MEGAN'S LAW, JESSICA'S LAW, AND 290 REGISTRATION ISSUES (updated 2/18/10)
By Michael Chastaine; (916) 932-7150
Please note: the information contained below is not intended to be legal advice and may not apply in all cases or situations, it does not establish a client-attorney relationship, and is intended ONLY to be used as a guideline of some of the possible considerations.
On February 1, 2010, the much awaited California Supreme Court decision in In re E.J. 2010
Cal. LEXIS 589 finally came out. The Court addressed the question of whether the provision of Penal Code section 3003.5(b) applies to persons on parole. The Court specifically did not address the
issue of whether a person who is not on parole but who has
to register per Penal Code section 290 can live within 2000 feet of a school or park. (See footnote
5 of the opinion.) It appears
(based upon the 2007 decisions of the Federal Court - see below) that if your conviction occurred prior to the passage of Jessica's law -
November 7, 2006 - and you are not on parole, that restriction does not
apply.
If you are on parole, regardless of the date of your
conviction, parole can impose those restrictions upon you. The Supreme Court rejected the arguments that the application of 3003.5 to parolees violated retroactivily or Ex Post Facto laws. However, the case was remanded to the trial courts to determine if the statute is unreasonable, vague and overbroad as a condition of parole as applied to each of the petitioners. I suspect it will be several more years before we have an answer to that question. (Updated 2/18/10)
On Friday, February 9, 2007, US District Judge Lawrence Karlton of the Eastern District ruled on the issue of whether the 2,000 foot prohibition applies to people who were convicted before Jessica's Law passed. Judge Karlton ruled, "The Court finds that the law does not apply to individuals who were convicted and who were paroled, given probation or released from incarceration prior to its effective date." This means that the 2,000 foot prohibition does not apply to anyone who was convicted prior to November 7, 2006.
A week after Judge Karlton's ruling, US District Judge Jeffrey White in San Francisco came to the same conclusion. Judge White ruled that the 2,000 foot limitation under Jessica's Law does not apply to the roughly 90,000 sex offenders already living in California's communities before the measure passed. (Updated 3/23/07)
There are numerious bills in the legislature that impact people who have to register as a sex offender. You can track all the pending bills at http://www.leginfo.ca.gov/bilinfo.html .
If you have any questions, please feel free to call for a consulation at
(916) 932-7150 - and see below for additional information that could be of interest.
If you have been convicted of an offense that has required you to register as a sex offender pursuant to Penal Code section 290, there is important information for you to know.
Megan's Law Megan's Law allows the state to post your picture and address on the Department of Justice website if you have been convicted of certain sex offenses. The date of conviction does not matter. In certain cases, it is possible to have your name, address and picture taken off the website. If your conviction is for a misdemeanor violation of Penal Code sections 647.6 (annoying or molesting a child under 18 years of age) or 243.4 (sexual battery) you simply have to send the DOJ a petition for exclusion. This petition can be found on the DOJ website (
www.meganslaw.ca.gov) . I can assist you with this process.
(916) 932-7150 If you are on the DOJ website for any other offense, you can only be excluded if:
1. You were granted, currently are on, and/or have successfully completed probation. If you went to state prison you are NOT eligible for exclusion; AND
2. The victim was a family member. This is defined as son/daughter, step son/daughter, mother, father, sister, brother, grandchild or grandparent. Family member does not include nephews or nieces; AND
3. The crime did not involve oral copulation or any type of penetration. It is the burden of the petitioner to prove this by the police report, probation report, Doctor's report evaluating the offender or other like official document.
If you are unsure if you are eligible for exclusion, call me for a consultation.
(916) 932-7150 Jessica's Law (Proposition 83) Jessica's Law is a very complex and multifaceted initiative that passed into law on November 7, 2006. It will be several years before most of the provisions have been interpreted by the courts. The legislature may also make changes and amendments. However, at this point it appears that the 2,000 foot prohibition (preventing all 290 registrants from living within 2,000 feet of a school or park) does NOT apply to anyone whose conviction pre-dates the passage of the bill. (See update above regarding Judge Karlton's and Judge White's rulings.) Be aware that Attorney General Jerry Brown has maintained that the measure applies to persons who were released before November 7, 2006,
"if they changed their residence after November 7, 2006." To date, no court has ruled on this issue.
If you are on Parole the Parole Board may require you to comply with the provisions of "Jessica's law" even though the offense for which you are currently on parole is not a sex offense or your offense pre-dates the passage of Jessica's law. The Parole Board can impose greater restrictions on you so long as it is reasonably related to your offense or record. It is a different issue once you are off parole. If you are on parole, it is unlikely that you will be able to successfully challenge the conditions of parole. However, once you are off parole your ability to challenge such limitations improve. If you have questions regarding this, please call.
The law regarding GPS monitoring remains largely unclear. However, it does seem clear that any person who is on parole for a registerable sex offense can be required to be hooked up to a GPS for the duration of parole. It is not clear whether it is a lifetime requirement if the crime or conviction predates the passage of the law. It is also unclear if a person on parole for a non-registerable offense, but who is required to register as a sex offender, can be placed on the GPS under this law.
If you are unsure about how Jessica's Law might apply to you, call me for a consultation.
(916) 932-7150 Other 290 issues
Some recent developments in the law MAY allow for a person to get a judicial determination that they no longer have to register. If you were granted probation, the victim was over 14 years of age and the crime only involved a single victim, it MAY be possible to go back to court and request that the court exercise its discretion to find that you should not have to register. This is not an easy legal maneuver, but think of the benefit of not having to register ever again.