by Douglas Ankney

The Court of Appeal of California, Second Appellate District, held that a defendant convicted in 1985 of lewd and lascivious acts, California Penal Code § 288(a), is entitled to removal from the sex offender registry notwithstanding the fact that if convicted under current law he would be required to register for life and ineligible for removal. (Note: All statutory references are to the California Penal Code.)

On May 31, 1985, Arturo Montoya Franco pleaded no contest to two counts of lewd and lascivious acts with a minor in relation to sexual acts he performed on his seven-year-old step-daughter, including sexual intercourse. He was sentenced to six months in jail, followed by five years of probation and sex offender registration for life.

On September 9, 2021, Franco petitioned to terminate the registration. He alleged that as a “Tier 2” offender, he was eligible for removal after 20 years; he had been a registrant for 37 years; he had not been arrested in the 37 years since his offenses; he had no criminal history prior to his offenses; he had completed a counseling program and progressed in psychotherapy; he admitted to his crimes and expressed remorse; he had been married for 34 years; he had served in the military in the 1970s; he had an excellent post-conviction work history; he was involved in church activities; and he was now 75 years old. The People opposed the petition and requested a hearing.

At a hearing on the motion, the trial court acknowledged that Franco had no criminal history either before or after the offenses and that he had not reoffended in 37 years. But the trial court found that the focus is on (1) the nature of the crimes and (2) the age of the victim. The court reasoned that if prosecuted today, Franco would likely be convicted under § 288.7 and face a prison term of 25 years to life and lifetime registration. The trial court concluded that, while “sending [defendant] back to prison for 25-to-life or more years in prison” was not warranted, “requiring him to continue registering” would “significantly enhance community safety.” The trial court denied the petition, and Franco timely appealed.

The Court observed “California law requires persons convicted of certain sex crimes or those whose offenses are sexually motivated to register with California’s sex offender registry.” People v. Mosley, 344 P.3d 788 (Cal. 2015). The “overriding purpose” of the sex offender registry is to mitigate the “continuing threat to society” that sex offenders pose, “thereby enhanc[ing] community safety by preventing future sexual victimization.” People v. Sorden, 113 P.3d 565 (Cal. 2005).

In 2017, the California Legislature amended the applicable registration requirements to create a three-tier categorization of offenders based upon the threat each offender posed to society. § 290(d). Tier I offenders pose the least risk and may petition for removal from the registry after 10 years. § 290(d)(1). Tier II offenders pose a medium risk and may petition for removal after 20 years. § 290(d)(2). Tier III offenders pose the greatest risk and, notwithstanding certain limited exceptions, must register for life. § 290(d)(3).

Tier I and II offenders may petition for removal from the registry after registering for their applicable minimum term of registration. § 290.5(a)(1). The petition may be summarily denied if the offender fails to “meet the statutory requirements” for removal. § 290.5(a)(2). If the petition is not summarily denied, the People may request a hearing to “present evidence” as to whether “community safety would be significantly enhanced by requiring continued registration.” § 290.5(a)(3).

“In making this determination, the trial court ‘shall consider’ seven factors: (1) ‘the nature and facts of the [underlying,] registerable offense’; (2) ‘the age and number of victims’; (3) ‘whether any victim was a stranger [to the defendant] at the time of the offense’; (4) ‘criminal and relevant noncriminal behavior before and after conviction for the [underlying] registerable offense’; (5) ‘the time period during which the [defendant] has not reoffended’; (6) ‘successful completion, if any, of a Sex Offender Management Board certified sex offender treatment program’; and (7) ‘the [defendant’s] current risk of sexual or violent reoffense….’” § 290.5(a)(3).

The Court framed the narrow legal question presented in this case as follows: “May a trial court deny a petition seeking removal from the sex offender registry on the ground that the offender’s underlying sex crime also constitutes a different, later-enacted sex crime for which lifetime registration is required (and hence removal is not authorized)?” The Court concluded that a trial court may not do so.

The Court observed that in People v. Thai, 90 Cal. App. 5th 427 (2023), the trial court stated that it had “considered each and every one of the factors” enumerated in § 290.5 but concluded that the “egregious” nature of the underlying sex crime (masturbation of a 12-year-old boy) “weighed so heavily” as to warrant denial of the petition for removal from the registry in spite of 24 years of law abiding behavior. On appeal, the Thai Court held that “insufficient evidence supported the trial court’s conclusion that community safety would be appreciably increased by requiring [the defendant in Thai] to continue to register” because the People had not “produced evidence [showing that the defendant] was currently likely to reoffend.”

The Court explained that the trial court “committed the sin condemned in Thai,” i.e., giving controlling weight to the “egregious” nature of the underlying offense rather than focusing on whether the defendant “was currently likely to reoffend.”

The People attempted to circumvent Thai by arguing: “(1) defendant, for the September 1983 incident, could have been charged—and likely convicted—of violating section 288.7, a statute that was not enacted until 2006 (Stats. 2006, ch. 337, § 9, p. 2590); (2) a defendant convicted of a sex crime under section 288.7 is a Tier 3 sex offender (§ 290, subd. (d)(3)(C)(xiv)); and (3) our Legislature, in designating certain offenses as automatically placing a sex offender into Tier 3, which mandates lifetime registration, has evinced its view that—for those offenses—the nature of the offense by itself establishes a perpetual likelihood of reoffending and thus may permissibly be viewed as controlling.”

The Court rejected that argument because the Legislature did not adopt that approach when enacting §§ 290 and 290.5 The Court explained that the framework adopted by the Legislature focuses on whether the defendant “was convicted” of specific crimes, not whether the defendant “could have been convicted” of other crimes, including those that did not exist at the time of the defendant committed his crime.

Because the Court rejected the People’s argument, Thai governs this case and requires reversal based on the fact the trial court gave the “egregious” nature of the crimes controlling weight, and the People failed to produce any evidence that Franco “was currently likely to reoffend.” Thai. Thus, the Court held that Franco was entitled to be removed from the sex offender registry. See § 290.5(a)(1).

Accordingly, the Court reversed the denial of Franco’s petition. See: People v. Franco, 99 Cal. App. 5th 184 (2024).  

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