worried about misdemeanants. That argument can win support. Why am I the only one making it? Broader approaches are the only way to go, never let them take over the conversation with minute details that are nothing but devious, they are the territory for twisting things out of shape. The devil is in the details, I said that. But this group supported a tier plan overloaded with details up the yin yang, all of them devious.

I am very repulsed to hear complaints now that I voiced before this was adopted and was told I was wrong about. And this group still is going to argue every last detail, and in the end, even those are won, the end result is still garbage. You are just continuing the failed approach of when this tier proposal was adopted, you’re not even learning.

May I ask some one for this information, please:

My sentence did not include any jail time. I received 5 years probation. The month and year of conviction is May 2002

I would be able to petition for removal from the registry 5 years after after May of 2022, or in May of 2027? sighs, I’ll be 72 years of age! oh my birthday is in July, if that matters.

For those of you who got a SARATSO score, were you told you were scored or is this something that was done without your knowledge? Would the score have to be disclosed to your attorney and/ or be put into the court minutes?

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