Category Archives: Sex Crimes

CA Supremes OK’s Retroactive Sex Offender Registration/Disclosure in Doe v Harris

In a long awaited decision Monday in Doe v. Harris, the California Supreme Court determined that under California law, “the general rule in California is that a plea agreement is ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .’ (Gipson 117 Cal.App.4th at p. 1070.) ”

Thus, according to the Doe Court “It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. ”  (Emphasis added).

The 6-1 decision, which answers a question certified by the Ninth Circuit, resolves whether a change to existing law (specifically, the passage of “Megan’s Law”) which occurred post-plea can be applied to a defendant who pled guilty under the then-current version of P.C. 290 (California’s sex offender registration statute).

While a bad ruling from the criminal defense perspective, it’s notable that the California Supreme Court’s interpretations of law on certified questions have been proven wrong by higher courts before–most recently in Hollingsworth v. Perry, the Proposition 8 case, where the U.S. Supreme Court ultimately found that for federal purposes the initiative proponents could not defend the measure when the state refused to do so, contrary to what the California Supreme Court determined in a certified question ruling requested by the Ninth Circuit.




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Filed under Appellate, California Supreme Court, Criminal Law, Sex Crimes

Cal Supremes To Rule On Retroactivity of Sex Offender Registration Monday

Earlier today the California Supreme Court issued a Notice of Forthcoming Filing that it will render its decision in Doe v. Harris as well as an automatic death penalty appeal (in People v. Nunez/Satele).   The Doe ruling is expected to answer a question certified to the Supremes by the Ninth Circuit–namely, whether “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”

In English, the question is whether defendants who pled guilty to offenses which were not registrable sex offenses pursuant to P.C. 290 at the time of their plea can revisit their plea agreements (or have their requirement to register vacated) based on post-plea changes to state and federal law which dramatically expend the scope of offenses which require lifetime registration.

The opinion should be available at 10 a.m. Monday via the Court’s Web site.


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Filed under Appellate, California Supreme Court, Criminal Law, Sex Crimes

Cal. Sup. Ct Finally Sets Oral Argument On Case Involving Retroactive Sex Offender Registration

Here’s some good news for those hit with a requirement to register as a sex offender under P.C. 290 retroactively following their conviction (in some cases, decades earlier) for certain crimes.  As we reported two years ago, the Ninth Circuit asked the California Supreme Court to clarify “Whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law” in Doe v. Harris.

Almost exactly two years later, the California Supremes have finally gotten around to setting the matter for oral argument, which will take place on Wednesday April 3,  2013 in Los Angeles.  Under the California Constitiution, the justices have 90 days to issue an opinion following oral argument (under threat of having their pay docked) so we should have a ruling on the question shortly thereafter.


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Filed under 9th Circuit, Appellate, California Supreme Court, Criminal Law, Sex Crimes

9th Cir. Joins The Circuit Battle over SORNA

On Friday, the Ninth Circuit joined the battle pending between the Tenth and Fifth Circuits over whether Congress lacked tha power to enact the Sex Offender Registration and Notification Act (SORNA), which compels convicted State and Federal sex offenders to register with local authorities.

In United States v. Mark Steven Elk Shoulder, the Court held that subjecting defendants, like Mr. Elk Shoulder, who had been convicted prior to the enactment of SORNA in 2006 to its registration provisions did not exceed Congress’s constitutional powers.

Writing for the three-judge panel, Circuit Judge Sandra Ikuta held “Accordingly, we join the Tenth Circuit Court of Appeals in concluding that SORNA’s registration requirement,§ 16913, and by extension, the statute penalizing failure to register, § 2250, were within the scope of Congress’s authority under the Necessary and Proper Clause. See United States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir. 2011) (assuming the constitutionality of the registration provision, and concluding that § 2250 was ‘a valid exercise of congressional authority under the Necessary and Proper Clause.’); United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011) (upholding the constitutionality of § 16913 ‘[b]ased on Congress’s authority to enact [defendant’s federal] statute of conviction’ and the Necessary and Proper Clause).”

Since the obvious challenges (like the Ex Post Facto clause) to the registration statute have already been tried and have been shot down by the Ninth Circuit and the U.S. Supreme Court, a disagreement between the Ninth and Tenth Circuits on one hand and the Fifth Circuit on the other is the best hope for those who would like to see the law struck down.

As Judge Ikuta noted “We recognize that the Fifth Circuit has disagreed with this conclusion, and held that Congress did not have the authority to require federal convicts who had ‘been unconditionally released from federal custody or supervision’ before SORNA was enacted to comply with its registration requirements. See United States v. Kebodeaux, 687 F.3d 232, 244, 253 (5th Cir. 2012). The Fifth Circuit reasoned that “[a]fter the federal government has unconditionally let a person free, [ ] the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution.” Id. at 234-35. In effect, the Fifth Circuit deemed the links between SORNA’s registration requirement and an enumerated Article I power to be per se too attenuated when applied to federal convicts already released from federal custody. The Fifth Circuit distinguished Comstock because the civil commitment statute in that case applied to prisoners still in federal custody. Id. at 236.” (Emphasis added).

Given the circuit split and the importance of SORNA’s retroactive application provisions, it would seem a cert petition to the U.S. Supreme Court is likely if not certain. Until and unless that happens, sex offenders in the Ninth Circuit have lost another means of challenging their registration requirements.


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Filed under Criminal Law, Sex Crimes

Why No City Ordinance is Needed to Ban Public Nudity In San Francisco

While other cities fret about underfunded pension liabilities, here in San Francisco the latest keruffle is over the supposed “problem” of nudists in public spaces.

Of course, this being San Francisco, the measure is being pushed by the unfortunately-named Supervisor Scott Weiner, whose main target (based on published reports) seems to be the supposed practice of some nudists to wear “cockrings” or other devices to draw attention to their genitalia.

Lost in the debate are three fundamental (at least to a criminal defense attorney like me) questions. First, is the conduct targeted by the proposed ordinance a protected activity? Second, assuming the government can restrict the behavior, are extant State laws sufficient? Third, has state legislation already preempted the field of regulation of nudity in public spaces?

With regard to the first question, the general trend by courts in California seems to be not to grant First Amendment protection to public or private nudity unless the nudity is accompanied by or part of ” ‘some mode of expression which itself is entitled to first amendment protection.’ ” Elysium Institute, Inc. v. County of Los Angeles 232 Cal.App.3d 408, 424 283 Cal.Rptr. 688 (2nd Dist. 1991)[internal citations ommitted].

Of course, this raises as many questions as it answers–and it’s almost an invitation to anyone who wants to go sky-clad to chant political slogans or carry a sign when they do so. What about a naked man with an #occupy cockring?

It may, however, explain why Supervisor Weiner says wants to exempt events like the Folsom Street Fair and presumably, though he didn’t say so explicitly, the Dyke March and the Trans March from the proposed ordinance. Simply put, he’s not doing it out of kindness–those events, particularly the Dyke and Trans marches, are clearly political speech subject to First Amendment protections.

With regard to the second question, Penal Code Section 314(1) provides “Every person who willfully and lewdly…1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby…is guilty of a misdemeanor” (Emphasis added).

Of course, this begs the question “What does ‘willfully and lewdly’ mean for the purpose of the statute? Fortunately, the California Supreme Court settled this question over 40 years ago when it decided In re Smith, 7 Cal.3d 362, 497 P.2d 807 (1972).

In Smith the Court found a man who was arrested for indecent exposure under PC 314(1) was entitled to habeas corpus relief because “The necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual ‘activity.’” (J. Mosk). Instead, the People would have to establish something more, such as “additional conduct intentionally directing attention to [the defendant's] genitals for sexual purposes” if it wanted to convict Mr. Smith of violating PC 314(1).

Similarly, a juvenile who “mooned” (i.e. exposed his buttocks) to traffic for reasons of adolescent jackassery could also not be found delinquent, since he lacked the lewd intent required by the statute (although he absolutely had the intent to annoy people) See In re Dallas W. 85 Cal.App.4th 937, 102 Cal.Rptr.2d 493 (2nd Dist. 2000).

Going back to the cockring “problem”, since the purpose of a cockring is to draw attention to the wearer’s genitals, wearing one in public while nude would appear to make one subject to arrest for violating PC 314(1) based on the plain language of the Smith case. Thus, existing state law is more than sufficient to deter the supposed problem to be remedied and the ordinance is unecessary.

What about the final question–whether or not the State has preempted this area of regulation? Unfortunately, here things get murky. While a 1975 case out of the Second District upheld a Los Angeles ordinance banning public nudity in parks (on the somewhat tortured ground that the ordinance did not purport to ban all nudity across the City’s public spaces, but only regulate it as a time/place/manner restriction) see Eckl v. Davis 51 Cal.App.3d 831, 124 Cal.Rptr. 685 (2nd Dist. 1975) and held that the L.A. ordinance was not preempted by PC 314(1), it is unclear how modern courts would treat a similar issue today. Since Supervisor Weiner aims to ban nudity on public sidewalks as well as parks and beaches, the proposed ordinance has a far wider ambit than the measure challenged in Eckl and so the holding in that case is much less helpful to his case than it could be.

The bottom line is that–as with so many other public policy issues–what’s needed is not additional laws, but enforcement of existing laws. That would solve the “problem” of the nudists with cockrings, to the extent it’s not anecdoctal and actually exists. With regard to the wider issue of those who object to nude people in public, there’s an easy remedy which costs no public money, requires no court time and consumes no scarce jail space: look away.



Filed under Criminal Law, Sex Crimes