Relief From Sex Offender Registration

The new tiered registration system for sex offenders came into effect in 2021. This summary is focused on the basic operation of the law which allows those required to register under Penal Code section 290 to apply for removal. If you have any questions about tiered sex offender registration, please contact the Law Office of David Reagan.

The Tiered System

The new registration scheme found in Penal Code section 290 creates three tiers: Tier 1 requires registration for 10 years, Tier 2 requires registration for 20 years (although some will be able to apply for relief from registration at 10 years), and Tier 3 requires registration for life. Moreover, to be relieved from registration, instead of obtaining a certificate of rehabilitation (for Tier 1 and 2 offenders), a new petition process was created that makes it much easier to obtain relief.

Tier 1

The offenses eligible for Tier 1 include all misdemeanor sex offenses. The primary exclusions are violations of Penal Code section 288, subdivision (c), and people with multiple convictions of Penal Code section 647.6. The standard registration term for Tier 1 is 10 years.

Certain felony convictions are also eligible for Tier 1. However, the law is very nuanced and makes it difficult to lay out in print because Tier 1 felons are basically felons not listed in Tier 2 or Tier 3. As such, reading Tier 2 and Tier 3 will give greater insight on the excluded felonies, but the most common convictions not eligible in Tier 1 are rape, sodomy, subdivision (c) or (d) of section 288a, section 288, section 288.5, and subdivision (a) of Section 289, amongst others.

Tier 2

The offenses eligible for Tier 2 are those felonies that are not included in either Tier 1 or Tier 3. The standard registration term is 20 years. The following offenses should be found in Tier 2:

• Second violations of Penal Code section 647.6

• Section 285

• Subdivision (g) or (h) of Section 286

• Subdivision (g) or (h) of Section 288a

• Subdivision (b) of Section 289

• Any other offense not listed in Tier 3

Tier 3

This tier requires sex offender registration for life and includes the following persons:

• A conviction for registrable offense and then a subsequent conviction for a sex offense that is a strike

• A person who was been adjudicated as a Sexually Violent Predator

• Murder, kidnapping, or assault while attempting to commit a sex offense.

• Subdivision (b) or (c) of Section 288

• Section 288.2

• Section 288.3, unless committed with the intent to commit a violation of subdivision (b) of Section 286, subdivision (b) of Section 288a, or subdivision (h) or (i) of Section 289

• Section 288.4

• Section 288.5

• Section 288.7

• SARATSO score high above average

• A person with multiple violations of Penal Code section 288, subdivision (a)

• Life term parolees

• Mentally Disorded Sex Offenders

• Most rape convictions

• The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 288a.

• The person was convicted of violating paragraph (1) of subdivision (a) or subdivision (d), (e), or (j) of Section 289.

• The person was convicted of a felony violation of Section 311.1 or 311.11 or of violating subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, or 311.10.

• Other less common offenses

Petitioning For Relief From Registration

The new tiered registration allows registrants to apply for relief from registration after a certain amount of years, usually 10 to 20 years. The time begins to run upon the persons release from incarceration for the conviction, so their release from jail or prison for the original conviction. However, the period is tolled - meaning the running of the time period is paused - when a person is incarcerated for a subsequent crime and then convicted. The time does not run is if the person is arrested and found not guilty or the case is dismissed. Another way time can be added to the 10 or 20-year period is a conviction for failing to register (1 year is added for each misdemeanor conviction and 3 years is added for each felony conviction for failing to register).

Previously, sex offenders were required to apply for and obtain a certificate of rehabilitation to be removed from sex offender registration. Beginning in 2021, a different process will be used to be relieved from registration under Penal Code section 290.5. This process involves filing a petition to the superior court of the county where the person is required to register. This petition must contain proof of current registration. The petition will then be sent to the police department and district attorney, who will review for eligibly. If the district attorney thinks that the person is not eligible (for instance, the person was convicted of another sex offense, is a danger to the community, or is petitioning too early), the district attorney can ask for a hearing. Should no hearing be requested, the court can grant the petition and relieve the person of registration.

The district attorney can also ask for a hearing for public safety reasons. At a public safety hearing, the court shall determine "if community safety would be significantly enhanced by the person’s continued registration.” The factors to consider include:

• the nature and facts of the registerable offense;

• the age and number of victims;

• whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours);

• criminal and relevant noncriminal behavior before and after conviction for the registerable offense;

• the time period during which the person has not reoffended;

• successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program;

• 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.

The court can grant the petition if it determines that there is no safety risk. If the court denies the petition, it will set a new time for application from one year to five years out from the denial.

Some Tier 2 registrants can apply for early release after serving only 10 years of registration. The Tier 2 registrants eligible for early termination are those whose “(A)...registerable offense involved no more than one victim 14 to 17 years of age, inclusive; (B) the offender was under 21 years of age at the time of the offense; (C) the registerable offense is not specified in subdivision (c) of Section 667.5, except subdivision (a) of Section 288; and (D) the registerable offense is not specified in Section 236.1.” Additionally, the person must not have any subsequent convictions. The court will hold a hearing on the risk to public safety.

Certain Tier 3 offenders can apply for early termination after 20 years, but the eligible group is very limited. The eligible people include only those who would have been placed in a lower tier based on their conviction offense but for a very high SARASTO score.

In short, the petition process is improved because many more sex offenders are eligible for relief, particularly, felons not in Tier 3. What is more, the process to apply for relief from registration is much easier because eligibility for relief is not eliminated by recent subsequent convictions (so long as they are not sex offenses). Previously, many sex offenders were ineligible for a certificate of rehabilitation because the requirements for good conduct were very high. Unfortunately, those convicted of violations of Penal Code section 288, subdivisions (b) and (c), are still ineligible for relief from registration. This is problematic because charging 288(b) and (c)'s is standard in many district attorney offices, even when other charges apply. Moreover, many people who pled guilty to 288(b) and (c)'s did so 15 or 20 years ago when information of sex offenders was not available to the public via the Megan's Law Website. Therefore, they were not aware of the ever widening consequences of registration when they resolved their cases. Nonetheless, the new law is an improvement over the registration system that has been in place for the last 20 years.