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Doe v. Brown

September 3, 2009

JANE DOE, PLAINTIFF AND APPELLANT,
v.
EDMUND G. BROWN, JR., AS ATTORNEY GENERAL, ETC., DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of San Diego County, Luis R. Vargas, Judge. Affirmed. (Super. Ct. No. 37-2008-00084335-CU-WM-CTL)

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Pursuant to Penal Code section 1203.4,*fn1 a person who commits an offense and who subsequently fulfills all of the conditions of a grant of probation is generally entitled to be released from "all penalties and disabilities" resulting from that offense under the circumstances specified in that section. However, pursuant to section 290.007, "Any person required to register pursuant to any provision of the [Sex Offender Registration Act] shall register in accordance with the [Sex Offender Registration Act], regardless of whether the person's conviction has been dismissed pursuant to Section 1203.4. . . ." Further, pursuant to provisions contained in section 290.46 (Megan's Law), the Department of Justice (the Department) is required to make available to the public on the Internet, "information concerning persons who are required to register" pursuant to the Sex Offender Registration Act. (§ 290.46, subd. (a)(1).)

In this appeal, we must determine whether, in light of these statutes, a sex offender who has obtained the relief provided in section 1203.4 remains subject to the Internet publication provisions contained in section 290.46. We conclude that such a sex offender is subject to the Megan's Law Internet publication provisions, because he or she is "required to register in accordance with the [Sex Offender Registration Act]" (§ 290.007), and the Internet publication provisions of section 290.46 apply, by the terms of that statute, to those persons who "are required to register" pursuant to the Sex Offender Registration Act. (§ 290.46, subd. (a)(1).)*fn2

II. FACTUAL AND PROCEDURAL BACKGROUND

In November 1992, Jane Doe was convicted of one count of committing a lewd act upon a child (§ 288, subd. (a)).*fn3 In January 2003, the trial court placed Doe on felony probation for five years.*fn4 In December 2007, the trial court entered an order granting Doe's petition for relief pursuant to section 1203.4.

In March 2008, the Department sent Doe a letter. In the letter, the Department stated:

"As the result of your prior application,*fn5 you are currently excluded from display on the Megan's Law Internet Web site maintained by [the Department]." Due to a change in the law, your exclusion is rescinded, and information about you will be made available to the public on the Megan's Law Internet Web site no sooner than 30 days from the date of this letter."

The Department explained in its letter that Doe had previously been granted an exclusion from the Internet publication provisions of Megan's Law pursuant to former section 290.46, subdivision (e)(2)(C). That statute provided that the Department could exclude from the Internet Web site the personal information of certain sex offenders who were "eligible for, granted, and successfully complete[d] probation pursuant to Section 1203.066 of the Penal Code." (Stats. 2004, ch. 745, § 1.) The Department noted that as a result of a change in Megan's Law effective October 7, 2005, the exclusion currently applies, if at all, only in cases in which the sex offender's underlying crime did not involve penetration or oral copulation, and the victim was the offender's child, stepchild, grandchild, or sibling. (§ 290.46, as amended by Stats. 2005, ch. 722, § 7.)

The Department also noted that an offender is required to clearly demonstrate facts establishing his or her eligibility for exclusion from the Internet Web site. In addition, the Department explained that, pursuant to a September 2006 amendment to Megan's Law, the Department was required to rescind the exclusions of any persons who had previously received an exclusion under a former version of the law, but who would no longer qualify for an exclusion under current law. (§ 290.46, as amended by Stats. 2006, ch. 337, § 19.)

The Department stated in its letter that Doe had not provided documents establishing her continued eligibility for exclusion from the Megan's Law Internet publication provisions. At the conclusion of the letter, the Department listed the documents that would suffice to demonstrate Doe's continued eligibility, and instructed Doe to submit any such documents to the Department immediately, or face publication of her personal information on the Megan's Law Internet Web site.

On May 21, Doe filed a petition for writ of mandate in the trial court.*fn6 In her petition and supporting memorandum, Doe noted that in December 2007, the trial court dismissed her 1992 conviction for committing a lewd act on a child (§ 288, subd. (a)) pursuant to section 1203.4.*fn7 Doe contended that the trial court's dismissal of her 1992 conviction "entitled [her] to be relieved of all penalties and disabilities stemming from her conviction, except for those specifically carved out by statute." Doe maintained that publication of her personal information on the Megan's Law Internet Web site is a disability that stems from her conviction and argued that such publication does not come within any statutory exception to section 1203.4 relief. Doe claimed that, accordingly, the court should order the Department to show cause as to why it should not be permanently enjoined from publishing her personal information on the Megan's Law Internet Web site.

Doe filed an unopposed request for an emergency order enjoining the Department from posting her personal information on the Megan's Law Internet Web site pending the outcome of the writ proceeding. The following day, the trial court granted Doe's request.

The Attorney General, representing the Department, filed a return to the petition. In his return, the Attorney General contended that, pursuant to section 290.007, it is undisputed that Doe is required to register as a sex offender pursuant to section 290 despite the dismissal of her 1992 lewd act conviction pursuant to section 1203.4. The Attorney General argued, "[T]he [Department] is mandated to post [Doe's] information on the Megan's Law Internet Web site so long as [Doe] is still required to register under . . . section 290." The Attorney General also argued that Internet publication is "regulatory and not punitive," and that therefore, "section 1203.4[,] which releases a defendant from all penalties and disabilities should have no effect on the [Department's] duty to make [Doe's] information available to the public via the [I]nternet."

In her reply to the Department's return, Doe responded to the Department's contention that it continued to have a duty to publish her personal information on the Internet because the dismissal of her conviction pursuant to section 1203.4 did not relieve her of the duty to register under the Sex Offender Registration Act. Doe maintained that the Department's argument rested on two faulty premises, namely: "(1) that the [Department's] duty to publish [Doe's] identifying information on the [I]nternet [Web site] derives solely from her status as a sex offender, rather than from the offense [of] which she was convicted; and (2) that section 290.007, which specifically excepts an individual's registration requirements under 'the [Sex Offender Registration Act]' from the scope of section 1203.4 relief, also excepts an individual from relief from internet publication." Doe argued further, "Had the Legislature wanted to broaden the exception set forth in section 290.007 to encompass Megan's Law publication it would and could have done so."

The trial court held a hearing at which it heard argument of counsel regarding Doe's petition.*fn8 The trial court subsequently received supplemental briefing from the parties concerning whether publication of Doe's personal information on the Megan's Law Internet Web site constitutes a penalty or disability within the meaning of section 1203.4.

The court denied Doe's petition. In its order, the court reasoned in part:

"Under the amended Penal Code, [Doe] no longer qualifies for exclusion and concedes she is required to register. Nonetheless, [Doe] contends she should be excluded from the Internet disclosure requirement because her conviction has been expunged, and . . . [I]nternet disclosure is a 'penalty' or 'disability' that must be removed pursuant to [section] 1203.4.

"Section 1203.4 states that upon expungement, a defendant 'shall thereafter be released from all penalties and disabilities resulting from the offense [ . . . ] of which [ . . . ] she has been convicted. [ . . . ]' However, the duty to register is not a 'penalty' or 'disability.'

Section 290.007 specifically states 'any person required to register . . . shall register . . . regardless of whether [the] person's conviction has been dismissed pursuant to Section 1203.4.' [Citation.] Case law has consistently held the purpose of the registration requirement is regulatory rather than punitive in nature. [Citation.]

"[Doe] has not made a prima facie showing that [I]nternet disclosure on the Megan's Law [Internet Web site] is a 'penalty or disability' from which [Doe] must be relieved ...


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