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Man Who Raped Child Qualifies for Sex Offender De-Registration—C.A.
By a MetNews Staff Writer
A man who, in the early 1980s, raped his 7-year-old step-daughter, is entitled to be removed from the state’s sex offender list because he has not reoffended, Div. Two of the Court of Appeal for this district held yesterday, reversing a Los Angeles Superior Court order denying relief.
Judge David C. Brougham turned down a petition by Arturo Franco, saying that his conduct—in having: full on sexual intercourse with his seven-year-old daughter”—was “shocking” and “egregious community threatening behavior.” He noted that, if prosecuted today under a subsequently enacted statute, removal from the registry would be barred.
Brougham’s determination was countermanded in an opinion by Justice Brian M. Hoffstadt, who wrote:
“This case thus presents the question: May a trial court deny a petition seeking removal from the sex offender registry on the ground that the offender’s underlying sex crime also constitutes a different, later-enacted sex crime for which lifetime registration is required (and hence removal is not authorized)? We conclude that the answer is ‘no.’ ”
Fourth District Opinion
He pointed to the April 11, 2023 Court of Appeal opinion of the Fourth District’s Div. Three by Presiding Justice Kathleen O’Leary in People v. Thai. Petitioning for relief was Sonny Kim Thai who in 1997 sexually assaulted a 12-year-old boy.
O’Leary said:
“The prosecution failed its burden to produce evidence establishing that terminating the registration requirement considerably raised the threat to society because 64-year-old Thai was currently likely to reoffend.”
Hoffstadt said in yesterday’s opinion that because Brougham “gave the ‘egregious’ nature of the underlying crime controlling weight while giving no weight to the factors bearing on the now-75-year-old offender’s current likelihood of reoffending, the court’s analysis runs afoul of People v. Thai …and must be reversed.”
Three Tiers
The justice noted that although there was once a “one-size-fits-all approach” under which all sex-offender registration was for life, there is now a three-tier system. The crime Franco was convicted of— lewd and lascivious conduct—is a “Tier Two” offense, and petitions for removal from the registry are permitted generally after 20 years, he noted, although, under the current statutory scheme, a person whose conduct was the same as Franco’s could be prosecuted under a new statute creating a Tier Three offense, generally precluding removal.
Hoffstardt declared:
“Defendant 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….
“Our decision today does not diminish the egregiousness of defendant’s underlying sex offenses or in any way diminish the trauma he inflicted….Instead, we adhere to our judicial duty of implementing the will of our Legislature as reflected in the statutes it has enacted, and those statutes dictate that defendant is entitled to the relief he seeks.”
The case is People v. Franco, B324852.
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