Court Should Only Consider Conviction Offense During Sex Offender Termination Hearing

In People v. Franco (2024) 99 Cal.App.5th 184, the superior court denied erroneously a motion to terminate sex offender registration despite 37 years of good conduct. There, the petitioner had been convicted of two convictions for lewd and lascivious conduct under Penal Code section 288, subdivision (a), that placed him in Tier 2 for registration purposes. After these convictions, the legislature created a new offense, Penal Code section 288.7, sexual intercourse with a person under 10 years old, for which the petitioner likely would have been convicted if that offense had existed at the time he was charged. When he applied for termination from sex offender registration, the District Attorney argued that he should not be granted relief because Penal Code section 288.7 - the offense he likely would have been convicted under later on - was a Tier 3 offense which required lifetime registration with no chance for termination. The superior court accepted this argument and denied the motion to terminate.

The court of appeal disagreed. Based on the actual conviction, petitioner was a Tier 2 offender, and any hypotheticals about what he would or wouldn’t have been convicted of under new laws like section 288.7 was irrelevant. Moreover, the trial court’s focus on the offense, rather than petitioner’s rehabilitation, was error. Petitioner showed substantial evidence of rehabilitation and had never reoffended. The prosecution did not produce any evidence that he was “currently” a threat to children. Therefore, the court of appeal ordered that the petitioner be relieved of the duty to register.