One Must be a California Resident to Get SB 384 Relief

After Senate Bill (SB) No. 384 was passed into law, our office received several phone calls from registered sex offenders living outside California who were keenly interested in having their registration obligation terminated.  

The law seemed unclear to us whether California residency was a requirement, so we filed the petition for our first client, a resident of Georgia, and the judge assigned to the case granted the petition.  In our second case involving a person living outside California, a man living in Arizona, we filed the petition and it was denied based on his residency not being in California.  We then saw a judge in the Airport Courthouse grant such a petition for a person living in North Carolina, so the issue of whether California residency is required seemed unclear.

The Third Appellate District, in People v. Clifford James Smyth, seems to have settled this issue upon an appeal from the Glenn County Superior Court, ruling that one must be a California resident to get such relief.

Mr. Smyth was a Tier Two sex offender, meaning he had to register, with some exceptions, for twenty years under Penal Code §§ 290(b) and (c).  In August, 2022, he filed a petition pursuant to Penal Code § 290.5 in Glenn County.  The Glenn County District Attorney filed a response asserting Smyth had not fulfilled the statute’s filing and service requirements because he did not register in Glenn County and does not register in California at all.  Mr. Smyth resides in Oregon.

Judge Donald Cole Byrd, the judge assigned to the petition, denied the petition, finding that Mr. Smyth was not currently a sex offender in Glenn County.

Mr. Smyth then appealed this ruling to the California Court of Appeal, Third Appellate District (Sacramento).  The Third Appellate District noted that this ruling relied upon statutory interpretation, so its review was de novo.

The Third Appellate District first noted that the language in Penal Code § 290.5(a)(1) states “[A] person who is required to register pursuant to Section 290 and who is a tier one or tier two offender may file a petition in the superior court in the county in which the person is registered for termination from the sex offender registry.”  This section, the Third District found, “evinces the Legislature’s intent to provide relief only to those individuals who are registered in California.”

The Third Appellate District pointed out that such legislative intent, when clear and unambiguous ends the judicial inquiry.  However, the court “will not give statutory language a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended.” In re D.B. (2014) 58 Cal. 4th 941, 945-946. 

Mr. Smyth argued that since California is only one of four states ”without some form of tiering,” the public has no way of differentiating between higher and lower risk offenders.  He then cited to the legislative findings in passing SB 384 that law enforcement often spends 60 to 66% of their resources dedicated to sex offender supervision on monthly and annual registration paperwork because of the large numbers of sex offenders on our state’s registry.  

The Third Appellate District responded to this argument by pointing out that this concern was only for within California and since Mr. Smyth was in Oregon, it really did not help his appeal.

Lastly, Mr. Smyth echoed the equal protection argument that so many 290 registrants make about the registration requirements being an equal protection violation.

The Third Appellate District Court noted as a preliminary matter that Mr. Smyth forfeited this claim by not making it at the state court level.  However, even if he had made it, it would fail because the first step in any equal protection analysis it to evaluate if the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” Cooley v. Superior Court (2002) 29 Cal. 4th 228, 253.  

Mr. Smyth argued that he was similarly situated to California registrants because he, like an eligible in-state registrant, no longer poses a danger to the community and does not warrant police surveillance.  

The Third Appellate District Court found that Mr. Smyth was not similarly situated in Oregon to California sexual offender registrants because out-of-state registrants are not monitored by California law enforcement and do not overwhelm the public because their names do not appear in the California registry.