California Penal Code Section 290 requires people convicted of certain sex offenses to register with local law enforcement where they reside.
The purpose of this article is to provide a solid understanding of the process now available to win removal from the sex offender registry in California.
Eligibility for Removal from the Sex Offender Registry
In 2017, California Senate Bill 384 was signed into law. It hugely revised and improved the registry process by updating and making dramatic improvements in the way people on the registry can be terminated, ending their obligation to register in California.
Under the revised Penal Code Section 290 and 290.5, there are three tiers or levels assigned to people on the registry.
Tier 1 designation is the lowest level of classification under California Penal Code Section 290. People who are classified in Tier 1 are recognized as presenting the lowest risk.
Some examples Tier 1 charges include:
Lewd acts in public
Misdemeanor sexual battery
Misdemeanor possession of child pornography
It is also important to note that being classified in a tier that permits termination of registration does not guarantee that petitioning will result in an automatic removal from the sex offender registry. Tier 1 does permit eligibility for petitioning for removal from the registry after 10 years. To successfully petition for removal, evidence of rehabilitation and other supportive material supporting termination of registration can be prepared and offered to the decision makers, which include the district attorney, law enforcement and the judge. Under the new law, the test that the law requires is that the evidence, taken as a whole, results in a finding that your remaining on the registry will not enhance public safety. Importantly, it is the burden of the district attorney to prove, more likely than not, this critical showing. This is a complicated proof issue and one that we can discuss to improve your insights and ability to work together to prepare the best support for gaining removal from the registry.
Tier 2 designation is the second level of classification under the new law. Those who are classified in Tier 2 have offenses perceived as presenting higher risks to public safety. The challenge is that more persuasive evidence may be required to win termination.
Individuals who are convicted of certain serious sex crimes, such as annoying or molesting a child under 14, are placed in Tier 2.
Example of Tier 2 offenses include:
Lewd Acts with a Child Under 14 (Penal Code section 288(a), which makes up about half of all people on the registry.
Being classified under Tier 2 allows eligibility to petition for removal from the registry after 20 years. The decision makers, primarily district attorneys and judges, are more concerned because of the greater seriousness of the Tier 2 offenses and look for solid evidence to assess whether termination from the registry is required under the new law. To have the best chance to succeed, you must provide substantial evidence of rehabilitation, focused on current circumstances, and conduct since the offense.
It is critical to appreciate that for those eligible for relief, the offense that created the duty to register is not the central focus. Instead, the new law orders the termination of registration evaluation to be based on current risks and requires removal unless retention on the registry will “significantly enhance” community safety. Insight into the law and the ways the decision makers apply it is vital to a successful outcome. No substitute exists for experience and insight in evaluating sex offense cases, which is vital to increasing your chance of success in gathering the necessary evidence and building the strongest case for removal.
Under current law, Tier 3 offenses are not generally eligible to be removed from the registry. Legislative efforts are under way to obtain further reforms in the law. Positive receptive opportunities are available and being pursued to resolve some of the great unfairness in the new law. Ask if those efforts, if successful, might benefit you.
Petitioning for removal from the registry as a Tier 3 offender is extremely limited. Ask if your Tier 3 conviction is eligible for removal.
The Legal Process for Removal from the Sex Offender Registry
To be considered for removal from the sex offender registry, a petition must be filed with the court and properly served on the right parties. Detailed information about your offense must be accurately identified and included. The petitioner must meet certain requirements.
Critically important communications are required with one or more district attorney offices, providing information to one or more law enforcement agencies, and sometimes conducting contested hearings and court proceedings. These steps are all part of the necessary actions essential to winning removal. The prosecution and the court both play a role in the process and may offer objections, create legal obstacles, or inject arguments resisting your termination efforts.
A successful petition for removal results in the petitioner being terminated from the registry and no longer being required to register as a sex offender in California.
Megan’s Law Webpage
A petition, once granted and properly processed by DOJ results in your permanent removal from the Megan’s Law online webpage.
Preparing for the Removal Process
Preparing for the submission of a petition for removal from the sex offender registry in California is a critical step for everyone seeking to end their obligation to register. The following steps can help anyone applying to build a strong case with the best chance of success:
Gathering relevant documentation: To be successful in the removal process, you ideally work with me to provide substantial evidence of good conduct, community reputation and, if available, proof of successful counseling, treatment or rehabilitation. This can include proof that was received as treatment ended, or new documentation of prior treatment can be sought. It can also include letters of support from friends, family, and community members. It is important for all of these items to be thoughtfully focused on the key legal issues, to refine and focus the support materials to include all aspects of concern for the decision makers and any relevant documentation. The goal is to be sure that what is available is the most persuasive they can be.
Planning Your Strategy: Although a petition can be filed based on your experience and instincts, you improve your chance of success at the first application by relying on someone with experience in the legal system, specifically in this area of registration termination. A 2nd petition to terminate, when the first one has been denied, can be delayed by the court for as long as 5 years before a further petition can be filed. As a result, it is critically important to get the best and most persuasive and legally appropriate presentation done the first time. It is your decision whether to seek a guide by being represented or to undertake the effort on your own. My experience, focused on this field for more than 45 years, can guide you through the complex process and help build a strong case, with the best possible chances of having your petition approved the first time.
Potential Pitfalls and Challenges in the Removal Process
The removal process from the sex offender registry in California can be complex and challenging, and individuals seeking removal must be prepared to navigate through potential pitfalls and challenges. The following are some of the most common difficulties faced by individuals seeking removal:
Lack of evidence or documentation: To be successful in petitioning for removal from the registry, an applicant must provide substantial evidence. This can include documentation of therapy, counseling, and treatment, as well as letters of support from friends, family, and community members. It can include a focused risk-assessment by an expert psychologist. If this evidence is lacking or insufficient, it may negatively impact the chances of a successful petition.
Incomplete or inaccurate information on the petition: The petition for removal must be complete and accurate, with all relevant case and law enforcement information and evidence included. It must be served as the law mandates. Incomplete or inaccurate information, or improper service of the papers can result in the petition being denied or delayed, making it even more difficult to successfully petition for removal in the future.
Arguments from the prosecution: The prosecution may argue against your removal from the registry, citing concerns about public safety. These concerns should be anticipated as part of the planning and strategy in preparing the petition. The prosecution may also argue that the individual has not demonstrated sufficient rehabilitation or change in behavior to warrant removal from the registry. This can be successfully defeated but it requires advanced planning and a plan before proceeding.
When seeking removal from the sex offender registry in California you must be prepared to navigate through a complex and challenging process. Your likelihood of success is improved by working with a legal professional experienced in these types of cases. Success is a byproduct of anticipating the weak spots and identifying a solution before the problem arises.
Understanding the potential consequences of a failed petition
If the petition for removal is denied, individuals must wait one to five years before reapplying. It is important to understand these potential consequences of a failed petition and to prepare for filing in a way to maximize a likely success.
Impact of Removal from PC 290 Registration on California's Megan's Law Website
Removal from the sex offender registry in California also removes you from the Megan’s Law online listing. DOJ has been very slow to implement court’s removal orders, resulting in some people entitle to be removed remaining on the list for months beyond a court success. This slowness can be solved with the right contact with DOJ. I know, I have been able to expedite removals.
The process of being removed from the sex offender registry in California is complex and requires a well-thought out and thorough strategy, a well-prepared petition and strong advocacy. People who have been convicted of a sex crime and are required to register must understand the eligibility requirements for terminating the duty to register, the legal process, and the potential challenges they may face in the termination process.
Preparing to petition for removal from the sex offender registry in California requires careful attention to detail, preparation, and planning. It is best done as a collaborative approach with you and your lawyer working together to identify strengths and opportunities to succeed. By working with a legal professional, you can increase your chances of success the first time and ensure that your petition and supporting materials are well-prepared and complete. With the right preparation and support, you can move toward regaining control of your life and work towards a future free of the California registry burden.