In nearly every phone conversation with have with someone seeking relief from continued registration as a sex offender, the question arises “how long will this whole process take?”
Our response begins with explaining that one cannot file the petition until after one’s birthdate after July 1, 2021. So, if someone birthday lands on June 25, that person cannot file their petition under June 25, 2022. This is often not welcome news, as the caller usually wants to file the request for termination as soon as possible, preferably within the week.
We then explain that the petition is filed in the county where petitioner registers, not necessarily where the conviction took place. This can be something of a shock to some, as it seems the judge who oversaw the underlying case that led to the conviction also ought to be the one who has control over that individual’s registration.
If one’s obligation to register as a sex offender arose from a juvenile matter, one must file in the delinquency court for the county where one registers.
It is very important that one serve the petition to law enforcement and the district attorney in the county where one registers. If the conviction is from a different county from where one registers, one must serve the district attorney and law enforcement in the county of the conviction as well.
Once the petition is received, law enforcement has sixty days to report back to the district attorney and judge if petitioner meets the minimum requirements for termination. The report will consider if petitioner has any convictions from outside California, which may require an extension of the sixty days to investigate.
There is no requirement to give petitioner a copy of the law enforcement report, which we believe is bad because there is no ability to challenge the contents of the report is incorrect.
There is also no procedure or remedy if law enforcement fails to submit the required report within the sixty-day deadline.
Once the district attorney receives the law enforcement report, the prosecutor has a further sixty days to decide how to proceed and submit an opposition to the judge. The prosecutor can request that the judge summarily deny the petition, that the judge hold a hearing or that the judge grant the petition. The most common reason we believe that the prosecutor will oppose the petition, we would anticipate, is because the petition has not completed the minimum reporting period due to tolling or other events that extended the minimum reporting period, i.e., a new conviction or arrest.
The prosecutor may also oppose the petition on grounds that “community safety would be significantly enhanced by the person’s continued registration.” We would expect such an argument, to be credible, would need support from the victim, the probation officer (if applicable), the parole officer (if applicable) or any other community members who the prosecutor can elicit such support. Bare, unsupported arguments that rest on speculation about petitioner’s danger to community safety may be looked upon with skepticism by the judge, but we would expect the prosecution to recite the facts of the underlying case to engage the judge’s concern.
It is not clear from Penal Code § 290.5(a) if the prosecution must serve petitioner or petitioner’s counsel with the opposition, but we would certainly argue that if a hearing is set on the petition that due process requires service of such a document so that petitioner (and his or her counsel) can respond in a meaningful manner to help the judge make an informed decision on the petition.
Such a response might include a declaration under oath from the victim or the victim’s family not opposing the end of registration, a declaration under oath from the probation or parole officer about ending registration, or even letters of support from members of the community who can attest to our client’s maturity, patience and helpfulness or reliability to show he or she is good citizen.
These are items we would otherwise want to present with the application, but in this context, we would only present these in response to an opposition by the prosecution.
The judge, upon reviewing all such paperwork, will then grant the petition, deny the petition or set a hearing on the petition. There is no deadline, or specific amount of time, within which the judge must grant, deny or set a hearing on the petition.
For more information about SB 384, please click on the following articles: