Provide a Personal Statement to Avoid Denial of Termination from Registration
When a sex offense conviction involves particularly serious circumstances and the person is applying for termination of registration, it is best to provide the court a personal statement. This personal statement will provide insight into the crime and explain what the person has done since the offense to avoid re-offending.
In People v. Malbry (07/26/2024) No. B328627, the California Court of Appeal denied termination from sex offender registration despite over 30 years of good conduct since the original offense. Malbry was convicted of a particularly serious crime due to molesting a child every day for three years. Nonetheless, his actual conviction offense was only a Tier 2 offense and he served a six year prison term. For over 30 years he had good conduct, and he filed with the court to terminate sex offender registration under Penal Code section 290.5. When the district attorney opposed the petition, he filed three support letters of family and neighbors and documentation from his business. He did not provide a personal statement.
The failure to provide a personal statement made the uphill battle of his case nearly insurmountable. In sex offender registration cases with very serious accusations, Mr. Reagan always counsels his clients to provide a detailed declaration. This declaration explains 1) insight into why they committed the offense, 2) what they have done since to avoid reoffending, 3) any therapy or counseling completed, 4) expressions of remorse for the offense, and 5) steps that will be taken/support networks that will be used to prevent reoffending once registration is terminated. If the client has adequate funds, Mr. Reagan will suggest an independent expert for a current SARATSO evaluation. In Malbry, the attorney did not take those steps, which resulted in the denial.
The Court of Appeal analyzed seven factors to determine eligibility for termination of sex offender registration. “If the district attorney requests a hearing, the district attorney shall be entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration. In determining whether to order continued registration, the court shall consider: [1] the nature and facts of the registerable offense; [2] the age and number of victims; [3] whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); [4] criminal and relevant noncriminal behavior before and after conviction for the registerable offense; [5] the time period during which the person has not reoffended; [6] successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and [7] the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.” (§ 290.5, subd. (a)(3), italics added.)”
Because the facts of Malbry’s case were similar to a violation of Penal Code section 288.7, which, if it had been in existence at the time of his conviction would have resulted in non-terminable lifetime registration, the court found that factors One through Three weighed in favor of denying registration. Factors Six and Seven also weighed against Malbry because he presented no evidence of a lowered SARATSO assessment or completion of any treatment.
It is quite possible that Malbry had no treatment and no insight into his offense, and that is why his attorney chose to avoid a personal statement or provide evidence of treatment. Nonetheless, Mr. Reagan would take steps to create treatment and more insight by recommending six months to a year of therapy or counseling prior to filing for termination if none had occurred prior. What’s more, Mr. Reagan has in depth conversations with his clients to help understand why the offense occurred and why the person will not offend in the future (“Malbry’s current risk of sexual reoffense is substantial because he has demonstrated no insight into his misconduct,” the court wrote). These conversations will be turned into a declaration that will give the court greater confidence the client will not reoffend. The same result - denial - might not have occurred if Malbry had given the court a personal statement and at least some evidence of treatment.
Mr. Reagan has experience with sex offense cases in the counties of San Francisco, Alameda, Contra Costa, Santa Clara, and Marin. With an office in San Leandro, Mr. Reagan is available to help his clients file for relief from registration throughout the Bay Area.
