People v Rebulloza

3-2-15 California:

People v Rebulloza

Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent exposure for exposing himself on a street corner in San José. The trial court granted a three-year term of probation to include one year in county jail as a condition of probation.

Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067. Under subdivisions (b)(3) and (b)(4) of that statute, the court ordered defendant to “waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.”

Defendant challenges the constitutionality of these two waivers.1

First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy).

Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist.

We hold that the waiver of the psychotherapist-patient privilege as construed in this fashion is not overbroad in violation of defendant’s constitutional right to privacy.

...

Sex offender can continue to post photos, judge says

1-28-2014 Washington DC:

A D.C. Superior Court judge ruled Tuesday that a convicted sex offender can distribute and post photos of court employees online to protest the city’s sex offender registry.

Dennis Sobin, a former pornographer who served more than a decade in prison for a sexual performance using a minor, posted the photos of employees from D.C.’s Court Services and Offender Supervision Agency (CSOSA) on idiotsregistry.info saying that sex-offender registries are unfair. A court employee filed for a civil protection order, accused him of stalking and asked the court to have Sobin to remove her photo.

But Judge Todd E. Edelman said that Sobin’s actions were protected by the First Amendment.

“Mr. Sobin’s conduct could be criticized,” said Edelman. “I think it’s unlikely to be effective. I think that criticizing lower-level court employees is puzzling. But that’s not my place to say.”

The unusual case garnered the attention of the ACLU, which filed a brief on Sobin’s behalf. Tuesday’s hearing also drew interest from other sex offenders and anti-registry activists.

“I’m very happy the judge understood and abided by the U.S. Constitution that gives citizens the right to protest, even in a personal sort of way,” Sobin said.

Sobin, 70, thought the decision could inspire similar protests elsewhere.

“The judge’s opinion will be used as ammunition around the country,” he said.

Stephanie Gray, the CSOSA employee who sought the protection order, and her attorneys declined comment.

Vicki L. Henry, president of Indiana’s Women Against Registry, welcomed the decision, saying people are not aware how much sex offender registries damage families.

“There’s no empirical evidence supporting these registries,” said Henry, whose son is a sex offender, outside the courtroom. “We need to promote prevention.”

Derek W. Logue, a sex offender from Ohio who was there to support Sobin, said that registries prevent criminals from moving forward. ..Source.. by Justin Moyer

Pennsylvania Supreme Court throws out parts of Megan's Law

This problem may be short lived, but correcting the mess caused by this -Legislative Error-, will be a disaster. Some folks may have to be released from prison or probation after having certain convictions overturned. All Lawmakers need to read their State Constitutions. Now if folks remember, Pennsylvania recently became SORNA Compliant according to the SMART Office. Welcome to the world of Chaos.

UPDATE: Just so folks know, this decision did not say "Megan's Law" is invalid, it said, the way CERTAIN provisions of "Megan's Law" was enacted in Pennsylvania ONLY was incorrect. Their state constitution says "enact laws ___this way__" and they failed to follow that way; a procedural legislative error, nothing more. However, correcting anything that was done pursuant to the resulting law (i.e., FTR charges, and other things) will be a disaster undoing (correcting) them.

12-17-2013 Pennsylvania:

The Pennsylvania Supreme Court threw out portions of the state's sex-offender registration law on Monday, telling lawmakers they violated the constitution's requirement that bills that become law must be confined to a single subject.

The justices ruled that a set of changes made to Megan's Law in 2004 was not constitutional, noting that the legislation also included such measures as a two-year statute of limitations on asbestos actions, the jurisdictional parameters of park police, and revisions to real estate law.

Pennsylvania's Constitution
Article III
Form of BillsSection 3.
No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

The court then put its decision on hold for three months to allow the Legislature to find a remedy.

"We will stay our decision, as we have done under similar circumstances, in order to provide a reasonable amount of time for the General Assembly to consider appropriate remedial remedies, and to allow for a smooth transition period," wrote Justice Debra Todd for the five-justice majority.

As revised in 2004, Megan's law created a searchable online database of offenders, set new punishments for offenders who did not register, and added luring and institutional sexual assault to the list of offenses that require 10-year registration.

It also set notification rules for out-of-state offenders who move to Pennsylvania, altered duties of the Sexual Offenders Assessment Board, and established community notification about sexually violent offenders.

Todd said the single-subject rule, which dates to 1864 and has recently been a factor in several high-profile cases, gives people confidence they can weigh in before a bill is passed, and helps lawmakers know what they are voting on ahead of time.

"When an act of the Legislature violates the single-subject rule, all of its provisions are equally repugnant to the constitution, and, thus, equally void," Todd said.

Chief Justice Ronald Castille filed a lone dissent, saying it was a close question but that he would have upheld the law.

"Any law passing through the enactment process is the result of salutary legislative compromise and the single-subject rule is not intended to completely discourage such compromise," Castille wrote.

Steve Miskin, a spokesman for the House Republican caucus, noted that revisions to Megan's Law enacted two years ago that brought Pennsylvania into compliance with the federal Adam Walsh Child Protection and Safety Act were drafted with an eye toward the case the court just decided.

Sex offender registration rules don't apply on tribal lands.

9-24-2012 Arizona:


Tribal members living on tribal land cannot be prosecuted by the state for failing to register as sex offenders, the Arizona Court of Appeals ruled Monday.

In a unanimous decision, the judges said state registration requirements cannot supersede what is required by federal law. And absent some very specific conditions, the state has no legal authority.

Judge Philip Espinosa, writing for the court, also said it is irrelevant that the defendant was found off the reservation.

Attorney General Tom Horne said he had not had a chance to review the ruling.

Court records show Raymond John was convicted in the late 1980s in federal court of two counts of sexual assault on the reservation.

In 2010 he was arrested by Coconino County sheriff’s deputies outside the reservation and charged with failure to register as a sex offender as required by Arizona law. He pleaded guilty and was placed on probation.

John immediately asked the verdict be set aside, arguing the state had no authority. He said he was a member of the Navajo Nation living on tribal land and had not worked, resided or attended school outside reservation boundaries.

The trial judge refused, leading to the appeal.

Espinosa said under federal law, a sex offender must register. It also requires tribes to implement their own registration system or delegate that authority to other jurisdictions.

Federal law does say a tribe loses its authority if it does not come up with a suitable program. But Espinosa said the power is delegated to someone else only if the U.S. attorney general first determines the tribe has not complied and is likely incapable of doing so in a reasonable time.

That, he said, did not occur here. And that means Arizona cannot impose registration requirements on tribal members living on tribal lands.

The appellate judges also rejected arguments by prosecutors that the state acquired jurisdiction over John “the moment he stepped off the reservation.’’ They said John’s conviction is based entirely on his conduct within Navajo Nation territory, where he lives.

Beyond the issues related specifically to the Navajo Nation, Espinosa said even if tribal members living on the reservation were required by federal law to register with the state, failing to do so would violate only federal law. That still leaves the state powerless to prosecute John in state court under state laws. ..Source.. by Howard Fischer

People v Carmony

6-29-2005 California:

People v Carmony
26 Cal.Rptr.3d 365 (2005)
127 Cal.App.4th 1066

This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.

Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law (former Pen.Code, § 290, subd. (a)(1)(A))1, he failed to "update" his registration with the same information within five working days of his birthday as also required by law. (Former Pen.Code, § 290, subd. (a)(1)(C).) Defendant's parole agent was aware defendant's registration information had not changed and in fact arrested defendant at the address where he was registered.

Defendant pled guilty to the charge of failing to register within five days of his birthday and admitted he had suffered three prior serious or violent felony convictions (Pen.Code, §§ 667.5, subd. (c) and 1192.7, subd. (c))2 and had served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him under the "Three Strikes" law to a prison term of 25-years-to-life (§§ 667, subds. (b)-(i), 1170.12) plus a one-year consecutive term for the prior prison term. (§ 667.5, subd. (b).)

In an earlier opinion we held the trial court abused its discretion in refusing to strike two of defendant's three prior convictions. The Supreme Court reversed the decision and remanded the case for our consideration of the constitutional issues not reached in our prior decision.

On appeal, defendant claims the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and/or unusual punishment, double jeopardy and ex post facto laws, and his federal right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296, 301-302, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412 (Blakely.)

It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.

The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.

The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to "update" the existing registration information. (Former § 290, subd. (a)(1)(C).)

Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant re-register within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone (Subtle Odd Law Fact).

Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing.3

US v Davis

6-19-2012 5th Circuit:

US v Davis

Robert A. Davis, III, pleaded guilty, pursuant to a conditional guilty plea, to failure to register as a convicted sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), reserving his right to appeal the challenges to SORNA made in his motion to dismiss the indictment. The district court sentenced Davis to 37 months in prison to be followed by a life term of supervised release.

On appeal, Davis argues that,

• (1) he was never advised of the registration requirements of SORNA, as required by 42 U.S.C. § 16917, in violation of the Due Process Clause;
• (2) the retroactive application of SORNA violates the Ex Post Facto Clause;
• (3) SORNA violates the Tenth Amendment by requiring state officials to administer federal law;
• (4) Congress violated the non-delegation doctrine by giving the Attorney General the power to decide whether SORNA applied retroactively;
• (5) SORNA's registration requirement violates the Commerce Clause by making failure to register a federal crime;
• (6) regulations issued by the Attorney General were given without notice and comment in violation of the Administrative Procedures Act (APA); and
• (7) SORNA does not apply to him because Mississippi has not yet adopted it.

Davis's complaints as to the notice and APA deficiencies, as well as his reliance on the holding in Reynolds v. United States, 132 S.Ct. 975 (2012), are unavailing as he traveled in interstate commerce after the final regulations were issued, which were published with proper notice and comment rulemaking. See 73 Fed. Reg. 38031-01.

His remaining claims are foreclosed by our opinion in United States v. Johnson, 632 F.3d 912 (5th Cir.), cert. denied, 132 S.Ct. 135 (2011). Davis asks us to reconsider the rulings in Johnson, and alternatively, he presents these issues to preserve them for further appellate review. This panel may not reconsider the court's precedent absent an overriding Supreme Court decision, a change in statutory law, or en banc consideration. See United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).

Accordingly, the judgment of the district court is AFFIRMED.

US v Madera

5-23-2008 Florida:

US v Madera
528 F.3d 852 (2008)

Wilfredo G. Madera ("Madera") appeals from the district court's denial of his motion to dismiss the indictment against him for failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"). On appeal, Madera argues that the Walsh Act is unconstitutional because it violates the following provisions of the United States Constitution: 1) the Non-Delegation Doctrine, Art. I, § 1; 2) the ex post facto clause, Art. I, § 9, cl. 3; 3) both the procedural and substantive due process clauses of the Fifth Amendment; and 4) the Commerce Clause, Art. I, § 8, cl. 3. The district court denied Madera's motion to dismiss, holding as a matter of law that the Walsh Act was both retroactive and constitutional. We reverse.

Factual Background

Madera was convicted in New York in November 2005 of sexual abuse in the second degree, a misdemeanor under New York Penal Code § 130.60. He was sentenced to six years of probation for this conviction, but was not incarcerated. Madera signed a sexual offender registration form in New York, dated May 1, 2006, which stated, "If you move to another state you must register as a sex offender within 10 days of establishing residence."

Madera subsequently moved to Florida, and was issued a driver's license on June 1, 2006 with an address in West Palm Beach, Florida. He was arrested on October 23, 2006 for failure to register as a sex offender in violation of 18 U.S.C. § 2250, and was thereafter indicted by a grand jury for "knowingly and unlawfully fail[ing] to register and update a registration as required by [the Walsh Act]."

After the district court denied Madera's motion to dismiss, Madera entered a conditional plea of guilty to the failure to register charge, permitting him to appeal that motion. The district court then sentenced Madera to time served, four years of probation, and a $500 fine. As of March 8, 2007, Madera has been registered with the State of Florida Sexual Offender Registration database. This appeal followed.

... ... ...

Given our finding that the Attorney General had sole discretion to determine whether or not SORNA was to be retroactively applied to sex offenders convicted before its enactment date, it only stands to reason that SORNA's scope was undefined prior to that determination.7 Because Madera's indictment concerns his failure to register during the gap period between SORNA's enactment and the Attorney General's retroactivity determination, he cannot be prosecuted for violating SORNA during that time. Thus, his indictment is due to be dismissed, and the judgment of the district court is reversed.8

Having decided the case on this basis, we need not reach the important constitutional questions raised in Madera's appeal. See Slack v. McDaniel,529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (recognizing "[c]ourts will not pass upon a constitutional question although properly presented in the record, if there is also present some other ground upon which the case may be disposed of") (citing Ashwander v. TVA,297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).

The judgment of the district court is REVERSED.

State v Hanson

2-21-2012 Minnesota:

State v Hanson -AND-
Gunderson v Hvass

Note: Normally this case would not appear in this Court Decisions blog because the appellate court lacked sufficient evidence to render a decision and remanded the case back to the lower court. However, this case is included because of a "Subtle Odd Law Fact" about registration in Minnesota. If a person is charged with a sex crime in Minnesota, the requirement to register is based on the "Charged Offense" not the offense they are convicted of. see below:

The court said: I. The record is inadequate to determine whether appellant is required to register as a predatory offender.

Appellant argues that he is not required to register as a predatory offender because he was not convicted in California of an offense enumerated in Minn. Stat. § 243.166, subd. 1b(a). The state contends that registration is required because appellant's California conviction arises out of the same set of circumstances as the rape alleged in the California complaint. Resolution of this issue turns on the language of the registration statute.

A person with a Minnesota conviction must register if:

(1) the person was charged with or petitioned for a felony violation of or attempt to violate, or aiding, abetting, or conspiracy to commit, any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:
[list of laws prohibiting certain offenses] [or]

(2) the person was charged with or petitioned for a violation of, or attempt to violate, or aiding, abetting, or conspiring to commit [list of laws prohibiting certain offenses], and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances . . . .

A few years back I had read a news item "Man Loses Fight to Avoid Listing on Sex Offenders' Registry" and had not fully understood it then. (Appellate court case: Gunderson v Hvass) Today's case explains how that can happen.

And as crazy as this sounds, Minnesota is a civil commitment state, and looking down the road I guess someone not convicted of a sex offense could possibly be civilly committed. Weird.

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