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SB 384 Motion Denied on Tier 2 Offender Then Reversed
The following summary of a reported decision from the California Court of Appeal, Second Appellate District, presents a rather common set of facts, but an unusual opposition argument by the People, which we recommend the reader understand.
In the early 1980’s, Arturo Montoya Franco lived with his stepdaughter, J. In September, 1983, when J. was seven years old, Mr. Franco pulled her underwear down to her knees and inserted his penis, as J. described, “ in [her] hole.” J. reported that “some white stuff came out from [her] cookie and his thing.” In February 1985, Mr. Montoya rubbed J.’s vagina with his fingers through her underwear. J. then reported these incidents and Mr. Montoya was arrested.
In the spring of 1985, the Los Angeles County District Attorney’s Office charged Mr. Franco with two counts of committing a lewd and lascivious act with a minor (Penal Code § 288(a)).
On May 1, 1985, Mr. Franco pled no contest to both counts and the judge sentenced him to six months in county jail, followed by five years of formal probation. Mr. Franco was also ordered to register as a sex offender for the rest of his life.
In 2017, our Legislature amended the sex offender registration statutes pursuant to Senate Bill (SB) 384 to create a three-tiered system, with registrants in each tier presumptively obligated to register for different periods of time (10 years, 20 years or lifetime) depending upon the degree of risk they pose to the community.
Mr. Franco’s conviction, at the time, made him a “Tier 2” offender and obligated him to register for a minimum of 20 years.
In 2021, Mr. Franco filed a petition under SB 384 to terminate his sex offender registration obligation. He explained in his petition that he had no arrests in 37 years since his conviction and described progress he made in psychotherapy sessions, completion of a counseling program about sex offenses. He had also been married for 34 years. He also described his work history and his involvement in church activities.
The Los Angeles County District Attorney’s Office opposed the petition, arguing that one of the two offenses Mr. Franco was convicted of would now be prosecuted as a violation of Penal Code § 288.7 as having sexual intercourse with a child under 10 years of age. Persons convicted of such offenses are “Tier 3” offenders and required to register for life and are ineligible for SB 384 relief.
The trial court judge, David Brougham, in West Covina, denied the petition, explaining the “two biggest factors” favoring Mr. Franco were no criminal behavior before or after the offense, and that he had not reoffended in 37 years. However, balancing this with the nature of the crime and the age of the victim and noted that now, such conduct would require lifetime registration. He felt that due to the nature of the offense, it was “egregious community threatening behavior,” so the petition was denied.
Mr. Franco then appealed to the California Court of Appeal for the Second Appellate District in Los Angeles.
(1) “the nature and facts of the [underlying,] registerable offense;”
(2) “the age and number of victims;”
(3) “whether any victim was a stranger [to the defendant] at the time of the offense;”
(4) “criminal and relevant noncriminal behavior before and after conviction for the [underlying,] registerable offense;”
(5) “the time period during which the [defendant] has not reoffended;”
(6) “successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program;” and
(7) “the [defendant's] current risk of sexual or violent reoffense, including the person's risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.” Penal § 290.5, subd. (a)(3).
Permissible evidence includes “declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.” (Ibid.)
The trial court's task is to assess whether the People have carried their burden of “produc[ing] evidence establishing that requiring continued registration appreciably increase[s] society's safety.” People v. Thai (2023) 90 Cal.App.5th 427, at 432, 307 Cal.Rptr.3d 178.
Here, the appellate court found that Judge Brougham only gave weight to the “egregious” nature of Mr. Franco’s offense. Instead, a judge must consider each and every factor, and make a finding if defendant is “currently” likely to reoffend, which the court did not do in Mr. Franco’s case.
Lastly, the appellate court held that the trial court could not consider how Mr. Franco would be charged now for the same conduct. So the DA’s argument about Mr. Franco really being a Tier 3 offender was not allowed.
