I am a 290 registrant. Are there restrictions on where I can live?
IMPORTANT: There are many rules affecting where 290 registrants can live, move, and work, and extra rules if you are a 290 registrant currently on state parole. Please read carefully to know what applies in your situation!
!
IMPORTANT LEGAL DEFINITION: “Distance” is measured by a straight line between the main entrance of your residence and the boundary of the nearest park or school — not by driving or walking distance.[540]
Defining “high risk”
When a 290 registrant is released into the community, DAPO conducts a risk assessment to determine their likelihood of returning to prison.The most common risk assessment tool is the Static-99R, which scores each person based on factors such as their age, existing priors, and the gender of the alleged victim. If a person gets a score of 4 or higher, DAPO designates them as a High Risk Sex Offender (HRSO).
RULE 1: If you are a 290 registrant AND currently on state parole AND you were convicted of specific sex acts involving children (specifically any offenses listed under California Penal Code sections 288 or 288.5), AND CDCR determines you to be a “high-risk” parolee, then the law says you cannot live with half a mile (or 2,640 feet) from any K-12 school or park where children regularly gather.[541]
RULE 2: If you are a 290 registrant on parole, are not allowed to live in a single-family house with another 290 registrant, unless they are legally related by birth, marriage, or adoption.[542]
RULE 3: If you are required to register as a sex offender due to a crime against a minor, you cannot reside (except as a client) in a child day care facility or residential facility or a foster family home. Violation of the law is a misdemeanor.[543]
RULE 4: Much stricter and broader residency restrictions were enacted on November 8, 2006 by Proposition 83, which banned registered sex offender from living within 2,000 feet of a school or park where children regularly gather.[544] HOWEVER, in March 2015, the California Supreme Court held that the Proposition 83 residency restrictions were unconstitutional as applied in San Diego County in the case In re Taylor.[545]
The Court found that Proposition 83 severely restricted parolees’ ability to find housing, greatly increased homelessness, and hindered access to medical and mental health treatment, drug and alcohol programs, and other rehabilitation services. Instead of promoting public safety, the residence restrictions actually hurt the efforts of parole and law enforcement authorities to supervise and assist sex offender parolees. The court thus concluded that the infringement on parolees’ liberty and privacy interests had no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators, and violated the parolees’ constitutional Fourteenth Amendment due process right to be free of unreasonable, arbitrary and oppressive official action. Following this decision, judges in other counties began to grant “temporary relief” to many more individual parolees —excusing them from having to follow the residency restrictions under Jessica’s Law.[546]
In the In re Taylor case, the California Supreme Court stated that the CDCR still has authority to impose special conditions of parole on a case-by-case basis, including residency restrictions that may be more or less restrictive than those in Proposition 83.[547]
CDCR is now reviewing all 290 registrants on a case-by-case basis—and may impose restrictions less than or greater than 2,000 feet depending on the individual parolee’s circumstances.[548] If you are subject to residency restrictions, you may still be able to work in the restricted area – BUT only if you have permission from your parole agent.[549]
!
CDCR will automatically apply residency restrictions barring 290 registrants from living within 2,000 feet of a school or park apply to individuals convicted as adults of certain offenses involving children[550]—namely Lewd Acts with a Child Under 14,[551] and Continuous Sexual Abuse of a Child.[552] Residency restrictions for all other 290 registrants are determined on a case-by-case basis, based on criminal history and other relevant information.[553] If you are required to register as a sex offender on parole, you can contact your local county public defender’s office for more information.
What if I want to live in a nursing home?
If you are applying to a longterm care facility for seniors and are still incarcerated or on community supervision, the CDCR is required by law to disclose your status as a 290 registrant.[554] Whether the facility can deny you on this basis depends on what type of facility it is.
Skilled nursing facilities, defined as healthcare institutions featuring around-the-clock medical support and meeting federal criteria for Medicaid and Medicare reimbursement, may not be able to deny you based on your registrant status IF your doctor recommends your placement there.[555] Assisted-living facilities, on the other hand, usually don’t involve doctors’ recommendations, as their residents typically need assistance with some day-to-day activities but may not need constant medical care.[556] These facilities can deny or expel you for a variety of reasons, including your 290 status.
Am I allowed to move to another state while I am on parole?
290 registrants can submit a formal application for transfer of supervision to another state, which then has the choice to accept or deny the proposed move. DAPO will send the new state a variety of information to aid it in reaching its decision. This includes your risk assessment scores, a summary of your criminal sexual behavior, a police report, and details about the alleged victim.[557]
- If the receiving state approves your application, you are required to report your sex offender registrant status.[558]
Are there any exceptions to these residency restrictions for registered sex offenders?
Yes. There are two types of exceptions:
- Your parole agent should make exceptions to these conditions if (a) you are mentally ill, and (b) you are either living in a licensed mental health facility or need medical care in such a facility.[559]
- If you are homeless, you may stay at locations such as bridges, encampments, and bus stops that are closer than 2,000 feet to a school or park, but you must keep your parole agent informed of where you are.[560] Also, if you are homeless, you may stay temporarily at an address without establishing “residency” if the stay is for approved work, receiving medical services, or conducting legitimate business (for example: if you are working or completing a task at a licensed business, professional, or government building).[561]
What happens if I don’t comply with these residency restrictions?
If you are on parole and you do not comply with the residence restrictions, you may be arrested on a parole violation charge, referred for a revocation hearing, and possibly returned to jail for up to 180 days.[562]
- 540
15 Cal. Code Regs. § 3571(e)(4). If you are required to register as a sex offender, you cannot reside within 2,000 feet of any school or park where children regularly gather. In certain cases, CDCR may also impose other residency restrictions as special parole conditions on individuals. ↑
- 541
Cal. Penal Code § 3003(g); 15 C ↑
- 542
Cal. Penal Code § 3003.5(a). ↑
- 543
Cal. Penal Code § 3003.6. ↑
- 544
Cal. Penal Code § 3003.5(b). The State has taken the position that Proposition 83 residency restriction applies only while sex offenders are on parole. People v. Mosley (2015) 60 Cal.4th 1044; In re E.J. (2010) 47 Cal.4th 1258, 1271, fn. 5. See also Doe v. Schwarzenegger
(E.D. Cal. 2007) 476 F.Supp.2d 1178 (Prop. 83 residency provision did not apply to people who were convicted prior to November 8, 2006 and paroled prior to that date); In re E.J. (2010) 47 Cal.4th 1258, 1272-1273 (Prop. 83 residency restrictions applied to all people released on parole on or after November 8, 2006). ↑
- 545
In re Taylor, 60 Cal.4th 1019 (2015). ↑
- 546
The counties that granted temporary relief to individual parolees include San Diego, Los Angeles, Sacramento, San Francisco, Contra Costa, & San Bernardino. ↑
- 547
In Re Taylor, 60 Cal.4th 1019 (2015). ↑
- 548
CDCR, Laws Related to Sex Offender Parolees, http://www.cdcr.ca.gov/parole/Sex_Offender_Facts/sex-offender-laws.html ↑
- 549
15 Cal. Code Regs § 3590.1(b). ↑
- 550
15 CCR 3582(b); Cal. Penal Code § 288(a). ↑
- 551
Cal. Penal Code § 288(a). ↑
- 552
Cal. Penal Code § 288.5. ↑
- 553
CDCR, Laws Related to Sex Offender Parolees, http://www.cdcr.ca.gov/parole/Sex_Offender_Facts/sex-offender-laws.html ↑
- 554
Cal. Health & Saf. Code § 1312. ↑
- 555
Merriam-Webster.com, Medical Dictionary, “Skllled Nursing Facility” definition, available at https://www.merriam-webster.com/medical/skilled%20nursing%20facility. ↑
- 556
Merriam-Webster.com, Medical Dictionary, “Assisted Living” definition, available at https://www.merriam-webster.com/dictionary/assisted%20living. ↑
- 557
Interstate Commission for Adult Offender Supervision (ICAOS) Rule 3.101-3. ↑
- 558
Interstate Commission for Adult Offender Supervision (ICAOS) Rule 3.101-3(c). ↑
- 559
15 Cal. Code Regs § 3590.1(d). ↑
- 560
15 Cal. Code Regs §§ 3590.2(a) and 3590.3(b) ↑
- 561
15 Cal. Code Regs § 3590. ↑
- 562
See Cal. Penal Code § 3000.08. ↑
I am a 290 registrant. Are there certain places I’m not allowed to go?
Maybe. Some cities, towns, and counties have enacted local ordinances that prohibit or restrict sex offenders from going to places where children may be present (schools, libraries, museums, parks, bus stops close to parks). However, there have been a lot of recent legal challenges to these types of restrictions.
For example, in 2014, California’s Fourth District Court of Appeal struck down a city ordinance in Irvine that barred sex offenders from entering city parks or recreation facilities without written permission from the police chief.[563] The court held that sex offender registration is governed by state law, and that local governments cannot impose additional or different types of registration requirements. Other cases raising such challenges are still in process. Alliance for Constitutional Sex Offense Laws, a California-based nonprofit organization, provides updates about recent legal developments on its website at www.californiarsol.org.
- 563
People v. Nguyen, 222 Cal. App. 4th 1168 (2014). ↑
I am a 290 registrant. Are there places I’m not allowed to work?
Maybe. If your registerable offense involved a minor, there are restrictions on your ability to work with young people. For example, you cannot work or volunteer in a child day care facility, residential facility, or a foster family home.[564] If your crime involved a minor under the age of 16, you cannot work or volunteer directly with minors in a setting that would leave you unaccompanied on more than an incidental or occasional basis, nor can you have supervisory or disciplinary power over a child.[565]
Even if your crime was not against a minor under age 16, if you want to work or volunteer in a setting where you will touch minors or will be around minors regularly without other people present, then you must notify the employer or volunteer organization that you are a sex offender registrant when you apply for or accept the position.[566] Failure to comply with ANY of the above laws is a misdemeanor.[567]
If you want to obtain a license for some type of business or profession, your criminal history including your sex offense may affect whether you will be granted a license. (See PG. 601 for more information.) You should check with the agency responsible for issuing licenses for information on its policies and application procedures. Also, prospective employers generally can ask you at some point in the process about your criminal conviction history before deciding whether or not to hire you. See PG. Error! Bookmark not defined. for more information.)
Public Notification
I am a 290 registrant. Can the government release information about me to the public?
Probably. Unless you fall under certain exceptions or your sex offense was handled in juvenile court, the state can publish your name, photograph, physical description, date of birth, and zip code on the internet.[568] This information is published on what is sometimes called the “Megan’s Law” website, after a public notification law passed in 2004.[569] The government can’t publish certain Information about you; this means the Megan’s Law website should not include the name of your employer or any criminal history not related to your registration requirement.[570]
In addition to the Megan’s Law website, state and local law enforcement agencies can release information about 290 registrants by other means when necessary to protect the public.[571]
WARNING: It is a misdemeanor for a 290 registrant to look at the Megan’s Law website.[572] However, according to the Alliance for Constitutional Sex Offense Laws, it is not illegal to ask a non-290 registrant to obtain that information, then print or email it to you.[573]
!
- 568
Cal. Penal Code § 290.46. ↑
- 569
These public notification rules apply even to a person who entered a plea bargain to a sex offense prior to the adoption of Megan’s Law on September 24, 2004, unless there was a specific agreement that future retroactive changes to the registration laws wouldn’t apply. See Doe v. Harris, 57 Cal.4th 64. (2013). ↑
- 570
Cal. Penal Code § 290.46(a)(1). ↑
- 571
Cal. Penal Code § 290.45. ↑
- 572
Cal. Penal Code § 290.46(k). ↑
- 573
FAQ, Alliance for Constitutional Sex Offense Laws, http://all4consolaws.org/faq/. ↑
I think I am being discriminated against or targeted because of public information about my sex offense. Is this legal?
The information on the Megan’s Law website should only be used for protection of the public. If it is used to commit a crime against you, the person who committed the crime may be punished and can also be liable in a civil suit.[574]
You cannot be excluded from a public business establishment because of your registration status. In addition, the information should not be used to deny you health insurance, credit, educational funds, housing, or (with certain exceptions) a job.[575]
Can I get my information removed from the Megan’s Law website?
You can apply to be taken off the Megan’s Law website if you have never been found to be a Sexually Violent Predator (SVP) AND your only registerable sex offenses fall into any of the following categories:
- A violation of Penal Code section 243.4(a) (sexual battery);
- A misdemeanor violation of Penal Code section 647.6 (child molestation) or former section 647(a) (Lewd conduct in public);
- An offense that did not involve oral copulation or penetration of any type where the victim was your child, stepchild, grandchild or sibling AND for which you successfully completed or are successfully serving probation; or
- A violation of Penal Code sections 311.1; 311.2(b), (c), or (d); 311.3; 311.4; 311.10 or 311.1 (offenses related to child pornography), if the minor was 16 years or older.
Other Special Conditions of Parole that Apply to 290 Registrants
I am a 290 registrant, and I am on state parole. What other special conditions of parole could apply to me?
Parole officials may impose other special conditions on parolees who were convicted of sex offenses. Some of these are required by state law and others can be imposed at the discretion of parole officials.
Mandatory special conditions of parole—meaning they are required by state law—include the following:
- Attendance at group therapy for at least one year;
- Waiver (giving up) of the privilege against self-incrimination;
- Waiver the right not to participate in polygraph examination;
- Waiver of psychotherapist-patient privilege during conversations with state-funded therapists. This means that any information you share in a therapy session could be used against you in the future if you ever face new criminal charges or Sexually Violent Predatory (SVP) proceedings.[576]
Discretionary special conditions of parole—meaning the parole officer gets to decide based on individual factors whether or not to impose these—include the following possibilities:
- Limitations or prohibitions on accessing computers, the Internet, or certain publications.[577]
- Prohibitions on living with minors, including your own children, step-children, nieces, nephews, or siblings.[578]
NOTE: In the Packingham v. North Carolina case, decided in 2017, the U.S. Supreme Court invavlidated a North Carolina law prohibiting sex offender registrants from accessing social media websites.[579] Though California does not have a similar law, the Packingham case could be useful to refer to when challenging parole conditions related to social media or Internet usage.
- 576
People v. Gonzales (2013) 56 Cal.4th 353 (holding that, in an SVP proceeding that took place prior to enactment of waiver requirement, admission of parolee’s statements to therapist did not violate his constitutional right to privacy; although admission of the statements violated California privilege statutes, the error was deemed harmless.) ↑
- 577
Courts have found some of these conditions to be invalid. See e.g., In re Stevens 119 Cal.App.4th 1228 (2004) (unreasonable to prohibit use of computers Internet when neither used in committing crime); United States v. Gnirke 775 F.3d 1155 (2015) (special condition of supervision barring possession of any materials that depicted “sexually explicit conduct” involving either children or adults, and forbidding registrant from patronizing any place where such materials or entertainment were available was overbroad). ↑
- 578
Whether such conditions are lawful depends on case-by-case factors, such as the scope of the condition, your type and number of sex offenses, the findings of any risk assessment evaluation, the sex and age of the minor child, and the closeness of the family relationship. See e.g., United States v. Wolf Child (9th Cir 2012) 699 F.3d 1082 (unreasonable and overbroad to prohibit registrant from living with or being in company of any minor under 18 or socializing with anyone with minor children, resulting in registrant being unable to live with or see his own (non-victim) daughters or socialize with his fiancée). ↑
- 579
Packingham v. N.C., 137 S.Ct. 1730 (2017). ↑
What happens if I don’t comply with one of these conditions?
Violating a condition of parole can subject you to a parole revocation term of up to 180 days in jail.[580] If the violation is a crime, you could also face new criminal charges. Moreover, re-incarceration on a parole violation or a new criminal term could potentially trigger a Sexually Violent Predator (SVP) evaluation and SVP commitment proceedings.
- 580
Cal. Penal Code § 3000.08. ↑
I think my parole conditions are unfair or illegal. What can I do?
Generally, a parole condition is valid unless you can show that the condition (1) has no relation to the crime of which you have been convicted; (2) relates to conduct which is not in itself criminal; and (3) requires or forbids conduct that is not reasonably related to future criminality.[581]
You can also convince a court to hold a parole condition invalid if the condition infringes upon a constitutional right and is not reasonably related to a compelling state interest.[582] Conditions that affect constitutional rights may also be invalid if they are broader than necessary to promote public safety or rehabilitation or if they are so vague that they cannot be understood and followed.[583] Also, conditions of parole that limit employment must directly relate to your crime.[584]
If you think your parole conditions are illegal under the above standards, you may be able to challenge them using the legal procedures described in the next section.
Challenging 290 Registration & Restrictions
- 581
People v. Dominguez, 256 Cal.App.2d 623, 627 (1967); People v. Lent, 15 Cal.3d 481, 486 (1975). Although Dominguez and Lent concern probation conditions, courts apply the same legal analysis to conditions of parole. In re Corona, 160 Cal.App.4th 315 (2008) ; In re Stevens,119 Cal.App.4th 1228, 1234 (2004). ↑
- 582
See e.g., In re Babak S., 18 Cal.App.4th 1077, 1084-1085 (1993) In re Stevens, 119 Cal.App.4th 1228 (2004); In re Daniel R., 144 Cal.App.4th 1 2006). ↑
- 583
People v. Smith, 152 Cal.App.4th 1245, 1250 2007) In re Stevens, 119 Cal.App.4th 1228 (2004); United States v. Wolf Child (9th Cir 2012) 699 F.3d 1082. ↑
- 584
See People v. Burden, 205 Cal.App.3d 1277 (1988). ↑
How do I challenge my 290 sex offender registration requirement, residency restrictions, or other conditions of parole?
You may think you have good legal grounds to challenge a 290 registration requirement, other statutory requirement (such as GPS tracking, or a restriction on where you can live or go or a public notification provision), or parole condition. The procedures you can use to fight the restriction or requirement will depend on which part of the state government set the rule, the point in time at which you are filing your case, whether or not you are still in custody or on some type of supervised release (parole, PRCS or probation), and whether the issue is a matter of state law or federal law. Sometimes you will have several different options. The following sub-sections very briefly and generally summarize the available legal procedures.
No matter what type of court action you file, can request that the court stay enforcement of the requirement or restriction while your case is going on. A court is more likely to grant your request if you can convince the court that your fundamental rights are being violated in a manner that will cause you irreparable harm and that you are likely to eventually win your case.[585] You should state on the cover page of your first petition or complaint that you are making a “Request for Stay,” and then in the next few pages explain why the court should stay the requirement or restriction.
Upon request, the Prison Law Office can provide free, detailed information on each of these types of actions. Information manuals and forms are also available on the Resources page of the Prison Law Office website at www.prisonlaw.com. You can write them at:
Prison Law Office
General Delivery
San Quentin, CA 94964
Administrative Appeal
If you are challenging a condition of parole set by CDCR (and which is not a condition required by a state statute or court order), you almost always must file a CDCR Form 602 administrative appeal before you can file any type of court action in either state or federal court. If your administrative appeal is denied, you should keep re-filing it until you get responses at all three levels of review.
If you are challenging a requirement set by a state statute or a court order, then you do not need to go through the 602 administrative appeal process. The 602 appeals process is described in detail starting on PG. 178.
Direct Criminal Appeal
If you were very recently convicted of a sex crime and your sentencing included a registration order, or if you recently had your parole revoked or were otherwise subjected to a court order imposing a new condition of probation or parole, then you can challenge the court’s order in a direct appeal. You can also file a direct appeal from a conviction for violating the registration laws. You must file a notice of direct appeal within 60 days after you are sentenced.
You can raise both state law and federal law issues in a direct appeal. However, if you pled guilty or no contest, the types of issues you can raise will be limited. If you do not have money to pay a lawyer, the court will appoint a lawyer to represent you in your direct appeal case.
State Habeas Corpus Petition
If you are in custody or on parole, probation, or PRCS, then you can file a state court petition for writ of habeas corpus challenging a sex offender requirement or restriction imposed by the court, state law, CDCR parole officials, or local probation officials. You can raise state and/or federal legal claims. Be aware that if you could have raised your issue on direct appeal, or if you delayed in filing your habeas petition, you may have to convince the court why your case should be allowed to proceed anyway. Otherwise, state habeas procedures are relatively simple and speedy.
If the court allows the case to proceed, it must appoint an attorney for you if you want and can’t afford one. If a local superior court denies your petition, you can re-file it, first in the Court of Appeal, then in the California Supreme Court.
State Petition for Writ of Mandate
If you are NOT either incarcerated or under parole, probation or PRCS supervision, then you CANNOT file a state habeas petition. Instead, you can challenge your sex offender registration or other requirement by filing a petition for writ of mandate.[586] Mandate procedures are somewhat similar to habeas corpus procedures. If your petition for writ of mandate is denied, you can re-file your case to the court of appeal and then to the California Supreme Court. The court has discretion to appoint an attorney to represent you, but there appears to be no requirement that it do so.
Federal Habeas Corpus Petition
If you are in custody or on parole, probation, or PRCS for your sex offense, you can file a federal habeas corpus petition challenging your sex offender requirements or restrictions.[587] However you must first have presented your issues to the California Supreme Court, either through a direct appeal or a state habeas corpus petition.
Federal habeas involves very strict timelines and procedural requirements, and the federal courts have limited authority to overturn state court decisions. Also, you can only raise federal law claims. The court has discretion to appoint an attorney to represent you, but there is no requirement that it do so in most cases. If your petition is denied, you may be able to appeal to the Ninth Circuit Court of Appeals.
Federal Civil Rights (§ 1983) Lawsuit
If you are either in OR out of custody, you can challenge a sex offender requirement or restriction by filing a federal civil rights (§ 1983) lawsuit. However, your lawsuit must not attack the validity of your criminal conviction or sentence OR seek a speedier release from parole.[588] You can generally raise only federal law issues (although there may be circumstances in which you can also include closely related state law claims). You may be able to ask for injunctive relief (an order that the state do or stop doing something) and/or money damages.
Unfortunately, federal civil rights lawsuits can involve complicated and slow procedures. Also, the court can ask an attorney to represent you only in exceptional circumstances. If you lose your case, you may be able to appeal to the Ninth Circuit Court of Appeals.[589]
- 585
See, e.g., In re E.J., 47 Cal.4th 1258 (2010) (staying enforcement of residence restriction pending determination of petitions for writ of habeas corpus); see also In re Alcala, 222 Cal.App.3d 345, 352 & n.4 (1990) (noting that temporary restraining order had been issued pursuant to habeas petition, enjoining enforcement of prison restrictions on clothing); Faucette v. Dunbar, 253 Cal.App.2d 338, 340, 346 (1967) (affirming preliminary injunction enjoining revocation of petitioner's parole); Diamontiney v. Borg, 918 F.2d 793 (9th Cir. 1990); Taylor v. Honig, 910 F.2d 62 (9th Cir. 1990). ↑
- 586
People v. Picklesimer, 48 Cal.4th 330 (2010) ; In re Stier, 152 Cal.App.4th 63 (2007). ↑
- 587
Bagley v. Harvey (9th Cir.1983) 718 F.2d 921, 922–23 (state parolee may challenge parole conditions through a federal habeas petition). ↑
- 588
Thornton v. Brown (9th Cir. 2013) 757 F.3d 834; Shoemaker v. Harris (2013) 214 Cal.App.4th 1210. ↑
- 589
The information in this section on sex offender registration and residency requirements/Proposition 83 is largely adapted from an informational letter from the Prison Law Office, Information Regarding California’s Sex Offender Registration, Tracking, Residency And Public Notice Requirements, http://prisonlaw.com/wp-content/uploads/2015/09/SexOffender-Prop83May2015.pdf (updated May 2015). ↑