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
Seems like we’re dealing with a bunch of far right people that have infiltrated the DOJ.
I just donated $100 toward this action. I encourage and call upon everyone to donate what you can to ACSOL now so that Janice and team can fight the Department of inJustice and possibly the State of California in order to correct these ludicrous problems!!! I personally am affected by 2 of the flaws mentioned above. I’m sure many of you are also affected by this nonsense based on posts that I’ve been reading on this website.
Please, folks, donate what you can. Hopefully this will not need litigation. Hopefully the DOJ and the legislature will see the err of their ways and fix these problems. However, something tells me that with a certain individual in office in San Diego County (LGF) that it is going to be an uphill battle to say the least.
Thank you, Janice and team, for everything you do for us!
Initially, a person on felony probation for certain offenses could apply for an exclusion from the ML website because it was assumed that person would eventually complete their probation and be granted a 17b. Once a person obtained a 17b , they no longer had to apply for an exclusion, they were automatically removed from the website. They were considered to be convicted of a misdemeanor from that point on.
To not “ honor” or “ recognize” a 17b is tantamount to placing certain offenses in higher tiers based on what they were charged/ arrested with instead of what they were ultimately convicted of. A slippery slope if there ever was one.
Very well spoken Janice. But I don’t agree 100 percent. Let me explain. A 288 C is not necessarily less severe from a 288 a and I will state my reason why. ( And Yes I understand the sentence is a little less with the C) I was 18 and convicted of 1 felony 288 A due to my relationship with my GF at the time, whom was 2 days away from 14. DA’s for some reason loved using this Penal Code section. Now, how can someone whom is for example 50, whom sexually violates a 15 year old, less severe than my situation. I cannot agree with a 4 year and 2 day age difference, that was consensual, yet the other example was not. But I 100 percent agree Janice that a 288 c should not be a Tier 3. That is completely insane. But I would like you to honestly weigh my thoughts here. If we start making a bunch of noise about this situation, aren’t you afraid legislatures will want to undo this and put 288 A on Tier 3 now and 288 C on Tier 2, which 288 C should be on 2? I can honestly see this happening and affecting over 40,000 registrants. I understand this was attempted in the past by a legislator, but by filing lawsuits I can see the apple getting cracked open and all 288 a’s will be screwed, regardless of their situation and age difference. Wouldn’t it have been better to create noise once the registry is up and running in full swing as a way to then say “hey how can this be right”. I think we are knocking down the wrong path right now and feel 288 a’s are gonna get toasted in the end. And was 40,000 registrants worth that risk? I am not so sure. And I feel the same if I was a 288 C and not an A. But you are the expert and god bless you for all your hard work. I agree 100 percent with the rest of your journal. I would welcome any response to this as I want to further educate myself in understanding this better. I have only been with ACSOL for a short time but I just feel like 288 a’s are getting thrown under the bus as our crimes are “presumed to be worse than others”. Be safe everyone.
Thanks Ms. Bellucci for this article. While frustrating to think that so many of us have had our offenses reduced and still face lifetime registration, it also is of some comfort to know that the error is being addressed. I seldom have any faith in this system, but think this is one area where justice (?) will prevail.
Ms. Bellucci,
Would filing a lawsuit contesting the tier designation of my Misdemeanor offense of tier 3 vs. tier 1 be good, or should I wait for your team to pursue other avenues. According to my attorney, it would help me in my immigration application to show the lower designation.
As it relates to the registry, I sent this letter to President Biden,
Mr. President,
You have touted using science and facts to address so many of the issues we as a country are facing. I applaud you for this.
My question to you is, do you hold those same beliefs as applied to the National Sex offender Registry?
Countless studies by experts have concluded that the registry does more harm than good, leaving registrants homeless, jobless and at personal risk by vigilantes. And that the bloated size of it, due to so many low level felonies and misdemeanors being included, has made it impossible to manage by local law enforcement.
I challenge you to assign someone to look into this and I am sure you will come to the conclusion that, while needing a means to monitor high risk felons of ANY offense, the registry is not the way a progressive society should treat its citizens.
Thank you for showing leadership in this difficult time.
I felt hitting on some of the key points ( joblessness, homelessness, law enforcement , being an enlightened society) that he has brought up both during his campaign and since taking office would be smart to include.
I understand these are screened and the odds of this reaching him are slim, but what do I have to lose, right?
@Way to long and others. Reproofing is good but who is rebuking who. While their are many offenses that classify a person in a tier level who judges another person. Sure getting caught up in a sting operation via computer or other means should have to have some justification and yes many want to justify their actions. So what should one say Let God be true or let man justify their means by their man made “actions”. Note that I said actions.
Yes an action can be a positive pull or negative. even in a court of law. I’m sure many didn’t even get a chance to speak up in these judgemental actions during one’s plea. And yes some spent considerable amounts of money to just get some correction. So are many of these sex operations or stings via internet approved or do many go to far and are covered up as in tier assignments. So were does classification come in? I don’t even understand this classification myself or is this some SAT score for HS or college prep in the worse way.
I know the board’s position on this matter, such as describing it as only a declaration of successfully completing probation, but it’s never been challenged on state/federal constitutional grounds.
Does the state’s legislation have a rational relation to it’s intent when it keeps a resident on the registry indefinitely with ONLY a PC1203.4 on record and nothing else?
Unconstitutional imho.
I plead to a PC 243.4a wobbler. Summary Probation! 17b and later expunged, I was later removed/excluded from the ML website once I submitted to the DOJ a copy of the 17b.
Be nice to see a challenge to tier 3 inclusion for all non-violent, non-contact offenses such as 288.2 as well as CP.
ok, my case was 1986 riv co convicted of a 288a i was 18 victim was 13 1/2 given 6months weekends , one year probations one year of registration, after succesfully , charge would be droped to a243 misdeomenor .. never completed my weekends are registered , 5 years later 1991 back in court for probation violation not doing terms of probation,,, next 3 years state prison ,,relesased , never any other troubles to date ,,of any kind,,,im a teir 2 now , would have been no tier if sucessful with original plea ,,,,but i will say its been a long long journey to this point hopefuuly this nitemare is over on my birth day 2022….
1. I’m convinced the tiered registry’s “petitioning” process is a big money making scheme for all involved. The petitioning process appeases all special interest groups, from CASOMB “treatment” programs and prosecutors, to defense attorneys. Removal should be automatic.
2. The Static-99R/SARATSO is a scam.
3. Registration is punishment.
@ Ditto
I agree with you. If you’re now in a position that you have an off ramp from the registry I’m elated for any and all.
This is more of a view to those that currently have no off ramp or have many years before such comes to fruition AND have no judicial record of conviction.
PC290.007 is unconstitutional on the aforementioned reasoning supra.
We’ve kicked this around before. Doe vs Brown as I recollect was more about PC 290.46 and public disclosure. It never was a constitutional violations complaint.
First off I would like to say support the Cause Donate show up speak up and let your voice be heard.
I guess alot of people have a problem with people being convicted of 288(a) And placed in tier2 While supposedly lesser Non-contact crimes are being placed in tier3.
The The difference is age gap and premeditation.
If an18 year old and A 13 1/2 year old participant in consensual sex it’s not the same as a 25 year old and a 13 year old and I agree it’s all BS at the end of the day but that’s the way the DOJ sees it.
Kamala Harris and other politicians in America agree that 288(a) belongs in tier3 the real reason their not is because their are so many of them like over hafe the registry to keep all them on would Defeat the purpose of shrinking the registry and making it more manageable
Do they have a back up plan for 288(a)’s
you best believe they do anyone convicted of 288(a) and commits and crime no matter if it’s a sex crime or not is going to prison for a really long time under 667 pc Californias 3 strike law so in reality its chess not checkers and ACSOL knows how to play the game very well.
Good luck
Speaking of Kamala Harris…
She wasn’t always successful at throwing the book at people.
Interestingly she lost the Calif Supreme Court case People vs Park 2013 in trying to uphold enhanced sentencing on a prior felony that was reduced to a misdemeanor via 17b for a subsequent felony offense .
She/ her team tried to assert that a 17b doesn’t vacate a felony -because the defendant pled guilty to felony initially, and so was a felon at one point in time, and that narrow window in time that the defendant was a felon was enough to pronounce them convicted of a felony.
The court disagreed with her and the decision of the appellate court was reversed. Once reduced to a misdemeanor- it IS a misdemeanor. Period.
The case has probably been brought up on this forum before, but it is worth a revisit for anyone interested in reading the case study.
https://www.leagle.com/decision/incaco20130513044
Lesson number one:
Don’t propose, pass, and let legislation take effect without knowing how to apply the law.
This is like drafting, submitting, and getting approval for a new office building with only a partial concept for how to actually build it. Then after some years breaking ground by starting to construct the 8th floor of 30 above ground and the 21st floor of 130 below ground simultaneously without much consideration for plumbing, electrical, or any prep work needed on the land itself prior to construction.
Setting aside out of State and Federal offenses that California doesn’t know what to do with yet; which is bad enough after three years. It is incredible how California still hasn’t figured out how the new law impacts all the in state offenses. Imagine any other area of life if someone or a company could sit around for years then just say “yeah we are still working on it and it could be a few more years before we figure it out. In the meantime here’s some only quasi useful stuff depending on the circumstances.” I am looking forward to all the court challenges on process alone.
@ Nondescript
Nice work. Half or more in court is referenced stare decisis.
Good comparison on the arson registry and how PC1203.4 provides relief without jumping through hoops.
Arsonist recidivism isn’t lower than the law in question here.
Everything about the tiered registry is wrong wrong wrong. Down w/ the registry. This tiered registry is completely flawed and there are so many unconstitutional things about it. I hope this tiered registry means the end for the registry because there are like a zillion things wrong with it!!
Thank you Janice and everybody who cares. Your work shines a light at the end of a long and dark tunnel. That tiny flicker has kept me going and (dare I say it) given me…hope.
I’ve donated $200. Wish it could be more. And if I can donate again in the future, I will.
Janice, outstanding! I think I get where you are going. I do have one point of clarification. You stated or made a comment about 17b. Are you stating that the tier law or the general law would need to be changed so that 17b wouldn’t be recognized? I can’t comprehend how or why the DOJ could or would do this. The magic comment is that they have had 3 years to prepare. I personally feel the DOJ is very overwhelmed at the moment and I don’t think there is any Judge who wouldn’t recognize 17b. I do think PC 1203.4 might be questionable, if it’s a felony without the 17b. The difference between not having a 17b with a PC 243.4 is a tier 1 going straight to a Tier 3.
Flawed laws from a flawed state. Is this what Kalifornia hopes to spread to the rest of the country and to the world?
What a true sickness this whole afair is.
It is time for suit in CA SC on privacy and individual risk assessment issues. Prefer a credible and competent legal entity such as ACSOL files it before I do. I am game to be the Plaintiff (and I will be in my own case if no one else files soon) as I have been on the registry for over 13 years now, have graduated and am continuing college for my masters in STEM courses, have had no contact with law enforcement other than to register 3 or 4 times a year because of college, and have been really a model citizen since being released from incarceration. Frank Lindsey would be a better candidate but even my story makes a credible argument.
I have a late Feb court date in LA for a COR. Deadline July1st. No arrests/detainment. 24-25 year old PC 243.4 – 17b – expungement – summary probation. 4 degrees. Any advice? They have a new very liberal DA.
See, TMZ is a perfect candidate for a suit in CA. I just do not see how or why a suit is not happening. Someone please enlighten me, especially when Hawaii, Alaska, Washington and I believe Oregon even have all declared individual risk assessments are required in all cases.