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SB 384: Who is a Tier 2 Registrant under PC 290(d)(2) & (1)?
In our experience discussing who may be a Tier 2 registrant under Senate Bill 384, the discussion is usually framed by a belief that the conviction is not so serious as to be a Tier 3 and not deserving of having to register for 20 years, either.
In a Nutshell: For purposes of SB 384, a Tier 2 registrant under Penal Code § 290 is someone convicted of less than the most serious sex offenses, but more serious than the least serious sex offenses. A Tier 2 registrant must register for 20 years, or in certain exceptions, 10 years.
The approach we recommend is that one first evaluate if the conviction is Tier 3 by rigorously examining all the criteria than can land someone in Tier 3, including the list of the 34 offenses with each of the subcategories within the offense. At the end of this article is a link to an article that explains the Tier 3 criteria.
Assuming the conviction is not one of the 34 listed and the person is not otherwise Tier 3, there are six offenses that land one in Tier 2. Those are:
- Incest (Penal Code § 285);
- Sodomy under Penal Code §§ 286(g) (sodomy of a person with a mental or developmental or physical disability that prevents the person from giving legal consent) or 286(h) (sodomy of a person with a mental or developmental or physical disability that prevents the person from giving legal consent by another person also confined, like the victim, to a state hospital);
- Oral copulation under Penal Code §§ 287(g) (oral copulation of a person with a mental or developmental or physical disability that prevents the person from giving legal consent) or 287(h) (oral copulation of a person with a mental or developmental or physical disability that prevents the person from giving legal consent that prevents the person from giving legal consent disability by another person also confined, like the victim, to a state hospital);
- Oral copulation under Penal Code §§ 288a(g) or (h), which is the predecessor statute to §§ 287(g) and (h), described above;
- Sexual penetration under Penal Code § 289(b) (sexual penetration upon a child under age 14 when the act is accomplished against the victim’s will by force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another); or
- A second or subsequent conviction under Penal Code § 647.6 (annoying or molesting a child under age 18) when that second or subsequence offense is brought and tried separately.
If the conviction falls under any of the above six criteria, the person is Tier 2 and must register for 20 years before requesting termination of the registration obligation. However, there is an exception to the 20-year waiting period, allowing just 10 years of registration, if all of the following six criteria apply (Penal Code §§ 290.5(b)(1) – (2)), which are:
The registrable offense involved only one victim who was 14 to 17 years old; The registrable offense is not a violent felony, as defined by Penal Code § 667.5(c) (exception being a violation of Penal Code § 288a (oral copulation)); The registrable offense is not specified in Penal Code § 236.1 (human trafficking); Defendant has not been convicted of a new offense for which registration as a sex offender is required; and Defendant has not been convicted of a violent felony after being convicted of a registrable offense.
