Sex Offender Registration Laws in California
California law has provided for sex offender registration for more than 60 years. (See Wright v. Superior Court (1997) 15 Cal.4th 521, 526.)
The Legislature enacted section 290 in 1947, requiring persons convicted of certain sexual offenses to provide a written statement, fingerprints, and a photograph to county law enforcement, and to inform law enforcement of any change of address. (Stats. 1947, ch. 1124, 1, pp. 2562-2563.)
Sex offender registration proceeded uneventfully over the following decades, with little tinkering with the registration rules.
The Wright court could correctly observe section 290, even as late as 1994, was still "part of a comprehensive scheme enacted in 1947 that assumed substantially its present form in 1950." (Wright, at p. 526.)
In 1994, however, the Legislature extended the scope of sex offender registration. Until then, former section 290 provided for "mandatory registration" of persons convicted of specified sexual offenses--those persons, and only those persons, had to register. (People v. Hofsheier (2006) 37 Cal.4th 1185 at pp. 1196-1197; former 290, subd. (a)(1)(A).)
The 1994 amendment allowed for "discretionary registration." (Hofsheier, at pp. 1196-1198.)
It granted the court discretion to order sex offender registration for persons convicted of "any offense ... if the court finds ... the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification." (Stats. 1994, ch. 867, 2.7, pp. 4389-4390; former 290, subd. (a)(2)(E).)
Thus, "discretionary registration does not depend on the specific crime of which a defendant was convicted. Instead, the trial court may require a defendant to register ... even if the defendant was not convicted of a sexual offense." (Hofsheier, at pp. 1197-1198.)
In 1999, the California Supreme Court held in People v. Castellanos (1999) 21 Cal.4th 785, that sex offender registration does not violate the federal and state constitutional bars against ex post facto laws because it does not constitute punishment. (Castellanos, supra, 21 Cal.4th at p. 796.)
It noted, "the method of analyzing what constitutes punishment varies depending upon the context in which the question arises. But two factors appear important in each case: whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent." (Id. at p. 795.)
As for the first factor--legislative intent--the Castellanos court held, "the sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment." (Castellanos, supra, 21 Cal.4th at p. 796.)
It noted, "The sex offender registration requirement 'is intended to promote the " 'state interest in controlling crime and preventing recidivism in sex offenders.' " As the Supreme Court consistently has reiterated:
"The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. " ... ... The statute is thus regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts.' " (Ibid.)
As for the second factor--punitive effect--the Castellanos court held, "Nor is the sex offender registration requirement so punitive in fact that it must be regarded as punishment, despite the Legislature's contrary intent. Although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve the purpose of the statute." (Castellanos, supra, 21 Cal.4th at p. 796.)
The registration burden at issue was substantially similar to the original 1947 registration law: the "lifelong" requirement to "furnish to the chief of police of the city in which the offender resides (or to the sheriff of the county, if the offender resides in an unincorporated area) a written statement, fingerprints, and a photograph, which are forwarded to the California Department of Justice." (Id. at p. 790.)
The effect of sex offender registration changed when the voters approved Jessica's Law in 2006. Section 1 provides its short title, "The Sexual Predator Punishment and Control Act: Jessica's Law." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, 1, p. 127.)
Its official title on the ballot, prepared by the Attorney General, is "Sexual Offenders. Sexually Violent Predators. Punishment, Residence Restrictions and Monitoring. Initiative Statute." (Id., official title and summary of Prop. 83, p. 42.)
Jessica's Law made dozens of changes to the laws regarding sex offender registration and sexually violent predators (SVP's).
As the Legislative Analyst noted in the ballot analysis, Jessica's Law "Increases Penalties for Sex Offenses" by "broadening the definition of certain sex offenses," "providing for longer penalties for specified sex offenses," "prohibiting probation in lieu of prison for some sex offenses," "eliminating early release credits for some inmates convicted of certain sex offenses," "extending parole for specified sex offenders," "generally making more sex offenders eligible for an SVP commitment," and "changing the standard for release of SVPs from a state mental hospital." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 83 by the Legislative Analyst, pp. 43-44, boldface & )
Jessica's Law imposed a new burden on registered sex offenders by amending section 3003.5 to add the residency restriction. (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, 21, p. 135.) The new subdivision provided, "Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather." (Ibid.; 3003.5, subd. (b).)
It also added a subdivision providing, "Nothing in this section shall prohibit municipal jurisdictions from enacting local ordinances that further restrict the residency of any person for whom registration is required pursuant to Section 290." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, 21, p. 135, italics omitted; 3003.5, subd. (c).) Jessica's Law imposed other increased restrictions, including requiring certain sex offenders to be monitored by global positioning system at their own expense for life. (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, 22, p. 135; 3004, subds. (b), (c).)
The purpose of the Penal Code section 290 registration requirement is to ensure that convicted sex offenders are readily available for police surveillance. The triggering of a sex offender's five-day notice period is a question for the jury. That question is not dependent upon whether the offender stayed at a residence five or more consecutive days. The duty to register arises when the sex offender enters a jurisdiction and ends when he or she leaves the jurisdiction. (People v. Poslof (2005) 126 Cal.App.4th 92, 103 24 Cal. Rptr. 3d 262; People v. Davis (2002) 102 Cal.App.4th 377, 382 125 Cal. Rptr. 2d 519.)
While the registration requirement of section 290, former subdivision (a)(1)(A) applied only where the sex offender "is residing" in a given jurisdiction, appellant cites and we are aware of no authority for the proposition that a person "is residing" in a jurisdiction only when staying at a place of residence--that is, an address--that will remain open to that person.
The verb "reside" is defined by the Random House Dictionary of the English Language (1973) in pertinent part, as "1. to dwell permanently or for a considerable time: He resides in Boston." (Id. at p. 1220.) Former subdivision (a)(1)(C)(vii) of section 290 (currently 290.011, subd. (g)), defined the term "residence" as "one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address ... ."