Source: California Attorneys For Criminal Justice
By Pat Ford, Esq.
Effective January 1st, 2021, Senate Bill 384 restructured the sex offender registration requirements, establishing three tiers of registration, primarily based on the offense of conviction, for periods of at least 10 years (tier one), 20 years (tier two) or life (tier three). (See Penal Code section 290(d).)
Section 290.5(a)-(c) provides the procedure for a person to seek termination from the sex-offender registry if the person has completed the mandated minimum period. Once the termination request is made, the prosecution may seek a hearing and present evidence to establish that community safety would be enhanced by continued registration. (Section 290.5 (a)(2)(3).)
This week, the Court of Appeal published a case explaining the nature of the inquiry that must take place when the prosecution argues for continued registration in this context.
In People v. Thai (G060963) ___ Cal.App.5th ___, the court found the trial court erred in denying the defendant’s petition for termination of his registration requirement. The court accepted the prosecutor’s argument that the tier two defendant’s termination after 23 years would result in safety concerns for the community.
The court’s ruling was focused on the facts of the offense, which the prosecutor had argued were egregious. But the appellate court found the facts of the offense alone do not establish that the defendant was a risk to the community 23 years later. The original offense was a lewd act committed on a 12 year-old victim. The prosecution presented no evidence of prior offenses, and no evidence that defendant refused to complete counseling. Defendant’s comments to the probation officer demonstrated remorse and willingness to participate in a treatment program. The attorney general faulted the defendant for not providing any evidence that defendant completed a treatment program or a current risk assessment. But it was the prosecution’s burden to establish that defendant was a current risk and it could have sought an assessment.
The new law will likely result in many petitions seeking termination from the registry. This case makes clear that a prosecutor seeking to block the termination can’t rely on the facts relating to the original offense, and must make a more thorough showing focusing on current facts relating to dangerousness.