People v. Gerber

6-8-2011 California:

People v. Gerber
196 Cal.App.4th 368 (2011)

Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen. Code, § 311.11, subd. (a))1 (count one), annoying or molesting a child (§ 647.6, subd. (a)) (count two), furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)) (count three), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353) (counts four and five).

On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. In addition, he asserts that the trial court lacked authority to make its no-contact order.

We hold that the phrase "the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ..." in section 311.11 requires a real child to have actually engaged in or simulated the [196 Cal.App.4th 372] sexual conduct depicted.

We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error.

We also strike the no-contact order.

... ... ...

E. No-contact Order

At sentencing, the trial court ordered defendant to have no contact with the victim or her family. Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.

Simants v State

7-3-2014 Alaska:

Simants v State

Carrie D. Simants was thirty-three years old when she had sexual intercourse with R.H., a seventeen-year-old boy who was living in her home. At the time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his compliance with his delinquency case plan. A jury therefore found that Simants was in a "position of authority" over R.H. and convicted her of one count of second-degree sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5 years to serve) and 10 years' probation for this offense.

On appeal, Simants challenges her sentence on three grounds. She asserts that the superior court erred by rejecting the two statutory mitigating factors she proposed at sentencing. She argues, in the alternative, that the court should have referred her case to the statewide three-judge sentencing panel for consideration of a sentence below the applicable presumptive range. Lastly, she challenges a condition of probation that could potentially preclude her from living with her own children after her release.

For the reasons explained below, we conclude that the superior court applied the wrong legal analyses when it rejected the two statutory mitigating factors and imposed the challenged probation condition.

Accordingly, we vacate the probation condition and remand this case to the superior court for further proceedings consistent with this opinion. Because Simants may be resentenced, we do not reach the merits of her three-judge sentencing panel arguments at this time.

... ... ...

Conclusion

We VACATE the special condition of probation limiting Simants from residing in a home where a minor is present to the extent that the condition bars her from living with her own children. If the State wishes to renew its request for a probation condition that restricts Simants's contact with her children, the State must affirmatively show

(1) that there is good reason to believe Simants will pose a danger to her children when she is released from prison, and

(2) that the State's proposed condition of probation is narrowly tailored to avoid unnecessary interference with Simants's relationship with her children.

We retain jurisdiction.

Gonzalez v State

11-24-2014 Indiana:

Gonzalez v State

On June 2, 1997, Gonzalez pled guilty to Class D felony child solicitation1 based on his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three years, with eighteen months incarcerated and eighteen months on probation.

On September 15, 1999, Gonzalez was discharged from probation and began registering as a sex offender, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). See Ind.Code § 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).

Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the details of his crime. In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement.

On January 27, 2011, Gonzalez, by counsel, filed a "Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22." (App. at 34.) The trial court denied the petition on July 22.

... ... ...

The requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. See Ind.Code § 11-8-8-19(c) (assigning lifetime registration requirement to person over eighteen years old who committed offense on victim under twelve). Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his lifetime registration requirement.

Additionally, unlike both Flanders and Jensen, whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind.Code § 11-8-8-19(c), which does not classify him as an SVP or provide a mechanism by which he could petition the court for removal of that requirement.4

Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11-8-8-19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.

We therefore must reverse the denial of Gonzalez's petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.

Reversed and remanded.

Michigan v Juntikka

4-21-15 Michigan:

Michigan v Juntikka

At issue in this case is whether a trial court properly imposed a $100 probation enhancement fee upon defendant under MCL 771.3. Because we conclude that MCL 771.3(2)(d) does not independently authorize trial courts to impose any assessment, and because we conclude that the probation enhancement fee was not statutorily authorized as a cost specifically incurred in defendant’s case, we vacate the portion of the court’s order imposing the probation enhancement fee and remand for further proceedings.

On January 23, 2013, defendant pleaded guilty to one count of failing to register as a sex offender, MCL 28.729. The trial court sentenced defendant to a five-year probationary term and
12 months in the county jail. The court additionally ordered defendant to pay several financial
charges, including a $100 probation enhancement fee.

On August 6, 2013, defendant filed a motion for resentencing, contending, among other things, that the $100 probation enhancement fee was improper because it was an unauthorized assessment. The court denied defendant’s motion, explaining that the probation enhancement fee covered items including “gloves so that the probation agents may test bodily fluids more safely” and “cell phones so that [agents] can quickly respond to issues that may arise.” The trial court concluded that because defendant was on probation, the fee rendered him a potential benefit and so fell within the ambit of MCL 771.3(2)(d).

Don’t Have $35? How About an Arrest for Failure to Register as a Sex Offender?

April 2015 Florida:

by The Law Office of John Guidry II

Forgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees–so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there’s anything wrong with that). Not flipping burgers, rolling burritos–nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn’t within a 1000 feet of a school or playground. I’ve seen city’s set up playgrounds just to drive out sex offenders–so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens’ movements once they’ve completed their prison time and probation.

Del Pino v Dep't of Public Safety

4-1-15 Maryland:

Del Pino v Dep't of Public Safety

In this opinion, we set sail into waters left uncharted by the voyage that the Court of
Appeals undertook in the case of Doe v. Department of Public Safety & Correctional
Services , 430 Md. 535 (2013) (“Doe I”). In Doe I, the Court held that requiring Doe to register as a sex offender as a result of the 2009 and 2010 amendments to the Maryland sex 1 offender registration act (“MSORA”) violated the prohibition against
ex post facto laws contained in Article 17 of the Maryland Declaration of Rights. Id. at 537 (interpreting Md.2 Code (2001, 2008 Repl. Vol., 2010 Cum. Supp.), §§ 11-701 et seq. of the Criminal Procedure Article (“CP 2010”)).

There, MSORA did not exist in 1983-84 when Doe committed the sexual offense at issue, nor was Doe required to register when he was convicted in 2006. Doe I, 430 Md. at 537-38. Here, at the time of his conviction in 2001 for a sex crime committed in 2000, appellant, Thomas H. Quispe del Pino, was required to register as a sex offender for a period of ten years.

The 2010 amendment to MSORA, however, classified appellant as a “Tier II” offender and increased the period of registration from ten years to twenty-five years.

The issue thus presented to this Court by the instant case is whether, under Doe I , the retroactive application of MSORA to appellant by the 2010 amendment, which results in the increase of his registration period from ten years to twenty-five years, violates the prohibition against ex post facto laws contained in Article 17 of the Declaration of Rights.

We shall hold that it does.

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.

...

Benton Harbor man to remain on sex offender list

2-24-2015 Michigan:

A Benton Harbor man convicted of having sex with an underage girl has lost an appeal of a lower court's decision requiring him to remain on the state sex offender registry.

Evans Costner III was more than four years older than the victim in the 2009 case, and therefore not entitled to have his name removed from the registry, the state Court of Appeals said.

A provision in state law allows offenders in so-called "Romeo and Juliet" cases, where young people engage in sex by consent, to petition a court for removal from the registry.

For the petition to be granted, the victim must be at least 13 and under 16, and the offender not more than four years older than the victim.

Costner was 18 at the time of the offense, four years and 23 days older than the 14-year-old girl, according to an appeals court opinion released Feb. 19.

In affirming a Berrien County Trial Court decision denying Costner's petition, the appeals court also said that requiring him to register as a sex offender is not cruel and unusual punishment.

Johnson v Indiana

11-24-2014 Indiana:

Johnson -v- Indiana

Michael E. Johnson (“Johnson”) was convicted of Failure to Register as a Sex Offender, as a Class C felony. He now appeals, contending that the State failed to adduce sufficient evidence to support his conviction; the State concedes a failure of proof as to Johnson’s duty to register.

Facts and Procedural History
On November 17, 1994, when he was eighteen years old, Johnson was convicted of Rape, as a Class B felony, for an offense he committed while he was seventeen years old.

On January 6, 2012, while investigating other matters, police attempted to make contact with Johnson at several addresses in Indianapolis. Among these was an address he had provided on a registration form in 2011. Police officers visited this location, but Johnson did not reside at that address. The occupant of the home did not know Johnson and was unable to provide police with any information as to Johnson’s whereabouts.

Police eventually located Johnson at another location. Johnson was arrested.

On January 10, 2012, Johnson was charged with two counts of Failure to Register as a Sex Offender, as Class D felonies enhanced to Class C felonies as a result of prior convictions, and with one count of Failure of a Sex or Violent Offender to Possess Identification, as a Class A misdemeanor.

...

Conclusion:

Accordingly, as Johnson’s brief notes, his age at the time he committed Rape is dispositive. Based upon the evidence submitted at trial, Johnson was not under any duty to register as a sex offender, and we accordingly reverse the judgment of the trial court and remand with instructions to vacate Johnson’s conviction in this matter.

Reversed and remanded.

Troubling Interpretation of Sex Offender Registration Statute

11-7-2014 New York:

by Lorca Morello, New York Law Journal

In Eugene Ionesco's absurdist play "The Bald Soprano" a character talks about a husband and wife named Bobby and Bobby Watson whom no one could tell apart because they had the same name. In People v. Gillotti, the Court of Appeals has applied similar logic to hold that "victim" under the Sex Offender Registration Act (SORA) is identical to "victim" in tort cases where persons depicted in child pornography can seek damages from mere viewers.1 Gillotti accordingly holds that anyone convicted of possessing multiple images of child pornography has multiple "victims" and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children.

The majority sees no absurdity in this. Rather, it asserts that any other result would violate the "plain language" of SORA. But plain language interpretation does not mean that just because two things have the same name they cannot be told apart.

Gillotti also conflates two meanings of the word "presumptive." In everyday speech, presumptive means less than definitive, as in "Dr. Livingston, I presume." As a legal term, a presumption allocates the burden of proof, as in "the presumption of innocence." In SORA hearings, the Board of Examiners of Sex Offenders (BESO) offers what its guidelines call a "presumptively correct" recommendation about the defendant's risk level. The guidelines use the word "presumptively" in the everyday sense of "not definitive."

Gillotti, however, interprets "presumptively correct" as a legal presumption that shifts the burden of proof to the defendant. This is inconsistent with the statute and the court's own precedents. Under SORA it is the state's burden to prove by clear and convincing evidence that the defendant deserves the deprivation of liberty interests entailed in being classified as a high or moderate risk.2 However strong the state's evidence, the burden of proof never shifts.

The effect of Gillotti will be to inflate the number of persons permanently stigmatized as dangerous "sex offenders" who probably present no more risk to public safety than any other ex-offender.

Sex Offender Registry Spat Bends to Public Access

10-29-2014 Michigan:

People v Temelkoski

A sex offender who no longer has a conviction on his record after successfully completing probation must still abide by registry requirements, a Michigan appeals court ruled.

Boban Temelkoski was 19 in 1994 when he was charged with second-degree criminal sexual conduct related to his kissing and groping of a 12-year-old girl.

Temelkoski pleaded guilty and served three years of probation under the Holmes Youthful Trainee Act (HYTA), at which point the case against him was dismissed.

Though Temelkoski does not have a conviction on his record, Michigan law still requires him to register as a sex offender for life under the Sex Offender Registration Act (SORA).

He sought removal from the sex-offender registry in 2012 based on the purported "cruel or unusual" nature of punishing him of something not memorialized by a conviction.

Since SORA now contains a "consent exception" for youthful offenders in a so-called "Romeo and Juliet relationship," Temelkoski also characterized the sexual encounter between him and the 12-year-old as consensual.

Claims of bias in child porn cases arise for Hillsborough Judge Chet Tharpe

6-6-2014 Florida:

TAMPA — One day in September 2012, lawyer Michael Maddux walked out of a Hillsborough courtroom in shock. He couldn't believe what had just happened to his client, a middle-aged man with no criminal record who, prosecutors said, obsessively downloaded and categorized more child pornography than anyone else they had ever come across.

Peter Barnhill, 44, had more than 400,000 ghastly images on his hard drive. But there was no evidence he had ever touched a child, and he had passed a polygraph exam attesting to that. A psychologist who specializes in examining sex offenders pronounced him "low risk." Maddux thought his client might get, at most, five years in prison. Hillsborough Circuit Court Judge Chet A. Tharpe gave him 22.

"This child pornography phenomenon, if you will, is becoming an epidemic," Tharpe said in an emotional speech from the bench. There was a 50-50 chance that Barnhill would molest a child one day, he said, citing a study from 2011. "That is scary," he said. "We're not talking about a fantasy."

Months later, in a sharply worded decision that could affect whether Tharpe continues to hear child pornography cases, Florida's 2nd District Court of Appeal ruled that Barnhill would have to be resentenced, and by a different judge. The court faulted Tharpe for "abusing his discretion" by lumping Barnhill in with child molesters and rapists. The veteran jurist had implied that he would never consider giving a lighter sentence in a child pornography case, regardless of the facts.

"Even to the most casual observer, it could not be believed that Barnhill received a hearing in a dispassionate environment before a fair and impartial judge," the court wrote.

The decision was "en banc" or "entire bench," a rare unanimous ruling from all 13 appellate judges.

COURT: Sex offender doesn't have to register

9-22-2014 Indiana:

Paille -v- Indiana

MUNCIE – A Muncie man convicted of sex crimes in Florida does not have to register locally as a sex offender, the Indiana Court of Appeals has ruled.

In a 3-0 ruling, the appeals court also ordered local authorities to dismiss two criminal charges pending against 44-year-old Michael Troy Paille that stemmed from his failure to register with the Delaware County Sheriff's Office.

In this month's decision, Judge Cale Bradford acknowledged that when Paille most recently was released from a Florida prison, in 2011, he was "required to register in Florida as a sex offender for at least 25 years."

However, because Paille's Florida crimes and convictions predated the 1994 enactment of Indiana's Sex Offender Registry Act, he is not required to register here, Bradford wrote. He noted a 2009 ruling by the Indiana Supreme Court that "the application of INSORA to crimes committed before INSORA's 1994 enactment was unconstitutional."

Sex offender's 3-year prison term for failing to register not excessive, appeals court finds

7-3-2014 Louisiana:

A state appeals court has upheld the three-year prison sentence that a Jefferson Parish judge gave a Port Sulphur man for failing to complete his sex offender registration. Carlo Muth, 39, said the punishment is excessive, because he tried to register when he moved to Jefferson Parish but could not afford the $628.75 fee that the Sheriff's Office charged him.

Muth was given the sentence in September by Judge Lee Faulkner of the 24th Judicial District Court. A jury had convicted Muth for failing to register as a sex offender when he moved to Jefferson in 2012.

He was required to register because of his 2005 guilty plea in Plaquemines Parish's 25th Judicial District Court to to molestation of a juvenile. He admitted having sex with a 14-year-old girl, when he was 29.

When he moved to Jefferson, he notified the Sheriff's Office and registered as a sex offender. He was given 21 days to notify the community, a requirement of state law. But he told the Sheriff's Office he could not afford the community notification fee, court records show. Lt. Luis Munguia, in charge of the sex offender registry, gave him an extension through January 2013. Muth still did not register, leading Munguia to seek his arrest.

Muth moved back to Plaquemines in March 2013 and was trying to register as a sex offender there when he was arrested on the Munguia's warrant. Police say he admitted he had been paid at his job but that he still made no attempt to pay the Jefferson fee.

After Muth was convicted, Faulkner sentenced him to three years in prison with no benefit of probation, parole or suspended sentence. His trial attorney's argument that the sentence was excessive was unheeded.

Muth appealed to the 5th Circuit Court of Appeal in Gretna. A three-judge panel sided with Faulkner in finding that the trial judge did not abuse his discretion in handing down the punishment.

The punishment range for failing to register is two years to 10 years in prison, the appellate court noted. Another Jefferson Parish judge had previously handed down a five-year sentence in an unrelated case, the appellate court found.

"In the instant case, although (Muth) has only one prior felony conviction and his instant conviction appears to stem from financial difficulty, we find that these mitigating factors are reflected in his sentence that is less than midrange and illegally lenient," Judge Jude Gravois wrote in the June 24 opinion, for Susan Chehardy and Robert Murphy.

"Accordingly, we concluded that the trial court did not abuse its discretion in sentencing (Muth) to three years imprisonment at hard labor without benefits. ..Source.. by

Order requiring man to participate in sex offender program not unconstitutional

6-19-2014 Indiana:

The Indiana Court of Appeals has found (Patrick v Butts) that the order requiring a man to participate in the Sex Offender Management and Monitoring program does not violate Indiana’s prohibition of ex post facto laws.

George Patrick, convicted of two counts of Class B felony rape and two counts of Class C felony criminal confinement in 1991, was released on parole in 2007. But it was later revoked, and that’s when he filed his petition for writ of state habeas corpus relief, asserting his parole was revoked due to his “involuntary termination [sic] SOMM participation as a result of his special sex offender stipulations as a condition of his parole.”

“The Parole Board is allowed to impose conditions that are ‘reasonably related to the parolee’s successful reintegration into the community,’ Ind. Code § 11-13-3-4-(b), and that subsection was in place when Patrick was convicted. Our Supreme Court has found that the SOMM program ‘is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control,’” Judge Melissa May wrote in George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board, 33A04-1311-MI-577.

“As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.” ..Source.. by Jennifer Nelson

INDEPENDENT NEWSPAPERS INC -v- BRODIE

2-27-2009 Maryland:

INDEPENDENT NEWSPAPERS INC -v- BRODIE

In this case, we are called upon to decide whether a circuit court judge, in a defamation action, appropriately denied a motion to quash/motion for protective order regarding a subpoena requiring, Independent Newspapers, Inc., a company that commissioned an Internet forum (for which it required participants to register), to identify five Internet forum participants known only by their pseudonyms or usernames. Independent Newspapers appealed the denial of the motion, and we granted certiorari, Independent Newspapers v. Brodie, 405 Md. 505, 954 A.2d 467 (2008), prior to any proceedings in the Court of Special Appeals to address the following questions:

• 1. May a court breach the constitutional right to speak anonymously and order the identification of Internet speakers who are alleged to have violated the plaintiff's rights without a factual and legal showing that the plaintiff has a supportable claim on the merits?
• 2. Did plaintiff Brodie make the required showing in this case?

We shall conclude that the circuit court judge abused his discretion when ordering the identification of the five anonymous Internet forum participants, because the three participants sued, concededly, did not make the alleged defamatory statements, while the other two anonymous participants, who allegedly made the actionable remarks, were not sued by Brodie.

For guidance to the trial courts, we, nevertheless, will discuss the standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation.

State v William Dinkins Sr

The essence of this case is, a person cannot be released from prison unless they have an residence (address), but finding one when in-prison is impossible. The state's position is absurd, the inmate needs to be released to find a residence..

3-12-2012 Wisconsin:

State v. William Dinkins, Sr. (Supreme court)

1 The State seeks review of a published decision of the court of appeals that reversed a judgment and order of the circuit court finding William Dinkins, Sr. guilty of knowingly failing to comply with the sex offender registration statute.[1] That statute required Dinkins to provide the Department of Corrections (DOC) with "the address at which [he] . . . will be residing" at least ten days prior to his release from prison.[2] The circuit court found that Dinkins attempted to comply with the registration requirements but was unable to find housing for himself prior to his release. Nevertheless, relying on the testimony adduced at the preliminary hearing, the circuit court adjudged Dinkins guilty of a Class H felony.

2 The State asserts that the court of appeals erred in reversing the circuit court's judgment. It contends that homelessness is not a defense to failing to comply with the registration requirements and that Dinkins could have complied with the statute by listing a park bench or other on-the-street location as the place he would be residing.

3 We agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements. However, we disagree that Dinkins was capable of complying with the statute by listing a park bench or other on-the-street location.

... ... ...

People v Douglas M

10-24-2013 California:

People v Douglas M

Douglas M. appeals from an order modifying his probation, pursuant to amended Penal Code section 1203.067,1 which sets forth various new probation conditions for registered sex offenders.2 Because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, we conclude that the provisions of revised section 1203.067 may not be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment. As appellant‟s offenses occurred well before that date, the trial court improperly modified the terms and conditions of his probation to include the new provisions.

... ... ...

In sum, there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date. (See Brown, supra, 54 Cal.4th at pp. 319-320; Alford, supra, 42 Cal.4th at p. 754.) Moreover, to construe the statute as applying to those probationers would raise serious constitutional questions under the federal and state ex post facto clauses. Therefore, in keeping with the mandate of section 3, the amended statute must be viewed as “unambiguously prospective,” applying to probationers who committed their crimes on or after the statute‟s effective date of September 9, 2010. (See Brown, at p. 320.) Because appellant‟s offense occurred before September 9, 2010, the provisions of revised section 1203.067 were improperly applied to him and must be stricken.6

DISPOSITION

The judgment is modified to strike the new terms and conditions of probation imposed on appellant pursuant to amended section 1203.067. As so modified, the judgment is affirmed.

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Additional Counseling Not Required For Some Registrants

3-19-2014:

The California Supreme Court has denied review of a case thereby relieving some registered citizens from the duty to participate in a state-mandated sex offender management program. Specifically, as a result of the Supreme Court’s denial, registered citizens currently on probation whose sex offense occurred prior to September 10, 2010, are not required to complete a sex offender management program mandated by Penal Code Section 1203.067(b).

The Supreme Court’s decision lets stand the decision of the Court of Appeal in the case People v. Douglas M. which was decided on October 24, 2013. The case was appealed shortly thereafter.

“This is an important decision for registrants whose offenses occurred prior to September 10, 2010,” stated CA RSOL President Janice Bellucci. “No longer will they be required to participate in an expensive and intrusive program.”

The Supreme Court’s decision was issued on January 21, 2014. ..Source.. by CA-RSOL

Seales v State

2-28-2014 Indiana:

Seales v State

Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm.

Seales pled guilty in October 1998 to Class B felony child molesting1 for an offense committed in 1996, and the court imposed a twenty-year sentence, with ten years suspended and six years on probation. When Seales committed the offense, the Indiana Sex Offender Registration Act required an offender to register for ten years from the date he was placed on probation. Ind. Code § 5-2-12-5 (1996).

In 2011, Seales brought a Verified Motion to Determine Sex Offender Registration Requirements and Remove Defendant from Registry. In that motion, Seales noted that, at the time of his conviction, the statute required him to register as a sex offender for ten years, but in 2006 the law was changed to require lifetime registration. That change, he asserted, was an impermissible ex post facto law.

He asked the trial court to direct the State to remove him from the sex offender registry and to issue an order that he was not required to register. The trial court determined Seales must continue to register as a sexually violent predator for the rest of his life pursuant to Ind. Code § 11-8-8-19, denied his motion to be removed from the registry, and subsequently denied his motion to correct error.

... ... ...

Conclusion:
As Seales, like Jensen, has available to him avenues of relief related to his future dangerousness “in relation to the alternative purpose assigned, protection of the public,” id. at 321, we find the seventh factor weighs in favor of treating the lifetime registration requirement as non-punitive, and we therefore cannot say it was error for the trial court to deny Seales’ petition to be removed from the sex offender registry.

Affirmed.

People v Kayer

UPDATE 2-16-2014: State legislature is now trying to amend law (SB 2912) because of this case (See article below)

5-6-2013 Illinois:

People v Kayer

In July 2011, the State charged defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6 (West 2010)). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment.

Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/6 (West 2010)).

We agree and vacate defendant's conviction.

... ... ...

17 III. CONCLUSION

¶ 18 We conclude section 6 of the Registration Act did not require defendant to report his loss of employment as a change in his place of employment. Defendant's guilty plea and conviction were based upon actions not constituting a criminal offense.

We vacate defendant's conviction as void.

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Lawmakers consider tweaking sex offender laws

2-5-2014:

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

The twin pieces of legislation were introduced after lawmakers said they encountered holes in the current statutes, the Springfield bureau of Lee Enterprises newspapers reported.

"Attending the county fair is geared more toward families," said state Rep. Mike Smiddy, a Democrat from Port Byron who sponsored one of the bills. "A lot of children are there. They have a lot of children's events, like tractor pulls and stuff, attached to these things. I just don't believe that a registered sex offender should be allowed to go to those areas where children are present."

Smiddy said he introduced the measure at the request of officials in Whiteside County. Sex offenders would still be allowed to attend the state fair if the bill passes. They're already banned from working at county fairs.

The second bill would require convicted sex offenders who lose their jobs to update their registration with state police. The current law only requires sex offenders to notify authorities if they change jobs.

Sen. Jason Barickman, a Bloomington Republican who co-sponsored the bill (SB 2912), said he thinks those who drafted the original law meant to require registered sex offenders to also report the loss of a job.

He said charges against a sex offender were dismissed in McLean County because of ambiguity over when people had to report a change in employment. ..Source.. by