When May a Judge Deny a Tier 2 SB 384 Petition?

We present the following summary of a recent California Court of Appeal ruling from the Second Appellate District Court in Los Angeles because its facts are similar to many cases described to us by people who call our office for free consultation.

We believe the trial court’s ruling, from Judge Hector Guzman in Torrance (who we know well), is one that other judges will read with interest and that prosecutors and criminal defense attorneys should understand well for folks considering asking a judge to end one’s continuing obligation to register as a sex offender under Penal Code § 290.

The ruling is a stark reminder that the judge has discretion to deny a request to end registration.

Mr. Harry Malbry wanted to stop registering as a sex offender.  He had this duty because, in 1991, he pleaded no contest to a charge of a lewd act on a child (Penal Code § 288(a)).  He allegedly penetrated an unrelated five year old girl who called him “Daddy” on a daily basis during the work week, while the girl's mother was away at her job.  He did this for three years until the girl eventually told her mother, after she turned eight.  

Mr. Malbry told the girl repeatedly that if she told anyone about his having sex with her, he would hurt her mom.

Mr. Malbry was convicted, imprisoned for a six-year term, released, and required to register annually as a sex offender. 

In 2022, Malbry was into his seventies.  He then petitioned to terminate his registration duty, arguing his crime-free record since 1991 (including six years in prison) showed he was no longer a danger to the community.  He had registered for more than 20 years for a crime that was originally classified as a Tier Two sex offense, meaning was eligible to request termination of his registration obligation after 20 years of registering.

The petition included four pieces of evidence.  First, there was a one-page letter from Mr. Malbry's sister-in-law of 25 years.  This relative expressed her and her family's support for Mr. Malbry, whom she described as “an outstanding citizen in a very upscale neighborhood ․ He is a church going man, [and] he has donated toys and gifts to children [in] hospitals for years with his wife.”  Second was a photocopy of Mr. Malbry's business card for a carpet cleaning company.  Third, was a one-page letter from a couple living across the street, who described Mr. Malbry as a “fantastic neighbor” and a “model neighbor” who, for 20 years, had taken out their garbage when they needed it and had demonstrated traits of a good neighbor and a good citizen.  Fourth was a one-page letter from Mr. Malbry's wife, who was not the girl's mother, reporting how Mr. Malbry had helped her pass out supplies to homeless people on two or three days during a year.

Malbry himself offered no declaration or statement.  

It is obvious that the court found such evidence, especially the lack of a declaration from Mr. Malbry, as woefully insufficient.

The petition was assigned to Judge Guzman, who denied Mr. Malbry's petition.  He found that, under Penal Code § 290.5(a)(3), “[c]ommunity safety would be significantly enhanced by requiring continued registration.”  Judge Guzman found that the persistence and extent of Mr. Malbry's conduct, his lack of insight, and his willingness to exploit a trusting child showed her remained a danger to others and continued registration was appropriate.

It seems to us that Judge Guzman found Mr. Malbry’s lack of insight the most significant factor.  Mr. Malbry expressed no regret or remorse for his conduct and attended no counseling for his behavior.

Mr. Malbry then appealed Judge Guzman’s ruling to the Second Appellate District, which agreed with Judge Guzman.

[7] the person'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.”

Here, the appellate court also found it significant that in 2006, the Legislature enacted Penal Code § 288.7 which made punishment twenty-five years to life for adults who engage in sexual intercourse with a child under age ten.  Such offenders are Tier 3 offenders who have a lifetime registration obligation (not Tier 2).  This is what Mr. Malbry did five times per week for three years and perhaps would have continued longer if the young girl had not reported him to her mother. 

The appellate court also agreed with Judge Guzman that it was significant that Mr. Malbry never sought counseling or therapy for himself to understand why he exploited a grade schooler for years.  The appellate court regarded this as showing Mr. Malbry did not understand he needed to change himself.  

We hope anyone contemplating a petition to terminate 290 registration will become familiar with Mr. Malbry’s failed petition and appreciate the legal standards that apply, particularly subject to judicial discretion.