Court of Appeal denies relief from lifetime registration

Effective Jan. 1, 2022, California law provides for a three-tiered registration regime for defendants convicted of enumerated sex crimes. Penal Code § 290 categorizes sex offenses according to seriousness into Tier 1, providing for a minimum of 10 years of registration, Tier 2, with a minimum of 20 years, and Tier 3, providing for lifetime registration. Previously, all sex offenses required lifetime registration. The statute also provides a procedure by which registrants can petition the trial court for relief from registration, assuming they are in either Tier 1 or 2 and have registered for the required minimum period.

Our law firm has litigated numerous 290 petitions, successfully obtaining relief from lifetime registration. However, as the recent case of People v. Malbry (Court of Appeal No. B328627) illustrates, relief from registration is still discretionary and may be properly denied where “community safety would be significantly enhanced by requiring continued registration.” (Penal Code § 290.5(a)(3).)

The facts of Malbry’s crime are disturbing. At the 1991 preliminary hearing, the victim testified that Malbry vaginally penetrated her on a daily or near-daily basis from the time she was four or five years old until she was eight years old. She failed to report the abuse to her mother until she was eight because Malbry had threatened to harm her mother if she disclosed his conduct. Malbry was charged with five counts of lewd acts on a child (Penal Code § 288(a)) and one count of continuous sexual abuse of a child (Penal Code § 288.5). Malbry pleaded no contest to one of the Section 288(a) counts and was sentenced to six years in state prison. Upon his release, he began registering as a sex offender. Section 288(a) is a Tier 2 offense under the new registration regime. In 2022, Malbry petitioned for removal from the registry based on his 20 years of registration. The prosecution objected. While conceding that Malbry was eligible to petition the court for relief, they argued that the facts of Malbry’s crime were particularly aggravated, that Malbry took advantage of a position of trust, and that a subsequent legislative enactment, Penal Code § 288.7, would have subjected Malbry to a life sentence. The subsequent statute arguably indicated a legislative preference for lifetime registration for very aggravated violations of Section 288(a). Malbry offered only character letters in response.

The trial court denied Malbry’s petition, finding that he posed an ongoing risk of reoffending and that the continued registration requirement provided a deterrent effect. The Court of Appeal agreed. Penal Code § 290.5 provides a non-exhaustive list of factors which a court should consider in evaluating whether community safety will be significantly enhanced by requiring continued registration. The Court of Appeal applied the seven factors, including the nature and facts of the offense, the age of the victim, and Malbry’s lack of any counseling or insight into his offense, finding that they outweighed the mitigating factors of his age, lack of other criminal record, and the time elapsed since the offense conduct.

The Court of Appeal also cited other non-enumerated factors, notably the legislature’s enactment of Section 288.7. The court found that this statute, which provides life sentence punishment for adults who sexually penetrate minors under 10 years old, demonstrates a changing public attitude toward the sexual abuse of children. It is appropriate, the court found, for trial courts to take note of the legislature’s expression of this changing public sentiment. The legislature had, in effect, expressed a view that Malbry’s conduct was especially dangerous, which in turn bears on the trial court’s denial of his petition for removal from the registry.

Finally, the Court of Appeal denied Malbry’s alternative argument that his petition should have been denied without prejudice, allowing him to refile in 3 years. The court found that this argument was underdeveloped on appeal and therefore declined to consider it.