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Did you know that California has mandatory sex offender registration laws? If you or a loved one has been charged or convicted of a sexual offense, you may be required to register as a sex offender, possibly for the rest of your life.
In this video, Mr. Arano and I are going to discuss several important topics related to Section 290 Sex Offender Registration. We will cover:
- Who is required to register as a sex offender.
- What registration actually means.
- The significant consequences we see with many of our clients who have been court-ordered to register.
- How the registration requirement can sometimes be used to abuse or harass an individual.
- Finally, Mr. Arano will share the important process recently made available to those previously convicted of sexual offenses, to help them remove their name from the California sex offender registry or, at the very least, educate them about the steps they can take to clear this stigma and remove this onerous obligation from their criminal record.
Dustin, I know the topic of sex offender registration and removal is not a popular one in our profession, but there is a profound need for lawyers who know how to help people remove their names from the registry. Is that true in your experience?
Definitely. I recall we got into this because we received a referral from one of the treatment providers we’ve worked with in the past, who recommended that this gentleman approach us to find out what could be done so he could experience some relief from the anxiety that came with having to register for an offense that happened a significant number of years ago—decades, if I remember correctly.
For that particular client, I believe it was 20 or 30 years ago. He was experiencing significant anxiety, shame, and humiliation every time he applied for a job or housing. This was something that followed him everywhere, cropping up whenever anyone did a background check. He was very aware that his name, address, and offense were branded on the internet for anyone to access and find. It was a great source of shame for him.
He came to our office wondering what could be done, and fortunately, the law was changing at that time. Until that point, we would have had to turn him away and explain that, unfortunately, there are life consequences for having to register as a sex offender unless you can get a certificate of rehabilitation—a very onerous process—or a pardon. But with the law changing, we were able to offer him hope.
In January 2021, the California legislature enacted Penal Code Section 290.005, which allows us to petition for the termination of one’s duty to register after a satisfactory period of time has passed.
With respect to this section, Dustin, one of the most remarkable changes, which you’ve touched on briefly, is that prior to this law, sex offender registration was not only mandatory but for life. What that meant was that even if someone committed a very minor offense—such as a misdemeanor offense of annoying a minor, or being convicted under questionable circumstances of something like indecent exposure—those individuals would be required to register.
We see a lot of these cases where people might be intoxicated and perhaps urinating in a public place. Someone, possibly hyper-sensitive or hypervigilant, misinterprets the situation and believes the person is masturbating. Maybe the person didn’t have good legal representation and gets charged and convicted of indecent exposure. As a result, they’d be forced to register.
For most of my career, those individuals would face lifelong registration, and it was catastrophic for them, especially given the relatively minor nature of their offense. They didn’t kill anyone or hurt anyone—they may have behaved inappropriately—but for the rest of their lives, their information would be public. They would face discrimination in employment and housing, they could be harassed by neighbors, and their property could be vandalized. The stigma was immense, and many people have driven themselves to significant mental distress because of it. Until 2021, there was no legal mechanism to change this.
Just hearing the label “sex offender” creates a stigma on its own. People’s minds immediately jump to the worst-case scenarios: that you raped someone or molested a minor. What’s really significant about the new law is that it creates different tiers for offenders. This is important because we’re no longer lumping everyone who must register into one group. For example, a person who had an indecent exposure incident in a park is not now grouped with a serial child molester who had multiple young victims and engaged in truly inappropriate and harmful conduct.
This change means that someone who perhaps had sex with an underage person and had a judge misuse or overstep their discretionary powers to impose registration is no longer treated the same way as more serious offenders. I think that’s a really significant development.
Definitely, there are still offenses under this new law that carry lifetime registration requirements. However, many of the charges enumerated under Section 290 have been reclassified as either Tier 1 or Tier 2 offenses. Tier 3 still carries a lifetime requirement, but if you’re a Tier 1 offender, you’re eligible to petition for removal from the sex offender registry after 10 years of registration. For Tier 2 offenders, it’s 20 years. That’s the general rule, though there are some exceptions. The best thing you can do to inform yourself about those exceptions is to hire an attorney who can sit down with you, explain the nuances of the statute, and guide you through the process.
It’s a bit of a cumbersome process. You’ll need to serve the law enforcement agency from the district attorney’s office in the county of conviction, as well as your local district attorney’s office. The process could take roughly 120 days just to get a decision on your petition. So, the best thing you can do if you’re interested in this is to contact an attorney as soon as possible to start the process before you reach out to anyone else.
Before contacting an attorney, however, the first step is to understand whether your offense falls into Tier 1, Tier 2, or Tier 3. This answer isn’t legally complicated. What you need to do is look up the charge you were convicted of, then refer to the statute itself (Section 290). You can read the statute or, if you’re working with an attorney, they can explain it to you quickly. Essentially, you need to check the statute to see whether your conviction falls under Tier 1, Tier 2, or Tier 3.
Most misdemeanor offenses we see fall under Tier 1, including offenses like indecent exposure or annoying or molesting a minor. It’s important to note that “molesting” doesn’t mean the same thing as lewd and lascivious conduct with a minor under Section 288 (commonly known as child molestation). It refers to engaging in conduct motivated by an abnormal sexual interest in a child that is disturbing or annoying to an average reasonable person.
Tier 1 offenses are the least serious of the group of sexual crimes, which is why they carry the shortest registration period: 10 years. After registering for 10 years without any violations, you can file a petition, and within a few months, you could be removed from the registry—a process that wasn’t available before.
Tier 2 offenses are typically felonies, but less serious than offenses like rape or child molestation (Section 288).
Tier 3 offenses, on the other hand, are generally what we think of as serious sexual offenses involving either adults or children—such as forcible rape or child molestation. However, there are a few surprises. These are the cases that can catch people off guard. For example, child pornography is considered a Tier 3 offense. The definition of child pornography is extremely broad, and a person could be charged and convicted for merely possessing any material that depicts a minor engaging in actual or simulated sexual conduct.
Most people, when they think about child pornography, imagine adults engaged in deeply disturbing sexual acts with children. They don’t typically think about a youthful-looking 16- or 17-year-old female, or a Romeo and Juliet-type scenario where two young people exchange nude pictures of each other. Unfortunately, in some jurisdictions, law enforcement and district attorney offices pursue child pornography convictions very aggressively. As a result, someone who made a mistake but may not be as egregious an offender as someone convicted of a Tier 2 offense could still end up facing lifetime registration.
If a child pornography offense is a felony, it requires a lifetime registration. Additionally, as we’ve discussed, it doesn’t necessarily involve very young children—it could involve someone who is a post-pubescent teenager, or someone with whom an individual may have been in a relationship and exchanged photographs.
You’ve mentioned child pornography, which is important because this charge can be classified as either a misdemeanor or a felony, depending on the prosecutor or judge’s discretion.
Exactly. The difference between a misdemeanor and felony is crucial for purposes of Section 290 registration. If it’s convicted as a misdemeanor, it’s a Tier 1 offense, requiring 10 years of registration, and you can petition for removal after that period. However, if it’s a felony, it’s a Tier 3 offense, requiring lifetime registration, and it can’t be fixed after the fact.
One thing we’re seeing as this new law is being interpreted by courts is that expunging a conviction or seeking a reduction from a felony to a misdemeanor does not change the Tier designation. It does not affect the duty to register. That’s why it’s so important to be very careful in resolving these cases—what you do now can have lifelong consequences regarding registration.
To be fair, much of this didn’t matter as much 10 or 15 years ago because the law was very different. Any child pornography offense, whether misdemeanor or felony, triggered a lifelong registration requirement. There was no difference in how it was treated for registration purposes. But now, with the tier designation, attorneys and clients must be very careful when making decisions about how to resolve these cases. The decision you make doesn’t just affect you in the short term—it can have significant long-term consequences.
Now, I want to discuss something related to tier designation. We mentioned earlier in the video that contacting an attorney is an essential first step to understand your tier. However, are there other steps someone could take before hiring a lawyer, to at least begin their research? How can they determine whether they’re eligible for relief, or if they’re out of luck due to the offense they pled to many years ago?
Definitely. One step I would recommend is to visit the agency where you register and request a tier designation letter from the California Department of Justice. This letter will clearly state their understanding of your tier designation. If there’s an error, it can be corrected with legal representation. But this is a great starting point to figure out if you’re eligible to petition for removal from the registry.
That’s a really important point, Dustin. If someone is a Tier 2 registrant but would prefer to have their registration terminated in 11 years instead of 20, we won’t be able to help them unless the 20-year period has passed. On the other hand, if they’re eligible to petition sooner than they realized, they can get the ball rolling and file the petition.
I think it’s critical to contact an attorney if you want to determine whether you’re eligible to petition for removal from the registry because the statute itself is complex. I had to reread it multiple times, and I’ve been practicing for nearly 20 years. There are exceptions to the 20-year rule for some Tier 2 offenses. While the general rule is a 20-year wait before you can petition, there are circumstances that might allow you to petition after 10 years.
Next, I want to touch on the related topic of record clearance, which often confuses clients. Expunging or dismissing a conviction under Section 1203.4 usually removes penalties or disabilities from a criminal conviction, but it doesn’t apply to registerable sex offenses. Some offenses can’t be expunged at all, while others can be expunged but still carry 290 consequences. Getting an expungement doesn’t end your duty to register as a sex offender. This is one of the exceptions in the expungement statute, so it’s crucial to work with an attorney who understands both sex offender registration and the expungement process.
Many people are familiar with the expungement statute, but they may think it’s easy to have it litigated. It can be, especially if the person has completed probation and hasn’t violated any other laws. However, in cases where someone has to register as a sex offender, it’s essential to educate clients that expungement does not remove the requirement to register. If someone mistakenly thinks they’ve cleared their record, they could be arrested for failing to register, facing either a felony or a misdemeanor charge.
To summarize, if you or a loved one has been convicted of an offense requiring lifetime sex offender registration, there may be good news. As of January 1st, 2021, California established three different sex offender tiers. If you’re designated as Tier 1 or Tier 2, you may petition for removal after 10 or 20 years, depending on the tier. To determine your tier, you can contact an experienced attorney or request a tier designation from the agency where you register.
Once you confirm whether you’re Tier 1 or Tier 2, you can begin the petition process. After serving the petition to the required agency, there’s a 60-day waiting period. If the district attorney doesn’t object in the following 60 days, you can be removed from the registry. If they do object, a hearing will be held where both sides can present evidence regarding your rehabilitation and ongoing risk to the community. If you’re unsatisfied with the outcome, you have the right to appeal.
It’s essential to work with an experienced criminal defense attorney, as the consequences of failure to register are significant. If you’ve truly been rehabilitated, you and your family deserve to be removed from the registry permanently to avoid the stigma and discrimination that comes from a conviction.
In summary, while the public holds a generally negative view of sex offenders, many sexual offenses don’t correspond to the offender’s dangerousness or pathology. The definition of many crimes that require registration is broad, and many individuals who are successfully rehabilitated can still face lifelong registration. If you or someone you care about has been convicted of a registerable sex offense, make sure to research whether you qualify for Tier 1 or Tier 2 registration, and contact an attorney to begin the process of removal.