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Termination of Sex Offender Registration PC 290.5

Effective July 1, 2021, Senate Bill (SB) 384 established procedures for a person to seek termination from the sex offender registry if the person meets certain criteria, including completion of the mandated minimum registration period (Penal Code § 290.5(a) – (c)).
The prosecution may request a hearing and present evidence to establish “community safety would be significantly enhanced by requiring continued registration.” Penal Code § 290.5(a)(2), (3).
Section 290.5 does not define the phrase “community safety would be significantly enhanced.” However, the purpose of section 290 is to ensure police can surveil sex offenders at all times because they pose a “continuing threat to society.” People v. Sorden (2005) 36 Cal. 4th 65, 73.
In the absence of a statutory definition, words should be given their usual and ordinary meanings Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 376. “Significant” is defined as “having or likely to have influence or effect: deserving to be considered, important, weighty, notable.” Webster’s Third New International Dictionary (1981) p. 2116, col 2, capitalization omitted. “Enhanced” is defined as to raise or lift. Id., at 753, col. 3. Thus, the prosecution must produce evidence establishing that requiring continued registration appreciably increases society’s safety.
This legal framework had not been applied in an SB 384 case at the appellate court level until April 11, 2023, when the Fourth Appellate District reviewed the ruling of Judge Thomas Glazier in the Orange County Superior Court in People v. Sonny Kim Thai. Mr. Thai appealed Judge Glazier’s denial of his 290.5 petition to terminate his sex offender registration obligation.
In 1997, Mr. Thai owned and operated a liquor store in Orange County. Thai was 39 years old at the time. Twelve-year old John Doe visited the liquor store frequently and often spoke with Thai as he bought chips and candy there.
One day, Thai asked Doe how old he was and Doe told him he was twelve. Thai told him that he looked big for his age and asked him if he lifted weights. He then asked him, “Do you jack off?”
Thai then gave Doe a Playboy magazine and directed him to the empty office in the back of the store. In the office, Doe sat down in a chair. Thai then entered the office and asked Doe to pull down his pants. Doe hesitated. Thai then pulled down his pants and underwear. Thai then knelt down on the floor and masturbated Doe until his ejaculated. Doe got dressed and fled.
Later that day, Doe felt ill and told his mother what happened.
Thai was then arrested, charged and convicted of committing a lewd and lascivious act upon a child under the age of 14 years old (Penal Code § 288(a)). The judge sentenced him to three years in state prison and ordered that he register under Penal Code § 290.
Twenty-three years later, he filed his petition to terminate his registration obligation. The prosecution filed an opposition, calling the offense “particularly egregious” and that Thai “preyed upon” the familiar Doe. Thai’s only prior convictions were for two cases where he sold alcohol to minors. After the 288(a) conviction, he had no convictions in 23 years.
The prosecution explained that Mr. Thai had not completed any sex offender treatment program.
The prosecutor also attached the police report from the underlying crime.
The judge asked Thai’s counsel if Mr. Thai had completed any type of sex offender treatment program and counsel explained that such a program did not exist until 2006. Thai’s counsel also argued that there was no evidence that Thai was currently a danger and therefore the prosecution had not satisfied its burden of proof.
The judge then denied the petition, saying it weighed the facts of the case “heavily” and ordered that Thai could not re-petition for five years.
On appeal, the Fourth Appellate District reversed Judge Glazier. The appellate court explained that the trial court must consider:
  1. The nature and facts of the registrable offense;
  2. The age and number of victims;
  3. Whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours);
  4. Criminal and relevant noncriminal behavior before and after the conviction for the registrable offense;
  5. The time period during which the person has not reoffended;
  6. Successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and
  7. That person’s current risk of sexual or violent re-offense, including that person’s risk levels on SARATSO static, dynamic and violence risk assessment instruments, if available.
Penal Code § 290.5(a)(3).
The Fourth Appellate District added that parties may submit affidavits, declarations and police reports or any other “reliable, material and relevant evidence” to address these factors.
The appellate court characterized the trial court as “singularly focused” on the facts of the underlying case. But “those facts alone do not demonstrate Thai was a risk to the community 24 years later.” The prosecution offered “no evidence that Thai presents a danger today.
Indeed, the evidence suggests the opposite. He was not suffered any conviction.” The prosecution failed to establish with “reasonable, credible and solid evidence” that “community safety would be significantly enhanced by requiring Thai to register with the sex offender registry to five more years.” Therefore, Judge Glazier abused his discretion by denying the petition. The order was thus reversed.
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