He's Not a Sex Offender, Married Man Says
VISALIA, Calif. (CN) - A man required to register as a sex offender for life for having consensual relations with his now-wife 24 years ago - when he was 19 and she was 17 - asked a state court to remove that obligation so he can get on with his life.
In 1989, police busted Lonny Leon Rivera, then 19, for having "consensual, voluntary relations" with his 17-year-old girlfriend. He pleaded guilty to a single count of oral copulation with a minor. That charge requires mandatory, lifetime registration as a sex offender in the state of California, according to Rivera's lawsuit in Tulare County Court.
Rivera and his girlfriend remained together and are now married.
Rivera registered, but acknowledges that he failed to update his information annually from 1991 through 2011. In 2012, California Attorney General Kamala Harris filed a criminal complaint for failure to register as a sex offender. Rivera was arraigned in October.
In his petition for writ of mandate, Rivera claims that the state's demand is unconstitutional.
"Rivera's inclusion in the sex offender registry under the mandatory provisions of the California Sex Offender Registration Act violates his right to equal protection of the laws, as guaranteed by the Fourteenth Amendment of the U.S. Constitution and Article I, Section 7 of the California Constitution," Rivera says in the petition, citing a 2006 ruling by the California Supreme Court in People v. Hofsheier.
"He is entitled to this court vacating its order of July 25, 1989 ordering Rivera to register as a sex offender. He is further entitled to an order directing the California Department of Justice to terminate him from the Sex Offender Tracking Program."
In Hofsheier, the supreme court addressed a quirk in state law on sexual conduct with minors: An oral copulation conviction requires lifetime registration as a sex offender, while a conviction for statutory rape does not. The high court found that disparity - the less serious offense punished more harshly for a lifetime - violates constitutional guarantees.
It took the justices another four years to decide on the appropriate mechanism to address the disparity. Finally, the high court ruled People v. Picklesimer in 2010 that people such as Rivera - no longer in custody and long past the appeals stage - must bring writ of mandate petitions in a trial court for resolution of the issue.
Rivera says he expects Harris will fight to keep him on the sex offender registry, despite admitting in Picklesimer that the mandatory requirement is unconstitutional. He adds that the state will likely push for discretionary registration - a decision that will ultimately be up to the trial court.
"The court should take into account the risk the particular offender poses to the public, and the factors supporting a registration order must outweigh the 'substantial and onerous burden' on the defendant of the lifelong duty to register, along with all the attendant consequences of being required to register including community notification and internet dissemination provisions, restrictions on where registered sex offenders may lawfully reside, and local ordinances restricting where offenders may lawfully 'be present,'" Rivera says.
He adds: "Rivera poses no danger of sexual reoffense. He has lived in the community for more than 25 years since the conviction and has not sexually reoffended. Rivera has not been arrested, charged or convicted of any sexual offense over the past 20 years."
The only way a trial court could impose a discretionary registration requirement would be to find Rivera will become a sexual predator in the future, according to the petition.
"There is absolutely nothing in the record to support such a finding," it states. "Not only has Rivera not committed any offenses, he has also remained with the 17-year-old girl involved in the underlying offense. They have been married and together for more than 25 years. Neither his original conviction nor subsequent criminal history (or lack thereof) could support an order requiring him to register as a sex offender." (Parentheses in original.)
Rivera asks the court to vacate the original registration order and direct the California Department of Justice to remove him from the database.
He is represented by Timothy Rote, with the Tulare County Public Defender.