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Name: People v. Franco (2024) 99 Cal.App.5th 184
Case #: B324852
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 01/25/2024
Summary

Trial court erred by denying defendant’s petition for removal from the sex offender registry on the ground that the underlying sex crime also constitutes a different, later-enacted sex crime that requires lifetime registration. In 1985, defendant pleaded no contest to two counts of committing lewd and lascivious acts with a minor (Pen. Code, § 288(a)) and was ordered to register as a sex offender for the rest of his life. After the Legislature amended the sex offender registration statutes to create a three-tier system for registration, defendant filed a petition to terminate his registration in 2021. At a contested hearing, the trial court denied the petition and defendant appealed. Held: Reversed. The Court of Appeal concluded that People v. Thai (2023) 90 Cal.App.5th 427 governs this case and mandates reversal due to the trial court’s decision to give “controlling weight to the ‘egregious’ nature of defendant’s offenses despite 37 years of law-abiding behavior since the offenses and despite the People’s failure to produce any other evidence indicating that defendant, age 74 at the time of the hearing, ‘was currently likely to reoffend.’” Despite Thai, the People argued that the nature of one of defendant’s offenses by itself may permissibly be viewed as controlling because, if defendant were prosecuted today, he would likely be convicted of violating section 288.7, which requires lifetime registration but was not enacted until 2006. The court rejected this argument. The sex offender registration statutes hinge the designation of tiers on whether the defendant “was convicted” of certain crimes—“not on whether the defendant ‘could have been convicted’ of other crimes, including crimes that did not yet exist at the time the sex offense was committed.” Defendant is a Tier 2 offender based on his offenses and is entitled to be removed from the sex offender registry because he has not reoffended and has been registering for well in excess of the minimum 20 years.