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Megan's Law Questioned in Local Case

Justice: Man protests having to register as sex offender for spousal rape he committed three years before the requirement was passed.

January 11, 1998|TRACY WILSON | TIMES STAFF WRITER

When Fernando Urbina pleaded guilty to raping his estranged wife in 1991, Megan Kanka was a thriving 4-year-old girl.

But three years later, the New Jersey girl was brutally slain by a paroled child molester. And a new law named in her memory altered the course of Urbina's life.

Under Megan's Law, the Ventura County man must register as a sex offender with local authorities--or risk a second felony conviction.

Urbina cried foul and filed court papers in November arguing that the registration constitutes punishment imposed after the fact.

With no legal precedent in California, Urbina's motion in Ventura County Superior Court finds itself in murky legal waters.

And though a judge has already denied Urbina's motion, he also noted that the request could be made again depending on the outcome of a similar case pending before the California Supreme Court and another case recently appealed to the U.S. Supreme Court.

At issue, is whether the registration and notification provisions established by Megan's Law--a federal law passed in 1994 in the wake of the girl's murder--are constitutional.

Law enforcement advocates say the get-tough measures now enacted in all 50 states provide a valuable tool for authorities to track paroled sex offenders and to notify residents of their presence.

But defense attorneys say the law's provisions are spurred by hysteria and cast such a wide net that those individuals who have served their time are never given a second chance and allowed to get on with their lives.

"Megan's Law originally came into effect because of child sex offenders, but the scope of the law now goes much further," said Ventura attorney Arnold W. Gross, who represents Urbina. "It covers a wide range of offenses--including the types that in the past were not registrable."

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That is what happened in Urbina's case.

In 1991, he pleaded guilty to spousal rape. According to court records, Urbina had broken into his wife's home in Port Hueneme and raped her on the living room floor while holding a hunting knife. The couple had been separated for two years.

At the time of his 1991 sentencing, Urbina was told by Judge Steven Z. Perren that he would not have to register as a sex offender because spousal rape did not require registration.

But in 1993 the state statute changed, and spousal rape became a registrable offense. And the subsequent passage of Megan's Law made registration retroactive to 1944.

Urbina, who was paroled in 1995 after serving four years of an eight-year sentence, didn't learn until September 1997 that he would have to register.

"He was stunned," Gross said. "He made one bad mistake that at the time had some very, very severe consequences. . . . He has paid his dues; he has done his time."

Gross contends that his 33-year-old client is not a dangerous sexual predator likely to attack again. He described the single incidence of spousal rape as an extreme offense that arose out of a marital dispute.

"He has had no other criminal convictions or charges since he was out on parole," he said, and as such should not continue to be punished by a lifetime registration requirement.

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Deputy Dist. Atty. Audry Rohn, who argued against the motion for the district attorney's office last month, disagreed.

"This guy is a rapist," she said. "He went into the house and he brutally raped her. It was horrible. I think if somebody . . . has done it once, I think the odds are pretty good that he could do it again.

"If he is never going to do it again," she added, "he has nothing to worry about."

In considering Urbina's challenge last month, Judge Perren indicated that there were two issues for him to resolve. First, the question of whether Urbina was properly informed about not having to register at the time of his sentencing; Perren concluded he was. And second, does a registration requirement imposed years after the fact run afoul of ex post facto prohibitions?

"This really troubled me, because I thought when I first received the paperwork, this was clearly an ex post facto law," Perren said during the court hearing. "It was a punishment imposed after the fact. Just seemed clear as a bell to me. Well, I'm wrong."

The judge explained that after researching the subject, he could find "no authority in California directly on point" but that a pending case before the California Supreme Court should soon resolve the issue.

Perren said such issues have been taken up by state courts in Washington, Oregon and Louisiana. In most instances, ex post facto challenges like the one raised by Urbina have been rejected. Louisiana is the only state whose courts have ruled to the contrary, he said.

During the hearing, Perren also referred to a federal district court opinion handed down in August 1997 that found the requirements in New Jersey's law to be regulatory--not punitive.

After citing those cases, Perren concluded that the "crushing weight of authority nationwide is that it is not an ex post facto law" and denied Urbina's motion.

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