CLEAN YOUR RECORD, CALIFORNIA

William Daley, Help Line Attorney
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The Scarlet Letter of the 21st Century
Penal Code § 290

In the 1850′s adultery was the social stain on one’s reputation. At that time, people convicted of adultery were required to wear the scarlet letter “A” prominently on their clothing. They were branded for life in their community and were made the subject of scorn, ridicule, and disdain. Nathaniel Hawthorne in his book “The Scarlet Letter” wrote about the cruelty and hypocrisy of this practice.

Today our system of branding is much more sophisticated. A person convicted of a sexual offense is required to register as a sex offender for the rest of his life, wherever he lives. The registration was originally designed as an aid to law enforcement to track individuals and was not available to the general public.

That changed with the passage of “Megan’s Law” (laws throughout the US that make the names of sex offenders available to the public). First issued on CD’s and then available on 900-information phone numbers, the Sex Offenders Registry went public. In some cases local law enforcement officers even went door to door announcing the location of a sex offender living in a neighborhood. One cannot forget the sight on the evening news of mobs of people demonstrating in front of the home of someone on the Registry. Today, restrictions limit where a registrant can live, what occupations he or she can hold, and even if a GPS ankle bracelet must be worn.

The Sex Offenders Registry has become the new Scarlet Letter. As Hester Prynne (the central character in The Scarlet Letter) could not remove her “A” from her clothing, today our legislature has made it nearly impossible to remove one’s name from the registry. This is true even if the registrant is rehabilitated. This is true even if decades of living an exemplary life have passed.

The Evolution of Sex Offender Registration Requirements in California 1960-2006

1960

Expungement of Criminal Record Penal Code § 1203.4

In California a defendant was once able to have his criminal record expunged after successfully completing his sentence and probationary period. This was done under the provisions of Penal Code § 1203.4. In 1960 in the case of People v. Taylor 178 Cal. App. 2d 472, the court of appeals ruled that the granting of an expungement of one’s record under Penal Code § 1203.4 relieved a defendant from registering as a sex offender under Penal Code § 290.

1982-1994

Misdemeanor Convictions

In 1982 the California Legislature added Penal Code § 290.1. That code stated that granting an expungement of a sex offender’s record under Penal Code § 1203.4 did not relieve the offender’s duty to register as a sex offender. Penal Code § 1203.4 was blocked and offenders had to register once again.

However, a life-time registration for a misdemeanor conviction was held to be cruel and unusual punishment by the California Supreme Court. (In re Reed (1983) 33 C3d 914 and In re King (1984) 157 C.A. 3d 554) Therefore, from 1982 until 1994 the requirement to register for misdemeanor offenders ended upon the completion of probation based upon the case law cited above.

1982-1994

Felony Convictions Certificate of Rehabilitation Penal Code § 4852.01

Penal Code Section 4852.01 allowed the Superior Court to find that a defendant had been rehabilitated and recommend to the Governor that a Pardon be granted. A defendant had to first obtain an Expungement of their record under Penal Code § 1203.4. Until 1994 the granting of a Certificate of Rehabilitation relieved a defendant convicted of a felony of the duty to register.

1995-1996

Felony and Misdemeanors

From 1960-1995 the requirement to register ended with the completion of the sentence or of probation. Effective January 1, 1995, however, the California Legislature passed laws to make misdemeanor offenders to register as sex offenders, disputing that life time registration was cruel and unusual punishment. The new legislation also made it more difficult to seek expungement.

The new requirements for misdemeanor convictions mandated that a defendant had to obtain an expungement of his record under Penal Code § 1203.4, as well as a Certificate of Rehabilitation from the Superior Court after a period of seven years. The requirements for relief from registration became the same for felonies and misdemeanors during this time.

July 8, 1996

Right to Grant Relief from Duty to Register Removed from Courts for Most Felony Sex Offenses

The California Legislature effective July 8, 1996 removed from the Superior Courts the right to relieve certain felony sex offenders from the duty to register.

The offenses that could no longer get relief from the Superior Court were: Penal Code Section 207 or 209 committed with the intent to violate Section 261, 286, 288, 288a, or 289; Section 220, except assault to commit mayhem; Section 243.4, provided that the offense is a felony; paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261; Section 264.1; Section 266, provided that the offense is a felony; Section 266c, provided that the offense is a felony; Section 266j; Section 267; Section 269; paragraph (1) of subdivision (b) of Section 286, provided that the offense is a felony; paragraph (2) of subdivision (b), subdivision (c), (d), (f), (g), (i), (j), or (k) of Section 286; Section 288; paragraph (1) of subdivision (b) of Section 288a, provided that the offense is a felony; paragraph (2) of subdivision (b), (c), (d), (f), (g), (i), (j), or (k) of Section 288a; Section 288.5; subdivision (a), (b), (d), (e), (f), (g), or (h) of Section 289, provided that the offense is a felony; and subdivision (i) or (j) of Section 289. (This left misdemeanors and a few felonies unaffected and still able to obtain relief from registration)

From July 8, 1996 until January 1, 1997 the only method to be relieved from the duty to register for these designated felonies was by a Governor’s Pardon. To grant a pardon, the governor needed information from the courts. The first step was to obtain an Expungement of your record under Penal Code § 1203.4. The second step was to obtain a Certificate of Rehabilitation. A certificate of rehabilitation was not granted automatically. It required evidence presented at a court hearing that the individual was in fact rehabilitated and worthy of a pardon. The District Attorney was present at these hearings and could contest the granting of a Certificate of Rehabilitation. If a Certificate of Rehabilitation was granted, the information was then forwarded to the Governor to decide to whether or not to grant the pardon.

January 1, 1997

Courts Completely Eliminated from the Process for Certain Felonies

Effective January 1, 1997 the California Legislature eliminated the right to obtain Expungement of Records under Penal Code § 1203.4 for certain designed sex felonies (listed above).

Effective January 1, 1997 the California Legislature eliminated the right to petition the courts for a Certificate of Rehabilitation under Penal Code § 4852.01 for certain felonies (listed above). Currently the only method to obtain relief from the duty to register as a sex offender for those designated felonies is to obtain a Governor’s Pardon. However, since the courts have been totally eliminated from the process, who is going to gather the information necessary for the governor to decide if a Pardon is warranted? The only answer to this dilemma is for your attorney to gather and present the evidence of rehabilitation to the Governor and request a pardon.

2006

Jessica’s law, passed by the voters in 2006, prohibits certain sex offender from residing within 2000 feet of public or private schools, or of a park where children regularly gather. The Department of Corrections enforces this restriction as a mandatory condition of parole. To date, this restriction has been upheld by the California Supreme Court against general challenges. The opinion does, however, recognize that the residency restrictions, as applied in particular communities, may violate the Constitution, and placed the responsibility for individualized determinations on the local courts.

The only good news in recent years was the recognition by the courts that no sense to require registration for oral copulation with a minor age 17, and not for intercourse with the same minor. As a result, those required to register under the mandatory provision for offenses with minors above the age of 13 have the opportunity to ask the courts to exercise discretion on the question. It is important that courts revisiting registration must evaluate the defendant as he is today, and not as he was at the time of the offense. This is one area where leading an good and productive life can result in getting off of registration.

Conclusion

Only misdemeanor and a few non-designated felonies can still obtain relief from the procedure of obtaining an Expungement of Records and a Certificate of Rehabilitation.

The duty to register under Penal Code § 290 is the modern day “Scarlet Letter”. Relief from registration can be obtained. However, it is like the albatross around the neck of the sailor in the “Rhyme of the Ancient Mariner”. It just hangs on you forever, no matter what injustice results. The Innocence Legal Team has 290 Attorney that can examine your case and determine if you meet one of the narrow exceptions to get relief from registration. A 290 Lawyer is a must in this highly complex area of the law.

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