General Comments Nov 2022

The Onion (satire)…. funny/not funny? 🤷🏻‍♂️

Frustrated Man Still On Waitlist To Register As Sex Offender.

@someone who cares… More thoughts on 1203.4…

PC 290 and 1203.4 do not conflict with one another, but rather run parallel. The best explanation was shared in Kelly v Municipal, 1958:

[4] A word should be said concerning the state’s contention that section 290 should prevail upon the theory that it is a special and 1203.4 is a general statute. They are not in that [160 Cal. App. 2d 46] category. They do not meet the test for the rule which the state invokes, declared in In re Williamson, 43 Cal. 2d 651, 654 [276 P.2d 593], in these words: ” ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute …’ ” Section 1203.4 deals with all probationers, including those who have committed none of the offenses mentioned in section 290. In addition, section 290 applies to some convicted persons who are ineligible for probation as well as to some who are eligible. Clearly, the rule invoked does not apply.

The parties have given considerable attention to the applicability or inapplicability of our holding in Truchon v. Toomey, 116 Cal. App. 2d 736 [254 P.2d 638, 36 A.L.R.2d 1230], interpretive of the word “conviction” as used in section 1 of article II of the Constitution, relating to loss of the elective franchise. We perceive no similarity, no conflict, and no problem. In the Truchon case we pointed out that the word “conviction” has been used in criminal statutes with varying meanings. As used in the constitutional provision there involved we held that “conviction” referred to a judgment which remained final, thereby differing from a mere plea or verdict of guilty. Here we are considering the use of the word “conviction” as it appears in two statutes. Section 290 uses it in both senses: After judgment, in respect to the convict who has served his sentence or who is released upon parole; during the suspension of imposition or execution of sentence (see Pen. Code, § 1203.1), in relation to the probationer. Section 1203.4, because it deals with the probationer, has reference to his status as a convicted person during the period of suspension of imposition or execution of sentence.

The first paragraph specially states that 290 cannot supersede 1203.4.

The second paragraph deals with the finality judgement of conviction. With a 1203.4 recipient, the final judgement is not final and temporarily exists during the probationary period. If the 1203.4 recipient fails probation, then the existing judgement is final. If the 1203.4 recipient successfully completes probation, then the judgement is withdrawn and replaced with a “not guilty” plea. The conviction no longer exists as granted by 1203.4 as well as the accusation/info against the defendant is dismissed.

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PC 290.007 violated 1203.4 as shared above.
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Not only does PC 290.007 violate what set as law in re Williamson (in Kelly), it violated two other CA constitutional laws in CA Const. Art 1, Sec 9 and Art 1, Sec 7(b). I will share how later in this post.

CA Const. Art 1. Sec 9 states, “law impairing the obligation of contracts may not be passed.”

CA Const. Art 1. Sec 7(b) states, “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”

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Why did 290.007 pass in 2007?
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Kelly addressed the punitive aspect of the registry in 1958. Around the 2000s, the registry was redefined from being punitive to being a regulatory scheme, belonging to a regulatory agency. There was nothing to defend if based upon the punitive aspect of Kelly.

No one sought to use “right to privacy” in place of the punitive aspect of Kelly.

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Right to privacy
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Right to privacy, or the right to pursue and obtain privacy, was amended into the CA Constitution in 1972.

1203.4 cites three contractual obligation upon successful completion of probation:
…. 1) Court withdraws original plea and enters a plea of “not guilty”
…. 2) Court dismisses the accusation/info against the defendant
… 3) Court releases defendant from all penalties and disabilities

Contractual obligations 1 and 2 fall under the umbrella of “right to privacy”, specifically the right to “pursue and obtain privacy”.

Under 1203.4, you are only convicted during the probationary period and no longer convicted after successfully completing probation, which Kelly shared that 290 recognizes this distinction.

But 1203.4 goes one step further. It dismisses the accusation and information against the defendant to further solidify one can say he or she was never convicted.

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Registry changes from criminal to regulatory agency and 1203.425
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When 290 changed from being quasi-criminal to a regulatory scheme/agency, it made Kelly v Municipal, 1958 not good law. A 290 registration officer is not the same as a law enforcement officer (LEO), otherwise any LEO can register you. Also, the registration officer cannot update any information with DOJ. Thus, we can say the registry is not a criminal agency.

On Jan 1, 2023, “the court shall not disclose information concerning a conviction granted relief pursuant to this section or Section 1203.4, 1203.4a, 1203.41, or 1203.42, to any person or entity, in any format, except to the person whose conviction was granted relief or a criminal justice agency”.

Point 1. Since the registry is not a criminal agency, then the registry cannot disseminate dismissed information nor disseminate a conviction since it no longer exists.

Point 2. Why the explicit explanation of the use of dismissed accusation/info? That was always implied that no one can use that dismissed information. But with “privacy rights”, that accusation/info being dismissed is protected by the CA constitution.

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Continue to register under 1203.4/1203.425
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Nowhere within 1203.4 nor 1203.425 does it state one must continue to register. 1203.4 does state which sex crime do not qualify for the program.

This omission is important because the law to continue to register resides outside of 1203.4, which brings us back to Kelly v Municipal identifying that 290 and 1203.4 run parallel with one another as well as 290 cannot supersede 1203.4.

290.007 violates the obligations of 1203.4 (CA Const. Art 1, Sec 9) as well as excludes two of the three benefits of 1203.4 to the registrant class in not recognizing a “not guilty” plea and dismissal of the accusation/info against the defendant by disseminating said accusation/info as true, current information (CA Const Art.1, Sec 7(b)).

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When is a Final Judgement Final?
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People v Banks, 1959

It is apparent from mere perusal of the pertinent legislation that a verdict or plea of guilty in a superior court criminal case is not ipso facto a final conviction. If judgment is pronounced it may be reversed on appeal and set completely at nought; thereby, if there is not a new trial and a new conviction the defendant will be a person who has not — for any purpose whatsoever — been convicted of a felony. The conviction may also be set at nought, except for expressly defined purposes, when jurisdiction and control over the defendant and the cause of action have been retained in the court under the probation law (with or without pronouncement of sentence) and the probation procedures have been fully executed.

If upon appeal, the court finds a defendant “not guilty” in a sex crime, then the defendant must be taken off the registry.

1203.4 has a similar outcome to an appeal where the court enters a “not guilty” plea, but why does the defendant continue to register?

From Kelly v Municipal, it denotes a defendant is only convicted during the probationary period. An appeal can take several years and the defendant is identified as convicted during that time period. If the court enters a plea of “not guilty”, then the defendant is no longer identified as a convict. Similarly, when a defendant successfully completes probation, then the court enters a plea of “not guilty” and the defendant is no longer identified as a convict.

One only gets onto the registry through a conviction. When there is no longer a conviction via appeal, the defendant is removed from the registry. Why is it different when a defendant earns 1203.4 and the conviction no longer exists, but must continue to register, especially under the umbrellas of “right to privacy”?

Continuing to be part of the registry states that the defendant is convicted of a sex crime. There is an obvious flaw between 290/SB-384 and 1203.4. This is what happens when a new law violates re Williamson, “right to privacy”, CA Const. Art 1, Sec 9, and CA Const. Art 1, Sec 7(b). In fact, it is straight libel by the state of CA to cite one is convicted of a sex crime when the court withdrew the the guilty/nolo contendere plea and entered a plea of “not guilty” as well as dismissed the accusation/info against the defendant. The state shares you have no conviction, but the registry disseminates you are convicted simultaneously cannot be reconciled logically. One cannot be both for the same case file at the same time.

1203.4 is a legal pathway to obtain privacy that is protected by the CA Constitution, but it isn’t being recognized nor extended to the registrant class by the non-criminal agency. In fact, the state has created a double jeopardy situation by proving oneself twice for the same case. Pre SB-384, a registrant must earn 1203.4 to be able to petition for the Certificate of Rehabilitation (CoR). A registrant must prove him/herself twice to earn a legal pathway to obtain privacy. For SB-384, a registrant does not need a 1203.4 to regain privacy. There are some registrants who do qualify for 1203.4 and those who do not, but 1203.4 is meaningless as two of the three contractual obligations are not being recognized and extended to the registrant class.

The passing of 290.007 while not recognizing “right to privacy” has created an illogically, inconsistent set of laws that contradict and override one another unconstitutionally.

You know people on here that have gotten involved in this sex registry scheme should take not. Sure their is a limit to everything. Are governments a “wolf in sheep’s clothing today”? This registry borders on Church and state issues or who is assumed innocent.
So who is playing the harlot today in Government. Every state that is enticing these people on this internet system. Law enforcement would rather not give warning instead they manipulate those ones and set them up for the fall. Government should see the errors of their ways with this scheme.

No true Christian with any type of salt in government would do such a trick on their neighbor. Government is not the supreme authority and yes God is still in control in fact all authority was given to Jesus Christ. Government seems to not understand that biblical proof and yes all righteousness is as filthy rags but playing the harlot to entrap will be governments downfall. Better with a little righteousness than great revenue without right.
I’m sure many don’t even understand that or should you look on your database …..

So where does all this commenting end. We have all been commenting about this sex registry for over 10 yrs or more and have we gained anything. While some can claim victory or a win. Who is deceiving themselves?

Seems Tim n WI want’s to solve this registry by its all about the database. David wants to solve it by his reasoning. Janice wants to solve it by her teams victories but who’s winning the war.Who’s really understands this registry in many ways. How many more have to suffer under this error of this Christian Government.

 OOps I said Christian Government shame on me. I would imagine two wrongs don’t make a right and remember One is conning and grooming while the other one is sucking this up in this registry type of game action of planning and scheming. So is a lot of this registry talk and comments really getting anywhere when people cut and paste what they think is beneficial. So is government casting stones today?

Are we all thinking like a child.. Maybe this should enlighten some to take a bit of ACTION and understand more about this registry.