SB 384 California – New Law re Sex Offender Registration

Senate Bill 384 (SB 384) changed the sex offender registration process in California. The legislation replaced mandatory lifetime registration for all sex offenses with 3 tiers, based on the offense. Juveniles are treated differently from adult offenders under SB 384.

The law went into effect in 2021. People who leave California or who have out-of-state convictions can face complications.

Some of the most common questions our California criminal defense attorneys answer include:

• 1. How did SB 384 change sex offender registration in California?
• 2. How do I petition for removal?
• 3. Does it treat juveniles the same as adults?
• 4. When did the law go into effect?
• 5. How does the new law handle offenders who leave California, or whose offense was in another state?

1. How did SB 384 change sex offender registration in California?

SB 384 created the process by which registrants can petition to have themselves removed from the sex offender list and the “Megan’s Law website”.

Most importantly, SB 384 replaced lifetime registration for all offenses with 3 tiers that are largely based on the severity of the underlying offense:¹

• Tier One, which carries a minimum of 10 years on the registry, is for low-level sex offenses like:
  • misdemeanor sexual battery (Penal Code 243.4 PC)
  • arranging to meet a minor for lewd purposes (Penal Code 288.4 PC)
  • misdemeanor indecent exposure (Penal Code 314 PC)
  • indecent exposure (Penal Code 314 PC)
  • misdemeanor oral copulation (Penal Code 288a PC)
  • enticing a child into house of prostitution (Penal Code 266 PC)
  • inducing sex by fraud (Penal Code 266c PC)
  • misdemeanor possession of child pornography (Penal Code 311.11 PC)
  • first offense of annoying or molesting a child (Penal Code 647.6 PC)
• Tier Two, which requires a minimum of 20 years on the registry, is for mid-level sex offenses like:
  • rape of an adult 18 or older incapable of giving consent because of a mental disorder or disability (Penal Code 261 PC)
  • incest (Penal Code 285 PC)
  • lewd acts with a minor under 14 (Penal Code 288 PC)
  • sodomy with a minor under 14 (Penal Code 286 PC)
  • penetration with a foreign object when the victim is incapable of giving consent due to a mental disability (Penal Code 289 PC)
  • contacting a minor to commit a felony (Penal Code 288.3 PC)
  • second or subsequent offense of annoying or molesting a child (Penal Code 647.6 PC)
• Tier Three, which requires lifetime registration, is for severe sex crimes like:
  • most other cases of rape (Penal Code 261 PC)
  • spousal rape by use of force (Penal Code 262 PC)
  • child human trafficking (Penal Code 266 PC)
  • oral copulation by force (Penal Code 287)
  • sex trafficking of children (Penal Code 236.1 PC)
  • sex acts against a child under the age of 10 (Penal Code 288.7 PC)
  • felony child pornography (Penal Code 311.11 PC)
  • murder committed in the attempted commission of rape (Penal Code 187 PC)
  • kidnapping during commission of rape (Penal Code 207 PC and 209 PC)
  • pimping with a minor (Penal Code 266h PC)
  • pandering with a minor (Penal Code 266i PC)
  • transporting minor under 16 for lewd purposes (Penal Code 266j PC)
  • taking a minor away for prostitution (Penal Code 267 PC)
  • assault with intent to commit a felony (Penal Code 220 PC)
  • lewd acts with minor under 14 by force (Penal Code 288(b)(1) PC)
  • lewd acts with a minor causing bodily harm (Penal Code 288(i) PC)
  • sending harmful material to seduce a minor (Penal Code 288.2 PC)
  • continuous sexual assault of a child (Penal Code 288.5 PC)
  • sexual assault on a child under 10 (Penal Code 288.7 PC)

These timeframes begin when the registrant is released from incarceration or commitment. It gets tolled for any time the registrant is back in confinement.²

Tier criteria

The amendments to the Sex Offender Registration Act in SB 384 also set out the criteria for tier designation. While the specific sexual offense is an important factor, courts are to consider:

• the nature of the offense,
• the age and number of the victims,
• whether any victim was personally unknown to the defendant at the time of the offense, or was known for less than 24 hours at the time of the offense,
• the defendant’s criminal or relevant non-criminal behavior, both before and after the offense,
• whether the defendant has a prior conviction or arrest for a sexually motivated offense,
• the defendant’s current risk of a sexual offense or a violent offense (risk of recidivism), and
• the defendant’s risk level under the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) for static, dynamic, and violent risk assessments.³

Unlisted crimes

Judges can also order defendants who have been convicted on charges not listed under the Act to register as a sex offender if the defendant committed the offense:

• out of sexual compulsion, or
• for the purposes of sexual gratification.⁴

2. How do I petition for removal?

SB 384 also created the process by which Tier One and Tier Two registrants can file a petition for termination of sex offender registration requirements once they finished at least the minimum mandatory registration period.

If successful, this petition can lead to the offender being removed from the registry. Their personal information will also be removed from publicly available databases.

It is important to note, though, that the registration durations for all of the tiers are minimum time periods. Tier One registrants may end up re-registering every year for life if their petitions for removal get denied.

Note: California’s Clean Slate Laws (SB 731 and AB 1076) have no effect on sex registration and removal rules. They simply provide automatic clearing (“relief”) for non-serious, non-violent, and non-sex-related criminal records.

Filing the petition

Registrants submit their petitions to the

• applicable superior court or juvenile court,
• the registering law enforcement agency, and
• the county district attorney’s office (“prosecuting agency”).

The police have 60 days to report its recommendations to the D.A., who then has 60 more days to ask for a hearing to contest the petition on the grounds that discontinuing registration would hurt public safety.

The petition can be filed on or after the registrant’s first birthday following the expiration of their minimum registration period. The petition has to include proof of current registration.⁵

If the judge rejects the petition for removal, the judge will let the registrant know when they can reapply for removal from the registry. It can be no earlier than one year and no later than five years after the rejection.

Early removal

Tier Two offenders – who have to register for 20 years – can petition for removal after just 10 years if their offense involved:

• no more than one victim was aged 14 to 17,
• the offender was younger than 21 at the time of the crime,
• the offense was not a serious or violent felony, and
• the offender picked up no subsequent convictions.

Note that Tier Three offenders – who have to register for life – may be able to get early removal if the sole reason for their tier level is a heightened Static-99R risk assessment.

3. Are juveniles treated the same as adults?

No. Juveniles in California do not have to register as a sex offender for as long as adults. A juvenile’s registration duration is:

• 5 years, if put in Tier One, and
• 10 years, if put in Tier Two.⁶

To terminate their registration requirements, anyone who was a juvenile at the time of the offense has to petition the juvenile court in the county in which they are registered.⁷

4. When did the law take effect?

While SB 384 was signed into law in October, 2017, it only became effective January 1, 2021.⁸

This means currently registered sex offenders began to petition for their removal from the California sex offender registry following their first birthday after July 1, 2021.

5. How does the law treat out-of-state offenders or offenses?

Generally, for registrable offenses that happened in other states, the Sex Offender Registration Act and SB 384 look to equivalent California crimes for registration requirements.

This means that some people who no longer have to register as a sex offender in their state may have to resume registering if they move to California. This can also happen to registrants who leave California for another state.

When there is no equivalent crime…

Where there is no equivalent registrable offense in California, the out-of-state conviction will usually lead to Tier Two obligations.⁹ However, it will be Tier Three if any of the following are true:

• the person’s static risk assessment in SARATSO is well above average at the time of release,
• the person has ever been civilly committed to a mental health facility as a sexually violent predator, or
• the person was subsequently convicted in a separate proceeding for a substantially similar offense as the one that led to registration requirements, or for an offense that is substantially similar to the California crimes of:
  • aggravated sexual assault of a child (Penal Code 269 PC),
  • sexual acts with a child under 10 (Penal Code 288.7 PC), or
  • a violent felony (Penal Code 667.5 PC).¹⁰

What happens if I fail to register under the new law?

The failure to register as a sex offender is a crime in California. It is a felony if the underlying sex offense was a felony. It is a misdemeanor if the underlying offense was a misdemeanor.¹¹

Sex offenders have to register with local law enforcement every year. They also have to re-register every time they change addresses.

Penalties

When failure to register is a misdemeanor, a conviction carries:

• up to 1 year in county jail,
• up to $1,000 in fines, and
• summary probation.

When the offense is a felony, a conviction carries:

• 16 months, 2 years, or 3 years in state prison,
• up to $10,000 in fines, and
• formal probation.

Failing to register as a sex offender also lengthens the minimum registration duration. The time period increases by:

• 1 year, for every misdemeanor conviction of failure to register as a sex offender, and by
• 3 years for every felony conviction.¹²

It is not a defense that a registrant had a good faith belief that SB 384 ended their registration obligations. The only thing that terminates their obligation to register is a court order granting a petition for the termination of registration requirements.

---