People v. Slusher CA4/1 ( 2024 )

Filed 10/22/24 P. v. Slusher CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081443
Plaintiff and Respondent,
v. (Super. Ct. No. SD102219)
LELAND SLUSHER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Theodore M. Weathers, Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Brian A. Segal, Kerry Ramos and Nora S. Weyl, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Leland Slusher appeals from an order denying his Penal
Code1 section 290.5 petition seeking termination from the sex offender
registry in California. The superior court denied the petition because Slusher
was not, in fact, registered in California. He was only registered in
Arkansas, where he currently resides. At oral argument, Slusher’s counsel
informed us that he recently obtained termination relief in Arkansas. He
maintains he is nevertheless entitled to an order effectively stating that if
he ever returned to California he would not be required to register here.2
He argues that reading section 290.5 as denying out-of-state residents such
relief would be absurd, contrary to the legislative intent behind recent sex
offender registry reform in this state, and violate various constitutional
protections. For reasons we explain, we see no error or constitutional
infirmity in the court’s ruling and therefore affirm the order denying relief.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, Slusher pleaded guilty to two counts of committing a lewd act
upon a child. (§ 288, subd. (a).) At the time, California law required him to
register as a sex offender for life as a consequence of this conviction. He
registered with the San Diego Police Department when he was released from
prison in 1998 and continued to do so until he left California in 2002. His
work on oil refineries took him to several states in subsequent years, and he
duly registered in those jurisdictions according to their respective mandates.
In 2018, he settled in Arkansas, where state law required him to register as a
sex offender because of his California conviction.
1 All further undesignated statutory references are to the Penal Code.
2 We assume without deciding that Slusher continues to have standing to
pursue this appeal despite the fact that he is no longer subject to a
registration requirement in any jurisdiction.
2
“Commencing January 1, 2021, Senate Bill No. 384 (2017–2018 Reg.
Sess.) . . . 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.) Relevant here,
committing a lewd act upon a child (§ 288, subd. (a)) is now designated a tier-
two offense with a 20-year registration minimum. (§ 290, subd. (d)(2)(A).)
Senate Bill No. 384 also amended section 290.5 to allow individuals
convicted of a tier one or tier two offense to seek termination from the
registry following the expiration of their minimum registration period.
(Stats. 2017, ch. 541, § 12; see § 290.5, subd. (a)(1).) The petition must be
filed “in the superior court in the county in which the person is registered”
and include “proof of the person’s current registration as a sex offender.”
(§ 290.5, subd. (a)(1).) It must be served on the registering law enforcement
agency; the district attorney in the county where the petition is filed; and,
if different than the county where the petition is filed, the law enforcement
agency and district attorney of the county of conviction. (Id., subd. (a)(2).)
After the new law took effect, Slusher filed a petition under section
290.5 asking the San Diego Superior Court to terminate his duty to register
in California since he had already been registered for more than 20 years.
To his petition, Slusher attached documents confirming his registration in
the State of Arkansas at the time. The People opposed the petition on the
basis that Slusher had not (and could not) fulfill the filing and service
requirements of section 290.5 as an out-of-state resident. They noted that
Slusher was registered with local law enforcement in Arkansas, not the San
Diego Police Department. The superior court requested briefing on the issue.
3
Slusher argued that the People’s interpretation of section 290.5 was
overly literal, in tension with “the larger statutory context” (i.e., § 290),
inconsistent with the legislative intent behind the amended registration laws,
and a violation of his constitutional rights. The People asserted that because
Slusher was not registered in San Diego County (or any other county in
California), the superior court lacked jurisdiction to consider his petition and
he was statutorily ineligible for termination. They further argued that
nothing about the statutory scheme was unconstitutional.
The superior court ultimately agreed with the People and summarily
denied the petition. As the court reasoned, given the language of section
290.5 and relevant Arkansas law,3 if Slusher “wished to terminate his
obligation to register, then the appropriate jurisdiction would be Arkansas.”
Slusher appeals from that denial.
DISCUSSION
A. California’s Statutory Scheme for Sex Offender Registration
We begin with some background regarding the statutory scheme
governing registration of sex offenders in California. In 1947, section 290
created a mandatory lifetime registration requirement for defendants
convicted of certain sex offenses “to assure that persons convicted of the
crimes enumerated therein shall be readily available for police surveillance
at all times because the Legislature deemed them likely to commit similar
3 The superior court specifically referenced Arkansas Code Annotated
section 12–12–919(b)(1)(A)(ii), which states: “After fifteen (15) years of
having been registered as a sex offender in Arkansas, a sex offender
sentenced in another state but permanently residing in Arkansas may apply
for an order terminating the obligation to register in the circuit court of the
county in which the sex offender resides or has last resided within this state.”
4
offenses in the future.” (Barrows v. Muni. Court of L.A. Judicial Dist. (1970)
1 Cal.3d 821, 825–826; In re Alva (2004) 33 Cal.4th 254, 264.)4 The list is
regulatory in nature, and not generally considered to be a form of
punishment (Alva, at p. 264), although it undoubtedly imposes a
“ ‘substantial’ and ‘onerous’ burden” on registrants. (Hofsheier, supra, 37
Cal.4th at p. 1197.) Over time, the sex offender registry “acquired a second
purpose: to notify members of the public of the existence and location of sex
offenders so they can take protective measures.” (Id. at p. 1196; see also
§ 290.46 [making information about registered sex offenders available to the
public online].)
By 2017, however, California had the largest sex offender registry in
the nation—exceeding 100,000 registrants—and was one of few states that
still mandated lifetime registration regardless of the seriousness of the
underlying offense or the risk of reoffending. (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 421 (2017–2018 Reg. Sess.) Apr. 25, 2017, p. 6
(Senate Public Safety); Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 421 (2017–2018 Reg. Sess.) July 11, 2017, p. 8 (Assembly Public Safety)).
The California Legislature recognized that the purpose of the sex offender
registry was being undermined by a bloated list. In explaining the need for
registration reform, the Legislature noted that local law enforcement spent
an estimated 60–66 percent “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.” (Sen. Public
Safety, supra, at p. 7.) Removing low-risk offenders from the registry would
4 Apart from convictions triggering mandatory registration, judges also
have discretion to add defendants convicted of other offenses to the list under
certain circumstances. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197–
1198 (Hofsheier); see also § 290.006 [authorizing discretionary registration].)
5
free up law enforcement to monitor high-risk offenders out in the community.
(Ibid.) Furthermore, the public was “overwhelmed by the number of
offenders displayed online in each neighborhood” and could not distinguish
low-risk offenders from offenders who were “truly dangerous.” (Ibid.)
The Legislature also realized that overbroad registration had
significant negative impacts on registrants, their families, and their
communities, including barriers to stable housing and employment, leading
to homelessness, addiction, mental illness, and poverty. (Assem. Public
Safety, supra, at p. 9.) Lifetime registration negatively affected the LGBTQ+
community in particular, as many individuals remained on the list for
engaging in consensual same-sex contact at a time when that conduct was
wrongly criminalized. (Ibid.) Creating a pathway off the registry was a step
toward making “our system fairer and more just.” (Ibid.)
Senate Bill No. 384 (originally introduced as Sen. Bill No. 421) (2017–
2018 Reg. Sess.) aimed to remedy these issues by (1) replacing universal
mandatory lifetime registration with a three-tier scheme where registrants
are sorted according to the seriousness of their offense and their risk of
reoffending, and (2) creating a process by which lower-level offenders can
petition to terminate their registration upon completing their minimum
registration period and satisfying other criteria. (Sen. Public Safety, supra,
at pp. 7, 10.)
Currently, section 290 requires anyone who is convicted of a specified
sex offense while living, working, or attending school in California to register
with the chief of police of the city where they live, or the county sheriff if they
live in an area without a police department, and, additionally, with the chief
of campus police if they live on a college campus. (§ 290, subds. (b) & (c).)
6
Section 290, subdivision (d) describes the offenses and circumstances that
determine which of the three tiers an offender will be placed into.
As mentioned above, section 290.5 allows a tier one or tier two offender
to “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 mandated minimum registration period.” (Id., subd. (a)(1).)
The termination petition must “contain proof of the person’s current
registration as a sex offender.” (Ibid.) And the petition must be served “on
the registering law enforcement agency and the district attorney in the
county where the petition is filed and on the law enforcement agency and
the district attorney of the county of conviction of a registerable offense if
different than the county where the petition is filed.” (Id., subd. (a)(2).)
The local law enforcement agency, in turn, must report receipt of the petition
to the Department of Justice (DOJ), check if the petitioner has been convicted
of any sex offenses in any other jurisdictions (see § 290.005), and report to the
district attorney and the superior court whether the petitioner has satisfied
the criteria for termination (see § 290, subd. (e)). (§ 290.5, subd. (a)(2).)
The district attorney may request a hearing if the petitioner has not
fulfilled the requirements “or if community safety would be significantly
enhanced by the person’s continued registration.” (§ 290.5, subd. (a)(2).)
If no hearing is requested, the petition must be granted if the superior court
finds: (1) the petition includes the required proof of current registration;
(2) law enforcement has confirmed that the petitioner meets the criteria for
termination (see § 290, subd. (e)); (3) there are no relevant charges pending
against the petitioner; and (4) the petitioner is not in custody or on
supervision. (§ 290.5.) Conversely, the court may summarily deny a petition
if it finds that “the petitioner does not meet the statutory requirements for
7
termination of sex offender registration or if the petitioner has not fulfilled
the filing and service requirements of this section.” (Id., subd. (a)(2).)
B. The Statutory Termination Procedure Does Not Apply to Slusher
Slusher admits that he is not registered as a sex offender in California.
He nevertheless insists that he is entitled to termination relief in San Diego
County, where he was convicted and last registered before leaving the state
decades ago.
The Third Appellate District recently considered the application of
section 290.5 to out-of-state petitioners in People v. Smyth (2024) 99
Cal.App.5th 22 (Smyth). In that case, the defendant filed a section 290.5
petition in the Glenn County Superior Court, even though he currently lived
and was registered in Oregon. (Id. at p. 25.) The superior court denied his
petition because he was not registered in Glenn County or in California. (Id.
at p. 27.) On appeal, the defendant “implicitly concede[d] the plain language
of section 290.5 [did] not allow him to file a petition because he [was] not
registered in any California county.” (Smyth, at p. 27.) He instead argued
that “precluding out-of-state residents from relief ‘[was] both absurd and
contrary to the Legislature’s intent in enacting the tiered system for
registration relief.’ ” (Id. at p. 28.)
The Court of Appeal disagreed. (Smyth, supra, 99 Cal.App.5th at
p. 28.) As the court reasoned, Senate Bill No. 384 “was designed to rectify
problems with California’s sex offender registry.” (Smyth, at p. 29.) “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.” (Smyth, at
p. 29.) In fact, the court added, allowing out-of-staters to file section 290.5
8
petitions would increase the burden on local law enforcement. (Smyth, at
p. 29.)
We agree with the analysis in Smyth. By the plain terms of
California’s registration statutes, registration as a sex offender is required
only while and for so long as a person is “residing in California” or “attending
school or working in California.” (§ 290, subd. (b).) The logic of the limitation
is self-evident. California’s primary interests in requiring registration are to
protect California residents and assist California law enforcement personnel
in performing their duties. (See generally Medtronic, Inc. v. Lohr (1996) 518
U.S. 470, 475 [“Throughout our history the several States have exercised
their police powers to protect the health and safety of their citizens”]; In re
Jose C. (2009) 45 Cal.4th 534, 555 [“ The preservation of the safety and
welfare of a state’s citizenry is foremost among its government’s interests”].)
It has little reason to monitor individuals who are entirely outside California,
i.e., persons who live, work, and/or attend school in other states.
It is for California registrants—that is, individuals who are currently
registered with local law enforcement in California—that section 290.5 offers
termination relief. It permits “[a] person who is required to register pursuant
to [s]ection 290” to “file a petition in the superior court in the county in which
the person is registered for termination from the sex offender registry . . . .”
(§ 290.5, subd. (a)(1).) As Slusher is, admittedly, not registered in San Diego
County (or any other California county), we agree with the superior court
that he is ineligible for relief in that court (or any other superior court in this
state).
Resisting this simple conclusion, Slusher primarily argues that section
290.5 does not expressly prohibit out-of-state residents from filing a petition,
nor does it contain a residency requirement. But the absence of such
9
language in the statute does not mean it authorizes people registered in other
states to seek relief in California. To the contrary, the fact that the statute
does not extend relief to people who are registered in other states means they
are excluded. (See People v. Rowland (1999) 75 Cal.App.4th 61, 66 [one
maxim of statutory construction is “expressio unius est exclusio alterius (the
expression of one thing is the exclusion of another)”].) And we cannot insert
language into a statute that has been omitted. (People v. Superior Court
(Cheek) (2023) 87 Cal.App.5th 373, 379.)
Slusher also suggests that construing section 290.5 as excluding out-of-
state registrants from relief creates tension between sections 290 and 290.5.
There is no tension. Section 290 requires individuals convicted of specified
sex offenses who live, work, or attend school in California to register, and
section 290.5 allows those who are registered in California to seek
termination under certain circumstances. Because Slusher is not registered
in California, there is no registry that a superior court in this state could
order his termination from.5
Taking a broader perspective, Slusher asserts that precluding out-of-
state registrants from seeking termination would frustrate the “obvious aim”
behind Senate Bill No. 384, which was “to dramatically decrease the number
of low-risk individuals on the state’s registry.” We reject this argument for
the same reasons articulated in Smyth, supra, 99 Cal.App.5th 22.
5 Slusher briefly mentions that, even though he lives in Arkansas now,
he remains on the California DOJ’s Sex Offender Registry. To our
knowledge, however, there is nothing in the appellate record showing that
Slusher is on any registry in this state. The Attorney General represents in
his brief that Slusher does not appear on California’s Megan’s Law website
(see § 290.46).
10
Essentially, offenders who are not registered in California do not contribute
to the problems with the registry here. (See id. at pp. 28–29.)
Finally, we will not construe section 290.5 as allowing out-of-staters to
seek an order stating they would not be required to register in California in
the event they returned to this state. Expanding the petition process to
anyone in the country who might, hypothetically, return someday would
clearly frustrate the Legislature’s goal of conserving local resources.
C. Denying Relief Does Not Violate Slusher’s Constitutional Rights
Anticipating that we might interpret the statute this way, Slusher
alternatively contends that denying out-of-state registrants relief violates
various constitutional guarantees. First, he relies on the equal protection
clauses of the federal and state constitutions. (U.S. Const., 14th Amend.;
Cal. Const., art 1, § 7, subd. (a); see also Manduley v. Superior Court (2002)
27 Cal.4th 537, 571–572 [the “equal protection provisions in the California
Constitution ‘have been generally thought in California to be substantially
the equivalent of the equal protection clause of the Fourteenth Amendment
to the United States Constitution’ ” (fn. omitted)].)
“ ‘At core, the requirement of equal protection ensures that the
government does not treat a group of people unequally without some
justification.’ ” (People v. Hardin (2024) 15 Cal.5th 834, 847 (Hardin).)
Traditionally, “our cases have set out a two-part inquiry to evaluate equal
protection claims.” (Id. at p. 848.) “ ‘We first ask whether the state adopted a
classification affecting two or more groups that are similarly situated in an
unequal manner.’ ” (Ibid.) “ ‘If we deem the groups at issue similarly
situated in all material respects, we consider whether the challenged
11
classification’ is adequately justified.” (Ibid.)6 “In a case, like this one,
subject to rational basis review, the question is ‘whether the challenged
classification ultimately bears a rational relationship to a legitimate state
purpose.’ ” (Ibid.; see also Legg v. Department of Justice (2022) 81
Cal.App.5th 504, 511 [“Because sex offender registration does not implicate
a suspect class or a fundamental right, rational basis review applies”].)
We are inclined to believe that Slusher’s equal protection challenge
fails at its inception. Slusher maintains that if interpreted to preclude his
petition for relief, section 290.5 improperly distinguishes between offenders
who remain in California and those who now live outside the state. But
section 290.5 draws no such distinction. It is section 290, which creates the
registration procedure, that draws a distinction by requiring registration only
for persons who live, work, or attend school in California. And Slusher is
certainly not suggesting that California was somehow obligated to require in-
state registration for all persons convicted in California, regardless of their
current residence or location. Section 290.5 offers termination relief to the
same group burdened with registration—namely, offenders in California.
In any event, even if we were to assume that section 290.5
discriminated against persons outside of California, there is no equal
protection violation. As discussed above, the Legislature made clear that it
amended the sex offender registration scheme—including sections 290 and
6 The Supreme Court recently clarified that, in cases involving
“challenges to classifications appearing on the face of the law,” courts do not
need to analyze whether the two groups are similarly situated. (Hardin,
supra, 15 Cal.5th at pp. 850–851.) They may skip to step two and determine
“whether the challenged difference in treatment is adequately justified under
the applicable standard of review.” (Ibid.) In such cases, the “similarly
situated” test is duplicative and unnecessary. (Id. at p. 849.) In other types
of cases, however, the test may still be useful. (Id. at p. 851.)
12
290.5—in order to prune the registry in this state so that local law
enforcement could focus its resources on high-risk offenders, the public could
meaningfully discern which offenders posed potential danger, and low-risk
offenders who had successfully registered for years could be freed from the
burdens of registration. (See Sen. Public Safety, supra, at p. 7; Assem. Public
Safety, supra, at p. 9.) These are legitimate state interests. (See, e.g., People
v. Chatman (2018) 4 Cal.5th 277, 290 [preserving government resources is a
legitimate state interest]; People v. Perez (2001) 86 Cal.App.4th 675, 678
[“an increase in public safety is a legitimate state interest”].)
And we easily conclude that limiting section 290.5 relief to in-state
registrants is reasonably related to these interests. Offenders who are not
registered in California do not contribute to the problems identified by the
Legislature as stemming from the state’s bloated registry. (Accord, Smyth,
supra, 99 Cal.App.5th at p. 30 [“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”].)
Second, Slusher argues that interpreting section 290.5 as extending
relief to in-state but not out-of-state registrants contravenes the privileges
and immunities clause of the federal constitution, which guarantees to the
citizens of each state all the privileges and immunities of citizens in any
other state. (U.S. Const., art IV, § 2, cl. 1.) This clause was designed to place
“ ‘ “the citizens of each State upon the same footing with citizens of other
States, so far as the advantages resulting from citizenship in those States are
concerned.” ’ ” (McBurney v. Young (2013) 569 U.S. 221, 226 (McBurney).)
But this does not mean “that ‘state citizenship or residency may never be
used by a State to distinguish among persons.’ ” (Ibid.) “ ‘Nor must a State
13
always apply all its laws or all its services equally to anyone, resident or
nonresident, who may request it so to do.’ ” (Ibid.) Rather, the high court
has “long held that the Privileges and Immunities Clause protects only those
privileges and immunities that are ‘fundamental.’ ” (Ibid.)
Slusher claims that denying him section 290.5 relief on the ground that
he is not registered in this state burdens his fundamental right to access the
courts here. To be sure, access to the courts is a fundamental right for
purposes of the privileges and immunities clause. (McBurney, supra, 569
U.S. at p. 231.) But section 290.5 does not deny citizens of other states
“ ‘reasonable and adequate’ ” access to California courts. (McBurney, at
p. 231.) Indeed, Slusher was able to file and obtain a decision on his petition
here. The problem is that the petition procedure Slusher seeks to invoke is
designed to allow termination of a registration requirement that, by its
terms, does not apply to him. What Slusher really wanted—at least at the
time he filed his petition—was for California courts to terminate Arkansas’s
registration requirement based on his California conviction, and that is a
matter for the Arkansas courts to address based on Arkansas law. (See ibid.
[“ ‘the constitutional requirement is satisfied if the non-resident is given
access to the courts of the State upon terms which in themselves are
reasonable and adequate for the enforcing of any rights he may have, even
though they may not be technically and precisely the same in extent as those
accorded to resident citizens’ ”].)
To the extent Slusher impliedly suggests that the unavailability of
section 290.5 relief to out-of-state offenders creates a disincentive to leave
California, and thus indirectly burdens the right to travel, he is mistaken.
As in People v. Parker (2006) 141 Cal.App.4th 1297, there is no impediment
to Slusher’s right to travel to other states. “He retained and exercised his
14
right to travel among the states and reside in a state of his own choosing.”
(Id. at p. 1307.) Moreover, he is always free to return to California, subject
himself to the registration requirements of section 290, and then seek
termination under section 290.5.
Finally, even assuming section 290.5 in some way impinged on
Slusher’s fundamental rights, we would not invalidate the statute. The
privileges and immunities clause “does not preclude disparity in treatment
where substantial reasons exist for the discrimination and the degree of
discrimination bears a close relation to such reasons.” (Supreme Court of Va.
v. Friedman (1988) 487 U.S. 59, 67.) As we have explained, the Legislature
sought to pare down the sex offender registry in California so that it would be
more useful to law enforcement and the public, and to give a chance for
termination to low-risk offenders who had successfully registered for years.
The Legislature necessarily limited the opportunity for relief to those who
are, in fact, on the registry in this state.
In sum, we agree with the superior court that Slusher needed to pursue
termination where he was registered, which was in Arkansas, not California.
Although he initially believed he could not obtain relief in Arkansas until he
first secured it in California, that was not the case. As we learned at oral
argument, he has now apparently achieved in that state the primary goal he
ultimately sought.
15
DISPOSITION
The order denying the section 290.5 petition is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
RUBIN, J.
16