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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.

Janice has greatly improved my quality of life by challenging residency restrictions. It is so comforting to know that there is someone who is taking up for those of us who have zero support from any organizations including the ACLU. My tier is TBD (I assume it might have something to do with my gender), but I anticipate that I will be moved into tier three. It’s disappointing, but I have hope that it may change one day. When I was convicted, it was made clear that registration in California is for life for everyone. Now, that is not the case-only because of Janice.

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

@William,

I’m sorry to hear about the elevation of your tier. For the sake of the board, could you share more info about your situation so that some of us could shed light and possibly identify that Janice and ACSOL is working on cases involving your specific code and situation.

Info such as what was your conviction and charge, when was your sentencing, were you able to reduce your charge, and were you able to apply for the CoR? Was it a singular charge or more? Was it in CA (I’m presuming it was) or was it on a CA military base (you cited federal probation)?

Currently, Janice and team are looking into situations where certain convictions have been elevated from a lower tier to the highest tier. Maybe it’s possible Janice could help you with your situation.

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?

@CJ,

You should cite the case and leave the link identifying that a case dismissal was deemed not serious or violent. Then it should set precedent that should supersede any current law that tries to override that decision, provided all the laws have remained the same. If so then it would violate California Constitution Article 1, Section 9: A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.

What I want to know is if there any case that focuses on one aspect of 1203.4, the second immunity.
i) the court shall set aside the verdict of guilty
ii) the court shall thereupon dismiss the accusations or information against the defendant
iii) 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 i) identifies you are not guilty.
Option ii) identifies you regain your privacy as your accusation/info no longer exists
Option iii) relieves you from punishment due to your conviction

The operative word in all three contractual obligation of 1203.4 is “shall”. Listening to a lot of legal people on youtube, they all say that “shall” is a term that must be carried out definitively. If this is so, then the court has made your accusation/info against you no longer exists. If it does not exist, then how does a regulatory program continue to use that information/accusation that legally states your accusation/info no longer exists?

PC 290.007 and the new tier is law that over-writes current law. The only reason why they did it was they only looked at the punishment aspect (immunity iii) of 1203.4, not the privacy aspect (immunity ii). We don’t need any case law here if the immunity concretely states the court shall dismiss your accusation/info. You are granted this immunity when you qualify for the 1203.4 diversionary program.

And since I’m attaching this idea of privacy, the CA Const also protects the right to pursue and obtain privacy. 1203.4 succinctly gives an individual a pathway to pursue and obtain privacy once again by the courts dismissing the accusation/info. There are no exceptions within 1203.4 about the dismissal. Thus, PC 290.007 and the new tiered registry are in direct violation of the CA Constitution, Art. 1, Sec. 9.

If I can prove this correct, then that mean lifetime registration of any type is in direct violation of CA Const. Art. 1, Sec 1, the right to pursue and obtain privacy is an inalienable right. Liftetime registrants have no pathway to regain their privacy, which is a direct violation of the CA Constitution.

This tact attacks the fact the registry only uses private information as a regulatory scheme. It doesn’t address any punitive measures because it doesn’t have to use it.

New Person:

I’m picking up what you’re laying down. I’m all about filing a constitutional complaint based on your facts, the contract of dismissal and state constitution.

I’m not in state, but the nexus of California is a daily disability.

Lots of case law out there in respect to an accusation being serious or violent. The jist I got from research states the prosecution MUST PROVE a conviction is serious. Violent I think is narrowly construed in pc667.5.

People vs Rivera (Cal 2014) docket #H038702 is one case I referenced. It goes into detail about PC1192.7, how a penal code conviction doesn’t in itself constitute “serious”. It must be proven on the record.

It also states PC1192.7 only applies prospectively, not retroactively due to ex post facto.

How does it relate to this forum? The new tiered registry law references PC1192.7 in considerable depth in respect to tiering. Honestly there are so many conjunctions, sub paragraphs, references and connective words in the code it’s hardly readable.

Long story short: The legislature threw penal codes in tier III that are neither deemed serious or violent. Now, with that in mind how is lifetime registration rationally required in such a situation?

CJ,
BRAVO!!
I am in that exact situation. I plead guilty in 2002 to:
PC 288.2(B) Felony
PC 311.11 (A) Misdemeanor
PC 311.2(D) Felony
However, all are wobblers. But I was given a suspended sentence and got PROBATION and completed it flawlessly.
The 667.5 and 1192.7 speaks to Serious or Violent. Mine were not, in fact, I never touched anyone. It is truly incredible and outrageous that these codes are TIER 3.

Hoping that someday sanity will prevail and I will get off this Bull Shit!

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?

290(d)(1)(B): “This paragraph does not apply to a person who is subject to registration pursuant to paragraph (2) or (3).”

And 290(d)(2)(B): “This paragraph does not apply to a person who is subject to registration pursuant to paragraph (3).”

Curiouser & Someone Who Cares:

That is where it contradicts itself imho. My court paperwork attached to dismissal states “ALLEGATIONS OF PC1192.7.” Law definition of allegation = A claim of fact not yet proven to be true.

Tier one PC290(1)(A)(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.

Tier Three PC290(3)(C): The person was convicted of violating any of the following:

…about 70 or so iterations and codes.

My (dismissed) code is within that infinite sea of 70 + tier III possibilities, yet found by the court not to be serious or violent such as described in tier I language.

This is ripe.

I agree. I am in a similar situation, possibly even more ludicrous. My offense is also not defined as “serious or violent” per statute, was reduced per 17(b), and, in the language of the new tiered registry, the misdemeanor version of my offense isn’t even registrable. Yet there I be, tier 3 all the way.

@ CJ

That is a very good point, that is how I see it too. If it is a serious or violent felony then it is Tier III and should be proven, but if it is not considered either violent or serious and not proven to be, then it should be Tier I.

Many convictions are listed under “Tier Three PC290(3)(C)” which means that they would be considered Tier III even if they are misdemeanors. The argument here has been that Tier I mentions that they should be Tier I if they are both either misdemeanors or felonies that are not considered to be violent or serious. This contradicts with 290(d)(1)(B): “This paragraph does not apply to a person who is subject to registration pursuant to paragraph (2) or (3)” because many are listed on Tier III not specifying that they have to be felonies only.

The other key point is that you have to be convicted, so essentially an expungement should automatically bring you to Tier I because you can legally say you have not been convicted.

The whole thing is very contradicting and would be a good way to attack this law, not sure why this hasn’t been brought up sooner or more often. I’m not a lawyer but I feel like this could be a good valid point in court.

@ AJP/Curiouser/someone who cares:

ACSOL’s suit is down the same lines. They’re attacking 288(c) because it will benefit the most on an equal protection argument and not going full nuke mode so they don’t scare the judges. Heaven forbid we tear the whole monstrosity down in one blow. (insert sarc). That’s why it’s done incrementally. It’s a tough ordeal to be patient, especially with lots of us being on this crazy train for twenty, thirty or more years.

Studying the law, heck even PC 667.5(c) has got to be proven, let alone PC 1192.7. California has quite a few codes thrown in 667.5(c) and in many situations would not even be close or in the same hemisphere as violent. They even have the big, prosecutor favorite catch all code within 667.5(c) that’s tier II.

I know Chance and Janice are busy. I’ll still mail them the specifics of what we’re alluding to. They may already be aware, but once again, the penal code alone does not mean it’s serious or violent. It must be proven on record. I’m not sure all registrants are aware of that fact.

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.

I think you’re overestimating how much influence ACSOL was able to exert in terms of the tiered registry bill and taking your frustrations out on them, when, they are the only true force trying to work for the benefits of all SOs.
This is not some simple task, the complexities of the many laws and regulations enacted by overzealous politicians makes it very difficult.
Perhaps you should take step back and breath and not place the blame on ACSOL and be a bit more realistic about the type of uphill battle the registry represents. The public perception of the registry makes any changes very challenging.

Well, thank you for your comment. But that is not the point. The point is you don’t wait to be given a voice or given control of a conversation, you take it. You inspire with strength of presentation, you grab emotions. You can’t lead unless you can command. Being so timid in the approach gets you this tier proposal. That does take ability to do. Until that is done, this group stands no chance. You had your one chance, you missed it. And we are at the peak of the best time to get it all now anyway, the atmosphere is as good as you can ever hope, its right now or never, not little side wins of details the opposition has thrown your way.

You don’t need to tell me about the laws and politics, I know a lot about it, more than most. I can’t believe the commentary here about them requiring registration be done in California, complaining there is no language about that in the law — this group does not even know that issue was already settled at appellate court years ago, the court does not care whether it explicitly states that. I won’t name names, but I was flat out told I didn’t know what I was talking about, and now they act surprised about this. No excuse for surprise, I warned about that over and over and over. Rest assured, the Justice Department and the prosecutors all knew and wrote it the way they did accordingly. They knew exactly what they were doing, it was intentional, they all knew about the appellate decision, this group did not and would not listen to me about it. It scafres me that this goruphas not revewed all gthe apealate decisoinover the years regarding 290, something like this point should never slip by, and you should listen to people who really do know instead of just saying it is not so.

And no, I am not taking out my frustration, I am basically saying I told you so, as most here would not listen, they were too caught up in a bad action plan that they did not understand but would not listen, they were sure they knew, but they knew nothing. And nwothey are surprised to have all the issues I shouted about but coudl nto get this group to listen.

Gee, this group even backed an increase registration time from 7 years to 10 years for three misdemeanors. Those were able to stop registration after 7 years by getting a COR; now they have to wait 10 years and face pretty much the same requirements as a COR in order to get relief. I raised hell about that, again, to no avail, I was suposedly wrong. Again, the Justice Department and prosecutors knew exactly what they were doing, that was no mistake.

I pointed out that a lot of people who got relief years, decadas ago by getting 1203.4 relief after probation have no reason to be aware that they have to start registering again, the relief was taken away, and any question about that was settled in the Ninth Circuit case that was sent to the California Supreme Court, Doe v. Harris. That had to be addrssed in this tier plan, but it was not. Those people should have their relief reinstated, they earned it, they performed as required in order to get it, and they did. And it was been taken away years later, and they are subject to arrest for not registering — why would they give any thought to registering, they were relieved of that. They might have served a year of probation and then thrfhg 1203.4 been relieved of having to register. But under this tier proposal, they could have to come back now and register for nine years to get what they already earned. Again, I was told I was wrong — no, I am not.

You are right, this is the only group doing something, but it is losing because it is not being strong, it is begging instead. Nobody is going to follow this group until it steps up and leads. That is, this group needs to take control of the conversation, TAKE it and command, that is how you lead.

As for the idea of incrementalism — this group shows it has no idea what that is, incrementalism is a step by step plan to advance to a goal, but this group is letting itself be distracted by a million hits, details, coming from every direction instead, only very isolated wins, none a broad advance or creation of a foundation for such. Little, isolated wins is NOT incrementalism.

This group thinks the ACLU is on our side, but no, it is not, it has not been since the Clinton days, even before that, which is why registration grew so fast with no significant opposition. The ACLU has no problem with registration, it simply thinks it should be at a medium boil rather than a rolling boil. No, a medium boil is not acceptable. It is not the ACLU of old, it has made one garbage settlement after another on all kinds of issues. A good example of the ACLU today is in Los Angeles, where it made such a BS settlement over the homeless people that a lawyer, Carol Sobel, had to break from the ACLU and carry the fight herself — she lead, she took control of the issue, she commanded, she did not ask for some little nothing and say please. And with that, we have real action against the city to do something, and a federal judge is closing in on the politicians (they have been trying to thwart any help for the homeless for literally 20 years now, Mayor Garcetti has always and still is the worst enemy of the homeless), taking the steps and time needed to take over the issue and control what the politicians do. That is what the ACLU refused to do, they did only a garbage settlement instead that did literally nothing for homeless, it was nothing but some window dressing.

Yeah no one’s gonna read that whole wall of text you wrote.
Regardless of your frustrations, you seem to have no real practical sense of the difficulties that ACSOL is faced with. You just want to complain but are you actually doing anything yourself?
I think you just want someone or something to blame.

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.

@DavidH

Time on probation counts towards your time waiting to be eligible. So you will not need to wait an additional 5 years to petition.

Per the tiered registry FAQ you can petition on or after your birthday when your tier minimum time expires. I am a bit unsure if this is for 2021 or also every year after.

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