The state Attorney General's Office Friday agreed with Orange County District Attorney Todd Spitzer that Cary Jay Smith, who was recently released from a state mental health hospital and ended up in Costa Mesa, must register as a sex offender.
Smith, who is being evaluated at a mental health facility in Costa Mesa after moving around four Southern California counties since his release, could be re-admitted to a mental health hospital, Spitzer told City News Service.
"They could recommit him or release him," Spitzer said. "But at least now we'll know where he is."
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That's because the state Attorney General's Office agreed with the analysis done by Spitzer's office that Smith was mistakenly told he no longer had to register as a sex offender. Gov. Gavin Newsom issued an executive order that state prosecutors serve Smith with paperwork demanding he register as a sex offender, Spitzer said.
"They reviewed the paper we submitted and agreed he has to register," Spitzer said.
Smith's court files for a conviction in 1983 had been expunged, but there was still paperwork in another case from the mid-1980s that showed he was convicted of a sex crime that required him to register as a sex offender for the rest of his life, Spitzer said.
In the other case, the crime for which he was convicted no longer requires defendants to register as a sex offender, Spitzer said.
"The bottom line is at a minimum he will now have to register," Spitzer said.
According to the letter from Attorney General Xavier Becerra, the Orange County Superior Court "informed" his office that "no criminal records were found relating to this individual."
Becerra said his office "diligently" worked to obtain documentation of Smith's criminal history and obtained a record that supports Smith's requirement to register as a sex offender.
Smith showed up in Garden Grove on Monday and then moved to Santa Ana, but by Wednesday had moved on to a facility in Costa Mesa. It was his eighth stop since being released from Coalinga State Hospital on July 14.
Smith was dogged by protests wherever he landed, which included stays in Orange, Riverside and San Diego counties.
Smith spent 21 years at Coalinga State Hospital for openly fantasizing about raping and killing children.
"In not renewing the commitment, the state hospital determined that Mr. Smith was no longer a danger to others," Smith's attorney, Staycie Sena, said in a statement. "He has received decades of treatment. We must trust the rehabilitative process.
"Mr. Smith is under constant police surveillance, is cooperating fully with various law enforcement agencies and is working with mental health professionals to ensure the safety of the community."
Sena told City News Service in an email that the protesters who have been gathering outside various locations where Smith was staying were endangering public safety themselves.
"Please understand that by continuing to chase him down, you are contributing to a potential community disaster," Sena said. "He is being monitored closely by law enforcement officials and working closely with mental health professionals.
"Releasing his whereabouts so that angry crowds appear is not beneficial to anyone and only increases the risk of community harm."
Following his release from the state hospital, Smith stayed in Los Angeles for one night before making his way to Orange, where he checked into a halfway home on July 16, said Sgt. Phil McMullin of the Orange Police Department.
Spitzer and Orange County Board of Supervisors Chairwoman Michelle Steel issued a statement last week about Smith and sent a letter to Newsom asking for help researching why Smith was no longer required to register as a sex offender despite a conviction and requirement to do so in 1985.
Smith pleaded guilty in 1985 to a misdemeanor sex offense against a child, requiring him to register as a sex offender for the rest of his life, Spitzer said.
However, in 2005, that requirement was lifted for an unknown reason, Spitzer said.
"We need to look into this and know why he is no longer a lifetime 290," Spitzer said, referring to the code in the law that requires sex offenders to register with authorities so they can be tracked.
"We believe he is a lifetime registrant," Spitzer said.
Smith was committed to Patton State Hospital in San Bernardino in 1999 on a psychological hold when his wife gave a psychiatrist a letter her husband wrote that described sex acts he fantasized about committing with a 7- year-old boy in his neighborhood in Costa Mesa, according to prosecutors.
The state kept him locked up in a state hospital under a civil commitment that concluded he was a danger to children, according to prosecutors. Under that law, he had the opportunity to seek release in a trial every six months.
However, during the hearings he testified that he continues to fantasize about sexually assaulting and killing young boys, prosecutors said.
"He calls himself Mr. RTK," which stands for Rape, Torture, Kill, Spitzer said. "That's what I think has kept him in. He says, `If you don't cut off my penis and hands I will molest again."