If you are convicted of a California sex crime...and you have served your sentence for that crime...unfortunately you will still not be done with the penalties for that conviction. You will still face the burden of registering as a sex offender under Penal Code 290 PC (known as the California Sex Offender Registration Act)...perhaps one of the most devastating penalties you face if convicted of a sex crime in California.1
The Sex Offender Registration Act requires anyone who lives in California after being convicted of a California sex crime to register with the police of the city or county where they live. This registration has to be renewed
- every year, within five (5) working days of the person's birthday, and
- every time that person moves to a new residence.2
It's certainly understandable why you would willingly fail to register instead of complying with the law. Registering as a sex offender can subject you to ridicule, difficulties in securing housing and employment, isolation, and even potential physical abuse. But if you fail to register each year or every time you move...and your failure to register was knowing and willful...you may be charged with the California crime of failing to register as a sex offender.3
If you have the misfortune of suffering a conviction based on a failure to register as a sex offender under Penal Code 290 PC, California law imposes strict penalties that will only further frustrate your attempts to try to reclaim a "normal" life.
These may include
- up to one (1) year in county jail if your initial sex crime conviction was a misdemeanor, or
- up to three (3) years in state prison if your initial sex crime conviction was a
felony, or if this is your second conviction for failing to register.4
But it's very possible that you didn't knowingly fail to register, that you didn't willfully fail to register, or that you were falsely accused of failing to register. Any of these facts could serve as a legal defense to charges of failure to register as a sex offender.
In this article, our California sex crimes defense lawyers explain the penalties for...and defenses to...failing to register as a sex offender by addressing the following:
2. Penalties, Punishment, and Sentencing for Failing to Register as a Sex Offender under California Penal Code 290
If, after reading this article, you have additional questions, we invite you to contact us. In addition, you may find helpful information in our related articles on How California Sex Offender Registration Works; California Sex Crimes; California Rape Law Penal Code 261; Penal Code 243.4 Sexual Battery; Lewd Acts with a Child California Penal Code 288; Contributing to the Delinquency of a Minor Penal Code 272 PC; California Child Pornography Crimes Penal Code 311.3 and 311.11 PC; California Incest Laws Penal Code 285 PC; Oral Copulation by Force or Fear; California "Indecent Exposure" Law Penal Code 314 PC; California's "Three Strikes" Law; "Violent Felonies" Under California Three Strikes Law; Serious Felonies Under California Three Strikes Law; and Common Legal Defenses to California Crimes.
Almost seventy-five thousand (75,000) people are currently registered as sex offenders in California...and that number does not include people currently in jail or prison who will be required to register once they get out.5 These people are in a difficult situation, since they can find themselves charged with a very serious crime not for doing something wrong . . . but for failing to do something....and thereby violating the law against failing to register as a California sex offender.
The reporting requirements of the California Sex Offender Registration Act are quite specific. Penal Code 290 PC requires those who have been declared California sex offenders to register their identifying information with their local law enforcement agency as long as they
- work, or
- attend school
in California.6 They have to do so every year, within five (5) working days of their birthday...and every time they move.7
When a California registered sex offender moves, s/he has to notify both the law enforcement agency in the place where s/he is moving to...and the agency in the place where s/he is moving from.8
In terms of the legal definition of failure to register as a sex offender under Penal Code 290, the prosecutor must prove the following four facts (otherwise known as "elements of the crime"):
- that you have been convicted in the past of one of the California
sex crimes listed under Penal Code 290(c) PC,
- that you resided in California,
- that you knew you had a duty to register as a sex offender, and
- that you willfully failed to register.9
Let's take a look at these elements individually to understand this offense better.
Penal Code 290(c) sex crimes
The following is a list of some of the most commonly committed sex offenses that may subject you to the sex offender registration requirement:
- most violations of California rape law under the Penal Code's 261 sections,
- Penal Code 243.4 PC sexual battery,
- most sex crimes involving minors, such as
- lewd acts with a child under Penal Code 288 PC,
- contributing to the delinquency of a minor under Penal Code 272 PC,
- California child pornography crimes,
- pimping and pandering with a minor under Penal Code 266h and 266i PC,
- aggravated and/or continuous sexual abuse of a child under Penal Codes 288.5 and 269, and
- violations of California incest laws,
- forced acts involving oral copulation by force or fear, Penal Code 286 sodomy, and/or Penal Code 289 forcible penetration with a foreign object,
- violations of California "indecent exposure" law
(Penal Code 314 PC),10 and
- human trafficking for prostitution-related purposes, including violations of California's laws against pimping and pandering, or for child pornography purposes.11
It should be noted that in addition to the crimes specifically listed in California Penal Code 290(c), a judge may order you to register as a sex offender for any offense that he/she believes you committed as a result of sexual compulsion or for sexual gratification.12
Example: Mitchell abducts a female acquaintance and is convicted of the California crime of kidnapping under Penal Code 207 PC. Mitchell did not sexually assault the woman...but the judge overseeing his trial is convinced that Mitchell kidnapped her for sexual gratification and would have assaulted her if he had not been caught first. So Mitchell is required to register as a sex offender despite not having actually committed a sex crime.
Residing in California
As previously mentioned, Penal Code 290's Sex Offender Registration Act requires you to register as a sex offender under Penal Code 290 if you live, work, or attend school in California. However, the second element in a "failure to register as a sex offender" prosecution exclusively deals with your residence.13 Because of this, it is not clear that you can be convicted for failing to register if you live outside California and only travel into the state every day for work.
The prosecutor must prove that, at the time you allegedly failed to register as a sex offender, you resided in California. More specifically, the prosecutor must indicate where in California you lived...in a city, in an unincorporated area, or on the campus of (or in a facility of) a California college or university.14
Example: Carson is convicted of child pornography charges in California. As soon as he has served his sentence, he moves to Oregon.
After ten years of living and working in Oregon, Carson is accepted into a master's degree program at a California university and moves into on-campus housing at the university. He keeps his Oregon driver's license and a house he owns there. But he still needs to register as a sex offender in California as long as he is living on the California campus.
Knowledge about your duty to register
This is where the prosecutor's case becomes more difficult to prove. The prosecutor must prove that you knew that you were required to register as a sex offender pursuant to California Penal Code 290's Sex Offender Registration Act.15
This makes failing to register as a sex offender under Penal Code 290 different from most crimes. For most crimes, "ignorance of the law is no mistake"...meaning that you can be convicted even if you did not know that what you were doing was illegal. But ignorance as to your reporting requirement will absolutely absolve you of any criminal liability for failing to register.
Most likely, the prosecutor will argue that you knew about your duty to register based on at least one of the multiple ways that notice is typically given. Examples of notice include (but are not limited to):
- written notice of the fact that you will be required to register as a sex offender if you are convicted of your charged offense (which is found in the official complaint that informs you of the crimes with which you are being charged),
- verbal notice by the prosecutor prior to your guilty or no contest plea,
- verbal notice by the judge when you are sentenced, and
- written and/or verbal notice by the Department of Corrections when you are released from jail or prison.16
Example: Frank has been convicted of violating California's indecent exposure law under Penal Code 314. Frank has a learning disability and reads at a second-grade level. He is later charged with failure to register as a sex offender under Penal Code 290 PC.
The prosecutor is able to show that Frank was given written, but not verbal, notice of the registration requirement. But Frank and his lawyer show that Frank could not possibly have read and understood the notice. So Frank may not have knowingly failed to register ... and he may not be guilty of the crime of failing to register.
Willful failure to register as a California sex offender under Penal Code 290 PC
Just as the prosecutor must prove that you knew you had the duty to register ... the prosecutor must also prove that your failure to do so was willful.17
"Willfully", with respect to a failure to register prosecution, means doing an act willingly or on purpose.18 As such, it implies that you knew you had a duty to register and that you chose to ignore that duty.19
However, this does not mean that you can defend yourself against charges of failing to register as a sex offender because of the fact that you forgot to register one year. California courts have held that carelessness/forgetting is not a defense to this crime.20
In order to convict you of this offense, the prosecutor must prove each and every element beyond a reasonable doubt. In essence, "reasonable doubt" means that the evidence against you is so strong that there is no other logical explanation other than the fact that you committed the charged offense.21
If the prosecutor meets that burden, and you are convicted of California Penal Code 290 failure to register as a sex offender, in addition to a possible probation violation, you face the following:
- up to one (1) year in a county jail if the underlying California sex crime that you were convicted of was a misdemeanor , or
- sixteen (16) months, or two (2) or three (3) years, in the California State Prison if the underlying offense was a felony.22
- The sex crime for which you are required to register was a felony;
- You have previously been convicted of two felonies defined as violent felonies or serious felonies; AND
- One of your previous felony convictions was for one of the a select list of especially serious crimes, which includes:
a. any "sexually violent" offense (which usually means a sex crime committed through force, violence, or threat),
b. oral copulation, sodomy, or sexual penetration with a person under 14 years of age who is more than 10 years younger than you,
c. a lewd or lascivious act involving a child under 14 years of age,
d. any murder or manslaughter offense, including an attempted offense.28
2.1. Failure to register as a California sex offender is a continuing offense
Failing to register as a California sex offender pursuant to Penal Code 290(b) is what's legally known as a continuing offense.23 This means that you are subject to the above penalties each time you violate your reporting duties...which, in turn, could ultimately result in a substantial state prison sentence.
As we discussed, Penal Code 290 requires, at a minimum, that every person required to register must annually update their information within five days of every birthday and/or within five days of changing addresses.24
Every time you fail to register (or fail to update your information within your specific reporting period) you subject yourself to a new violation...and a new jail or prison sentence.25
Example: Miguel has a prior California conviction for Penal Code 289 forcible penetration with a foreign object, a felony. After he is released from prison, he registers as a sex offender for years as required under Penal Code 290 PC. But as time goes by, Miguel starts getting careless. One year, he moves from Victorville to Palmdale, and forgets to update his registration. Then, after his next birthday, he once again forgets to register.
Miguel may be charged with two counts of failing to register as a sex offender, because he missed his registration requirement twice. Because his underlying crime was a felony, the maximum penalty for one violation is three (3) years in state prison...so Miguel may face as much as six (6) years for failing to register two times.
That said, there is an exception. If you change addresses and fail to update your information with both of the local law enforcement agencies involved in your move (that is, the agency in the area from which you are moving and the agency located in the area to which you are moving), you will only be punished for one offense.26
Example: Let's go back to Miguel from the earlier example. When he moved to Palmdale, he did not update his registration either with the police department in Victorville (his old residence) or with the police department in Palmdale (his new residence). Theoretically, this could mean he violated the law against failing to register twice...but in fact it will only be counted as one violation.
2.2. Felony failure to register as a sex offender may be a "strike" under California's Three Strike's Law
As if it weren't bad enough that you can subject yourself to multiple punishments for failure to register as a sex offender ... in some cases failing to register can count as a third strike under California's Three Strike's Law.27
Failure to register can be a third strike only if the following things are all true:
If all these circumstances apply, a conviction for felony failure to register under Penal Code 290(b) can get you 25 years to life in the state prison.29
2.3. Sentencing and plea bargaining
California law does not allow a judge to absolve you of the duty to register as a sex offender under Penal Code 290 if you are convicted of an offense that requires registration.30
Similarly, you cannot negotiate for an elimination of the duty to register as a sex offender in a plea bargain if you are pleading guilty to an offense that requires registration.31 In order to avoid the registration requirement, you would have to bargain for, and plead to, an offense that is not subject to Penal Code 290 sex offender registration.32
This is simply one of the reasons why it is critical to speak to a California sex crimes defense lawyer. This type of experienced defense attorney knows the most effective arguments to convince prosecutors to allow his/her clients to plead to offenses that don't require sex offender registration.
3. What are the Defenses to Failure to Register as a Sex Offender?
The good news is that there are many criminal defenses to criminal defenses to California crimes, including the crime of failing to register as a sex offender, that a California sex crimes defense attorney may present on your behalf, depending on the circumstances of your arrest. The following is a brief example of some of the most common.
You didn't know you were required to register
Depending on the paper trail preceding your alleged failure to register as a sex offender, this defense may be difficult to prove. If you signed documents acknowledging your registration requirements from the court or from the correctional facility in which you were incarcerated, you will most likely be prevented from asserting this defense.
But according to Santa Ana criminal defense attorney John Murray33 :
"If you suffer from a language barrier, the defense of lack of knowledge may still apply. This would even be the case if you were given verbal notice by a judge or prosecutor. Perhaps you were in an accident or underwent some type of medical procedure that caused you amnesia...perhaps you have Alzheimer's disease...perhaps you suffer from some other involuntary mental or physical condition that deprived you of knowledge. Any of these scenarios could arguably convince a judge or jury that you didn't know you were required to register."
This defense will not, however, apply to someone who has repeatedly met his/her obligations but simply stopped doing so. Under these circumstances it would be obvious that you knew you had the duty. And, as we discussed above, "forgetting" to register will not be accepted as a defense to this charge.34
You attempted to register or update your information but it wasn't received
If, for example, you mailed your annual update but your local law enforcement agency didn't receive the paperwork, you didn't willfully fail to register...and therefore can't be convicted of this offense.35
Human error can also play a role in a false or misleading charge. For example, the person entering the information into the computer may have done so inaccurately.
While it may be unfair to those who have been "marked," our society frequently stigmatizes sex offenders...and law enforcement personnel are a part of our
society. This means cops may allow their own motives to overcome their professional duties to uphold the law, all in an effort to punish you further for your underlying alleged sex offense conviction.
The officer to whom you report could conceivably contact the District Attorney's Office to request that they file charges for your failure to register under Penal Code 290 PC...even though you absolutely abided by your obligations.
Example: Marco is required to register as a sex offender because of a past conviction for continuous sexual abuse of a child. One year, his registration is processed by an officer named Tom, who has strong feelings about sex crimes committed on children. So Tom destroys Marco's registration form and, not long after, contacts a prosecutor's office to report that Marco has failed to register that year. Marco and his lawyer will need to muster evidence to fight these false accusations.
Call us for help...
To learn more about failing to register as a California sex offender under Penal Code 290 PC, or to speak confidentially with our California criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. We have local criminal law offices in Los Angeles, the San Francisco Bay area, Orange County, San Bernardino, Riverside, Ventura, and in many surrounding areas.
For information about Nevada law on failure to register as a sex offender, go to our informational article on Nevada law on failure to register as a sex offender.
1 California Penal Code 290 PC - Sex Offender Registration Act; lifetime duty to register within specified number of days following entrance into or moving within a jurisdiction; offenses requiring mandatory registration [Failure to register as a sex offender]. ("(b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.")
2 See same.
3 California Penal Code 290.018 PC - Penalties for [failure to register as a sex offender]. ("(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years. (c) If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in subdivision (b) or this subdivision shall apply whether or not the person has been released on parole or has been discharged from parole.")
4 See same.
5 California Office of the Attorney General, California Sex Registrant Statistics.
6 California Penal Code 290 PC - Failure to register as a sex offender. ("(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to "the Act" in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.")
7 Judicial Council Of California Criminal Jury Instruction ("CALCRIM") 1170 -- Failure to Register as Sex Offender (Pen. Code, § 290(b)). ("The defendant is charged [in Count ] with failing to register as a sex offender [in violation of Penal Code section 290(b)]. To prove that the defendant is guilty of this crime, the People must prove that:  The defendant was previously (convicted of/found to have committed) <specify the offense for which the defendant is allegedly required to register>;  The defendant resided (in <insert name of city>, California/in an unincorporated area or a city with no police department in <insert name of county> County, California/on the campus or in the facilities of <insert name of university or college>);  The defendant actually knew (he/she) had a duty to register as a sex offender under Penal Code section 290 [within five working days of (his/her) birthday] wherever (he/she) resided; AND <Alternative 4A-change of residence>  The defendant willfully failed to register as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus or its facilities) within five working days of (coming into/ [or] changing (his/her) residence within) that (city/county/campus).] [OR] <Alternative 4B-birthday>  The defendant willfully failed to annually update (his/her) registration as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus) within five working days of (his/her) birthday.]")
8 California Penal Code 290 PC -- Change of address [requirements to avoid failure to register charges], within or outside the state; notice to Department of Justice by jail or prison for registrants incarcerated for more than 90 days. ("(a) Any person who was last registered at a residence address pursuant to the Act who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California.")
9 See CALCRIM 1170 -- Failure to Register as Sex Offender, endnote 8, above.
10 California Penal Code 290 PC - Failure to register as a sex offender. ("(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.")
11 See Californians Against Sexual Exploitation Act ("Proposition 35"), passed Nov. 6, 2012, Section 9(c).
12 California Penal Code 290.006 PC -- Court order of [sex offender] registration for offenses committed out of sexual compulsion or for sexual gratification. ("Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.")
13 See CALCRIM 1170 -- Failure to Register as Sex Offender, endnote 8, above.
14 See same.
15 See same. See also People v. Garcia, (2001) 25 Cal.4th 744, 752. ("As stated in People v. Honig (1996) 48 Cal.App.4th 289, 334, "the term 'willfully' ... imports a requirement that 'the person knows what he is doing.' [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness. [Fn. omitted.]" Accordingly, a violation of section 290 requires actual knowledge of the duty to register.")
16 See California Penal Code 290.017 PC - Notification of duty to register prior to release from custody or confinement, or release on probation. ("(a) Any person who is released, discharged, or paroled from a jail, state or federal prison, school, road camp, or other institution where he or she was confined, who is required to register pursuant to the Act, shall, prior to discharge, parole, or release, be informed of his or her duty to register under the Act by the official in charge of the place of confinement or hospital, and the official shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register under the Act has been explained to the person. . . . (c) Any person who is required to register pursuant to the Act and who is released on probation, shall, prior to release or discharge, be informed of the duty to register under the Act by the probation department, and a probation officer shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register has been explained to him or her. . . . (d) Any person who is required to register pursuant to the Act and who is granted conditional release without supervised probation, or discharged upon payment of a fine, shall, prior to release or discharge, be informed of the duty to register under the Act in open court by the court in which the person has been convicted, and the court shall require the person to read and sign any form that may be required by the Department of Justice, stating that the duty of the person to register has been explained to him or her. If the court finds that it is in the interest of the efficiency of the court, the court may assign the bailiff to require the person to read and sign forms under the Act.")
17 See CALCRIM 1170 -- Failure to Register as Sex Offender, endnote 8, above.
18 Judicial Council Of California Criminal Jury Instruction 1170 -- Failure to Register as Sex Offender (Pen. Code, § 290(b)). ("Someone commits an act willfully when he or she does it willingly or on purpose.")
19 See same.
20 See People v. Barker, (2004) 34 Cal.4th 345, 358. ("In summary, we conclude that countenancing excuses of the sort given by defendant-that he just forgot about his registration obligation-"would effectively 'eviscerate' the statute" just as surely as characterizing violation of the statute as an instantaneous offense would have eviscerated it.")
21 California Jury Instructions -- Criminal ("CALJIC") 2.90 -- Presumption of Innocence-Reasonable Doubt-Burden of Proof. ("Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.")
22 California Penal Code 290.018 -- Penalties for violation. ("(a) Any person who is required to register under the Act based on a misdemeanor conviction or juvenile adjudication who willfully violates any requirement of the Act is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding one year. (b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the [Sex Offenders Registration] Act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the Act or who has a prior conviction or juvenile adjudication for the offense of failing to register [as a sex offender] under the Act and who subsequently and willfully violates any requirement of the Act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.")
23 People v. Meeks, (2004) 123 Cal.App.4th 695, 702. ("Failure to register [as a sex offender] under [California Penal Code] section 290 is a continuing offense (§ 290, subd. (g)(8); Wright v. Superior Court (1997) 15 Cal.4th 521, 528, 63 Cal.Rptr.2d 322, 936 P.2d 101), that is, one "marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists and there is a failure to perform that duty.")
24 See Judicial Council Of California Criminal Jury Instruction 1170 -- Failure to Register as Sex Offender, endnote 8, above.
25 See People v. Meeks, at 702, endnote 26, above. ("A defendant who knows that he is subject to prosecution for each violation of the registration requirement is more likely to comply in order to avoid additional punishment and is more likely to become visible again to law enforcement. Thus visible, he arguably is less likely to repeat his sexual crimes. By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature's intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender's whereabouts remain known.")
26 People v. Britt, (2004) 32 Cal.4th 944, 953. ("Accordingly, we conclude that a person subject to section 290's [sex offender] reporting requirements who changes residence a single time within California without reporting to any law enforcement agency, and who thus violates both subdivisions (a) and (f) of section 290, may be punished for one of those crimes, but not both. We note, however, that nothing in section 654 prohibits the court from considering the overall circumstances, including the fact that the defendant violated both provisions, in determining what punishment to impose for one of those offenses.")
27 California Penal Code 667 PC - Habitual criminals; enhancement of sentence; amendment of section. ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony [including felony failure to register as a sex offender] and have been previously convicted of serious and/or violent felony offenses. (e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: . . . (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the state prison for 25 years. . . . (C) (C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following: . . . (iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.")
28 See same.
29 See same.
30 California Penal Code 17 -- Felony; misdemeanor; infraction; classification of offenses. ("(e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.")
31 People v. McClellan, (1993) 6 Cal.4th 367, 380. ("[California Penal Code] section 290 "leaves no discretion in the trial judge to not require registration if one or more of the listed violations occurs"].) Thus, unlike the amount of a restitution fine, sex offender registration is not a permissible subject of plea agreement negotiation...")
32 People v. Olea, (1997) 59 Cal.App.4th 1289, 1298. ("The prosecution did have the authority to dismiss the sex offense charges as part of a plea bargain, subject to court approval. (See, e.g., People v. Orin (1975) 13 Cal.3d 937, 942-943, 120 Cal.Rptr. 65, 533 P.2d 193.) And the registration requirement was not an inherent incident of appellant's plea of guilty to the burglary charges; it was added later by the sentencing court based on its view of the underlying facts.")
33 Santa Ana criminal defense attorney John Murray can spot the key issues in criminal cases ranging from DUI to homicide.
34 See People v. Barker, endnote 21, above.
35 See Judicial Council Of California Criminal Jury Instruction 1170 -- Failure to Register as Sex Offender, endnote 8, above.