Tuesday, June 24, 2014

Mandatory sex offender registration requirement cannot be expunged even if the underlying misdemeanor offense is



California Penal Code §1203.4a provides that an individual convicted of a misdemeanor, who is not granted probation and who is not serving a current sentence for any offense may withdraw his plea of guilty or nolo contendere for the misdemeanor after one year has passed from the imposition of the judgment. During the one year the individual must have served and complied with the sentence of the court. After the imposition of the judgment the individual must also have “lived an honest and upright life and . . . conformed to and obeyed the laws of the land.” Under §1203.4a the individual will be eligible to be released “from all penalties and disabilities resulting from the offense of which he or she has been convicted.”

The California Court of Appeals in People v. Hamdon, 225 Cal.App.4th 1065 (2014) interpreted that “all penalties and disabilities resulting from the offense” did not include California penal code § 290, which requires mandatory sex offender registration. The court stated that expungement of the misdemeanor offense under §1203.4a does not make the individual’s previous convictions a legal nullity. Therefore certain regulatory schemes which are not punishments are excepted from being expunged, such as licensing requirements for attorneys and doctors. The court saw the goal of mandatory sex offender registration as regulation designed for protecting the public and any retributive effects that resulted from it as being insufficient to justify the regulation being treated as a punishment.

The court pointed to California Penal Code §290.5 as the correct means for obtaining relief from mandatory sexual offender registration status. Section 290.5 provides that in order to get relief from mandatory sex offender registration an individual needs a certificate of rehabilitation, which can be obtained after having the underlying criminal offense expunged. Therefore even though Hamdon’s misdemeanor sexual battery conviction was expunged, his mandatory sex offender registration will not be dismissed until he is able to satisfy the requirements set forth in §290.5 for certificate of rehabilitation.