People v. Smyth ( 2024 )

Filed 1/24/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Glenn)
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THE PEOPLE, C097934
Plaintiff and Respondent, (Super. Ct. No. 22CR17324)
v.
CLIFFORD JAMES SMYTH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Glenn County, Donald Cole
Byrd, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin
Doering, Deputy Attorneys General, for Plaintiff and Respondent.
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Clifford James Smyth appeals from the trial court’s order denying his Penal Code
section 290.5 petition for termination from the California sex offender registry.1 Smyth
is not registered as a sex offender in California. In support of his petition, he submitted
evidence that he is currently registered in Oregon, where he resides. On appeal, he
argues the denial of his petition must be reversed because the requirement that a petition
be filed in the county where the individual is registered is contrary to legislative intent,
absurd, and violates equal protection. We affirm the order.
I. BACKGROUND
Section 290 requires persons convicted of certain specified sex crimes to register
as sex offenders with local law enforcement as long as they reside, attend school, or work
in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 60 Cal.4th 1044, 1048.)
The statute “ ‘is intended to promote the “ ‘state interest in controlling crime and
preventing recidivism in sex offenders’ ” ’ [citation] and serves ‘an important and vital
public purpose by compelling registration of many serious and violent sex offenders who
require continued public surveillance.’ ” (Johnson v. Department of Justice (2015) 60
Cal.4th 871, 877.) Until recently, the obligation to register was lifelong. (Wright v.
Superior Court (1997) 15 Cal.4th 521, 527.) “Commencing January 1, 2021, Senate Bill
No. 384 (2017-2018 Reg. Sess.) [(Senate Bill No. 384)] . . . restructured the sex offender
registration requirement, establishing three tiers of registration for sex offenders,
primarily based on the offense of conviction, for periods of at least 10 years (tier one), at
least 20 years (tier two), and life (tier three). (Stats. 2017, ch. 541, § 2.5; see § 290, subd.
(d).)” (People v. Thai (2023) 90 Cal.App.5th 427, 432 (Thai).) Senate Bill No. 384
“established procedures for a person to seek termination from the sex offender registry if
1 Undesignated statutory references are to the Penal Code.
2
the person meets certain criteria, including completion of the mandated minimum
registration period. (§ 290.5, subds. (a)-(c).)” (Thai, supra, at p. 432.)
Section 290.5, subdivision (a)(1) provides, in relevant part, “A person who is
required to register pursuant to Section 290 and who is a tier one or tier two offender may
file a petition in the superior court in the county in which the person is registered for
termination from the sex offender registry . . . following the expiration of the person’s
mandated minimum registration period . . . . The petition shall contain proof of the
person’s current registration as a sex offender.” A petitioner must serve the petition on
the registering law enforcement agency, the district attorney in the county where the
petition is filed, and the law enforcement agency and district attorney in the county where
the defendant was convicted of the registerable offense. (§ 290.5, subd. (a)(2).) The law
enforcement agencies must report to the district attorney and the superior court where the
petition is filed regarding whether the petitioner has met the requirements for termination
under section 290, subdivision (e). (§ 290.5, subd. (a)(2).) The district attorney may
request a hearing to “present evidence regarding whether community safety would be
significantly enhanced by requiring continued registration.” (§ 290.5, subd. (a)(3).)
Smyth was designated by the Department of Justice as tier two. In August 2022,
he filed a petition pursuant to section 290.5 in Glenn County. The Glenn County district
attorney filed a response asserting Smyth had not fulfilled the statute’s filing and service
requirements because he does not register in Glenn County, does not register in
California at all, and resides in Oregon.
The court denied the petition. The court found Smyth is not currently registered as
a sex offender in Glenn County or in California.2
2 The trial court’s written order also indicated Smyth had not met the minimum time
requirements of section 290, subdivision (e). Smyth asserts the court found he did not
meet these requirements because he was an out-of-state registrant. This conclusion is not
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II. DISCUSSION
A. Standard of Review
“An appellate court reviews the trial court’s ruling on a petition for termination
from the sex offender registry for abuse of discretion.” (Thai, supra, 90 Cal.App.5th at p.
433.) “ ‘The abuse of discretion standard is not a unified standard; the deference it calls
for varies according to the aspect of a trial court’s ruling under review. The trial court’s
findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed
de novo, and its application of the law to the facts is reversible only if arbitrary and
capricious.’ ” (Ibid.)
B. Statutory Construction
Smyth challenges the trial court’s legal conclusion that he was not eligible for
relief under section 290.5 because he is not registered as a sex offender in California. We
review this issue de novo.
In construing a statute, “[o]ur fundamental task is to determine the Legislature’s
intent and give effect to the law’s purpose. [Citation.] We begin by examining the
statute’s words ‘ “because they generally provide the most reliable indicator of legislative
intent.” [Citation.] If the statutory language is clear and unambiguous our inquiry ends.’
[Citation.] However, we ‘will not give statutory language a literal meaning if doing so
would result in absurd consequences that the Legislature could not have intended.’ ” (In
re D.B. (2014) 58 Cal.4th 941, 945-946.)
clear from the trial court’s ruling. “The minimum time period for the completion of the
required registration period in tier one or two commences on the date of release from
incarceration, placement, or commitment, including any related civil commitment on the
registerable offense.” (§ 290, subd. (e).) The minimum period is extended by a
conviction for failing to register under the act (ibid.), but an individual who leaves
California cannot be convicted of failing to register (see People v. Wallace (2009) 176
Cal.App.4th 1088, 1102-1103). Nothing in the record establishes Smyth has met the
minimum period, but we do not address this issue because it was unbriefed.
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Smyth implicitly concedes the plain language of section 290.5 does not allow him
to file a petition because he is not registered in any California county. (See § 290.5,
subd. (a)(1) [“A person who is required to register pursuant to Section 290 and who is a
tier one or tier two offender may file a petition in the superior court in the county in
which the person is registered for termination from the sex offender registry”].) This fact
alone evinces the Legislature’s intent to provide relief only to those individuals who are
registered in California. Indeed, the relief provided for in section 290.5 is “termination
from the sex offender registry.” (Ibid.) Smyth does not identify any ambiguity in the
statute for us to construe. Rather, he argues precluding out-of-state residents from relief
“is both absurd and contrary to the Legislature’s intent in enacting the tiered system for
registration relief.” We disagree.
As Smyth notes, the legislative history for Senate Bill No. 384 explains
“California is one of the few states that requires lifetime registration with no discernment
for the type of offense.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen.
Bill No. 384 (2017-2018 Reg. Sess.) Sept. 15, 2017, p. 5.) California was one of only
four states “without some form of tiering. While this allows the public to see a majority
of offenders, the public and local law enforcement ha[d] no way of differentiating
between higher and lower risk offenders.” (Ibid.)
The arguments in favor of Senate Bill No. 384 included the assertion that “it is
estimated that local law enforcement agencies spend between 60-66% of their resources
dedicated for sex offender supervision on monthly or annual registration paperwork
because of the large numbers of registered sex offenders on our registry. If we can
remove low risk offenders from the registry it will free up law enforcement officers to
monitor the high risk offenders living in our communities. Law enforcement cannot
protect the community effectively when they are in the office doing monthly or annual
paperwork for low risk offenders, when they could be out in the community monitoring
high risk offenders. [¶] Furthermore, the public is overwhelmed by the number of
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offenders displayed online in each neighborhood and do not know which offenders are
considered low risk and which offenders are considered high risk and therefore truly
dangerous.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 384
(2017-2018 Reg. Sess.) Sept. 15, 2017, pp. 7-8.)
Smyth argues excluding him from relief is contrary to the legislative intent to
remove low risk-offenders from the duty of life-long registration, alleviate the burden of
perpetual surveillance on law enforcement, and eliminate unwarranted public concern.
These arguments are unavailing because, as someone not registered in California, none of
the Legislature’s concerns apply to him.
The fact section 290.5 does not apply to individuals who are not registered in
California is consistent with legislative intent and not absurd. The bill was designed to
rectify problems with California’s sex offender registry. As the bill recognized, other
registries operate differently. Section 290.5 provides registrants relief from California’s
sex offender registration requirements and conserves local law enforcement resources.
An out-of-state individual is already relieved of these requirements and does not require
the expenditure of local law enforcement resources for monitoring. Therefore, permitting
an out-of-state registrant to file a petition under section 290.5 in California would only
add to the burden on local law enforcement. Smyth claims he cannot get relief in Oregon
until he is relieved of his registration obligation in California, but that does not appear to
be an accurate representation of Oregon law. (See Or. Rev. Stats. § 163A.125, subd.
(1)(d) [“if a person is required to report because of a conviction . . . from another United
States court . . . , the person may not petition for relief from reporting as a sex offender in
Oregon unless the laws of the jurisdiction where the person was convicted . . . would
permit a petition for relief from reporting as a sex offender”].) Even if it was, it is neither
absurd nor contrary to legislative intent for the California legislature to leave it to Oregon
to decide eligibility for relief from whatever Oregon’s particular reporting requirements
are. The trial court did not err in concluding section 290.5 precludes sex offenders who
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are not registered under section 290 from filing for relief from those registration
requirements.
C. Equal Protection
On appeal, Smyth asserts that excluding out-of-state registrants from obtaining
relief under section 290.5 violates principles of equal protection. He forfeited this
argument by failing to raise it in the trial court. (People v. Alexander (2010) 49 Cal.4th
846, 880, fn. 14; People v. Rogers (2006) 39 Cal.4th 826, 854.) Even if we were to
exercise our discretion to reach the issue, we would reject Smyth’s claim. (See In re
Spencer S. (2009) 176 Cal.App.4th 1315, 1323 [“appellate courts have discretion to
address constitutional issues raised on appeal [citation], particularly where the issue
presented is ‘a pure question of law’ turning on undisputed facts [citation] or when
‘ “important issues of public policy are at issue” ’ ”].)
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th
228, 253.) Absent this threshold requirement, no inquiry into the justification for the
legislative distinction is necessary. (People v. Barrett (2012) 54 Cal.4th 1081, 1107.)
“This initial inquiry is not whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law challenged.’ ” (Cooley,
supra, at p. 253.) Smyth argues he is similarly situated to California registrants because
he, like an eligible in-state registrant, no longer poses a danger to the community nor
warrants continuous police surveillance. We agree with the People that out-of-state
registrants are not similarly situated to California registrants for purposes of section
290.5, because they do not contribute to the problems identified by the Legislature when
it decided to adopt the statute. Out-of-state registrants are not monitored by California
law enforcement and do not overwhelm the California public because their names do not
appear in its registry.
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Even if we assumed individuals required to register in other states are similarly
situated to sex offenders required to register in California, defendant’s equal protection
claim would fail because the distinction between the two groups survives the requisite
degree of scrutiny. “Because sex offender registration does not implicate a suspect class
or a fundamental right, rational basis review applies here.” (Legg v. Department of
Justice (2022) 81 Cal.App.5th 504, 511.) “Under these principles, equal protection of the
law is denied only where there is no ‘rational relationship between the disparity of
treatment and some legitimate governmental purpose.’ [Citation.] In other words, the
legislation survives constitutional scrutiny as long as there is ‘ “any reasonably
conceivable state of facts that could provide a rational basis for the classification.” ’
[Citation.] This standard of rationality does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in ‘ “rational
speculation” ’ as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74-75.)
We agree with the People that allowing only California registrants to petition to
terminate their California registration is reasonably related to the state’s interests in
preserving its own law enforcement resources and focusing those resources on public
safety in California. There is no equal protection violation.
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III. DISPOSITION
The order is affirmed.
/S/
RENNER, J.
We concur:
/S/
EARL, P. J.
/S/
KEITHLEY, J.*
* Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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