Friday, October 10, 2003
Transient Sex Offender Registration Requirement Struck Down
By KENNETH OFGANG, Staff Writer/Appellate Courts
A portion of California’s sex offender registration law, dealing with offenders who lack a fixed abode, was held unconstitutionally vague yesterday by the First District Court of Appeal.
Div. Three, overturning the conviction of a Northern California parolee sentenced to 25 years to life in prison under the Three Strikes Law, struck down a portion of Penal Code Sec. 290. The provisions require transient sex offenders to register in the jurisdiction where they are “located” within five working days of changing their “location,” to give police written notice of their new “location,” and to register at every “location” they regularly occupy in a single jurisdiction.
The language does not give fair notice of what the Legislature expects those subject to the statute to do, Justice Joann Parrilli wrote for the court. “Section 290 fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement,” the justice wrote.
Related Provision Upheld
The panel did, however, uphold a related provision requiring that transient sex offenders register in each jurisdiction in which they are regularly “located” and update their registration every 60 days. That requirement, Parrilli said, may be reasonably construed as compelling an offender to register in any jurisdiction in which he is present on five consecutive working days.
The defendant who challenged the provisions, Bruce Edward North, was paroled in 2000 after serving time at Folsom State Prison and San Quentin. Evidence at his trial showed that he had been notified on multiple occasions of the requirement that he register at a sex offender.
Lacking a place to live at the time of his release, he was given a voucher to pay for a motel in Redwood City, and registered the address with the police there. North testified he was told he would have to register every day if he became homeless, and a Redwood City officer confirmed that this was the department’s policy.
A week after registering with Redwood City, North registered in nearby San Mateo. He said he was homeless and gave the department the location of a tree he intended to sleep under, although he testified that he did not sleep under the tree but went back to Redwood City because his parole officer told him he would be in violation of his parole otherwise.
He then reregistered in Redwood City, giving the motel address. According to the motel’s records, he left about two weeks later.
Learning that North had left the motel, his parole officer reported him as a parolee-at-large, and arrested him about two weeks later when he came into the parole office for a medical appointment. He admitted that he had not registered with the Redwood City Police Department in over a month.
North was recommitted for the parole violation and charged with violating Sec. 290. He testified that he had moved “back and forth” between Redwood City and San Mateo before he was arrested by the parole officer, and that he was in a “Catch-22 situation” because as soon as he showed up to register, he would either be charged with not having registered the previous day or days or with violating parole.
Parilli, writing for the Court of Appeal, acknowledged that the tracking of transient sex offenders is an important governmental interest. But the standards employed by the Legislature must take account of the “practical difficulties” presented, she said.
The jurist rejected the prosecution contention that the term “location” can reasonably be interpreted as referring to the general area in which the offender intends to spend the night. That interpretation “fails to grapple with the difficult element of time,” the justice said.
Given the statutory language, Parilli wrote, the court can do no better than to require an offender to register in each place that he spends five consecutive working days, since the law is specific in requiring that every offender, transient or not, register within five days of moving into a jurisdiction.
That rule is flawed, the justice acknowledged, in that it allows an offender to evade the new-registration requirement by moving every four working days, although such offenders would still have to update their previous information every 60 days under the provision the court upheld.
A more satisfactory solution, she said, would have to come from the Legislature.
The case is People v. North, A097247.
Copyright 2003, Metropolitan News Company