Failure to Register as a Sex Offender
California Penal Code 290(b) pc

Our California criminal defense attorneys are former cops and prosecutors with decades of experience helping clients beat "Failure to Register" charges.

Registration as a sex offender under Penal Code 290 PC (known as the Sex Offender Registration Act) is, perhaps, one of the most devastating penalties you face if convicted of a sex crime in California.

It’s certainly understandable why you would willingly fail to register instead of complying with the law...registering as a sex offender potentially subjects you to ridicule, potential physical abuse, difficulties in securing housing and employment, and ultimately, isolation.

It’s also certainly 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.

If you have the misfortune of suffering a conviction based on a failure to register as a sex offender under Penal Code 290(b), California law imposes strict penalties that will only further frustrate your attempts to try to reclaim a "normal" life.

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:

How Does the Prosecutor Prove that I Failed to Register as a California Sex Offender?

Penalties, Punishment, and Sentencing for Failing to Register as a Sex Offender under California Penal Code 290(b)

What are the Defenses to Failure to Register as a Sex Offender?

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 Penal Code 290 the Sex Offender Registration Act, California rape under the Penal Code 261 sections, Penal Code 243.4 sexual battery, Penal Code 288 lewd acts with a minor, Penal Code 311 child pornography, Penal Code 288a oral copulation, and Penal Code 314 indecent exposure.

How Does the Prosecutor Prove that I Failed to Register as a California Sex Offender?

In order to prove that you failed to register as a California sex offender pursuant to Penal Code 290(b), the prosecutor must prove the following four facts (otherwise known as "elements of the crime"):

1. that you were convicted of one of the California sex crimes listed under Penal Code 290,



2. that you resided in California,



3. that you knew you had a duty to register as a sex offender, and



4. that you willfully failed to do so.¹

Let’s take a look at these elements individually to understand this offense better.

Penal Code 290 sex crimes

Penal Code 290(b) requires those who have been declared California sex offenders to register their identifying information with their local law enforcement agency as long as they live, work, or attend school in California.² The reporting requirements are quite specific and may be found in our related article on California Penal Code 290(c) the Sex Offender Registration Act.

The following is a list of some of the most commonly committed sex offenses that may subject you to these reporting guidelines:

• most acts involving California rape under the Penal Code’s 261 sections and Penal Code 243.4 sexual battery,



• most acts involving minors, such as Penal Code 288 lewd acts with a minor, Penal Code 272 contributing to the delinquency of a minor, acts relating to Penal Code 311 child pornography, Penal Codes 266h and 266i pimping and pandering with a minor, Penal Codes 269 and 288.5 aggravated and/or continuous sexual assault of a child, and Penal Code 285 incest,



• forced acts involving Penal Code 288a oral copulation, Penal Code 286 sodomy, and Penal Code 289 acts of penetration with a foreign object, and



• Penal Code 314 indecent exposure.³

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".⁴

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(b) 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.

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.⁵

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.⁶

As a result, the general legal principle that "ignorance of the law is no mistake" is not applicable to a prosecution for failing to register as a sex offender under Penal Code 290(b). 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 as to 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



• written and/or verbal notice by the Department of Corrections when you are released from jail or prison

Willful failure to register as a California sex offender under Penal Code 290

Much like the requirement that 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.

"Willfully", with respect to a failure to register prosecution, means doing an act willingly or on purpose.⁷ As such, it implies that you knew you had a duty to register and that you chose to ignore that duty.⁸

Penalties, Punishment, and Sentencing for Failure to Register as a Sex Offender

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.⁹

If the prosecutor meets that burden, and you are convicted of California Penal Code 290(b) failure to register as a sex offender, in addition to a possible probation violation, you face the following:

• up to one year in a county jail if the underlying California sex crime that you were convicted of was a misdemeanor, or



• sixteen months, or two or three years in the California State Prison if the underlying offense was a felony.¹⁰

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.¹¹ 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.

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.¹²

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 to a new jail or prison sentence.¹³

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.¹⁴

Felony failure to register as a sex offender is 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, a felony violation will also count as a strike under California’s Three Strike’s Law.

If your failure to register under Penal Code 290(b) is your third strike, you face between 25 years to life in the state prison.

And regarding 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.¹⁵

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.¹⁶ 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.¹⁷

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.

What are the Defenses to Failure to Register as a Sex Offender?

The good news is that there are many defenses 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...

If you suffer from a language barrier, this defense 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, on a similar note, "forgetting" to register will not be accepted as a defense to this charge.¹⁸

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.

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.

False accusations

While it may be unfair to those who have been unfairly "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.

Any 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...even though you absolutely abided by your obligations.

To learn more about failing to register as a California sex offender under Penal Code 290, or to speak confidentially with our California criminal defense attorneys, please don’t hesitate to contact us. 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.

Legal References:

¹Judicial Council Of California Criminal Jury Instruction 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: [1] The defendant was previously (convicted of/found to have committed) <specify the offense for which the defendant is allegedly required to register>; [2] 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>); [3] 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> [4] 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> [4] 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.]")

²California Penal Code 290 -- Sex Offender Registration Act... subdivision "c" sets forth all of the California sex offenses for which a convicted individual must register.

³See same, subsection "b". ("(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 [as a sex offender] 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.")

⁴California Penal Code 290.006 -- Court order of 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.")

⁵See Judicial Council Of California Criminal Jury Instruction 1170 -- Failure to Register as Sex Offender, endnote 1, above.

⁶See 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.")

⁷Judicial 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.")

⁸See endnote 6, above.

⁹California 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.")

¹⁰California 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.")

¹¹People 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.")

¹²See Judicial Council Of California Criminal Jury Instruction 1170 -- Failure to Register as Sex Offender, endnote 1, above.

¹³See same. ("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.")

¹⁴People 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.

¹⁵California 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.")

¹⁶People 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...")

¹⁷People 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.FN5 (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.")

¹⁸People v. Barker, (2004) 34 Cal.4th 345, 351. ("Forgetting presupposes knowledge. Appellant, in our view, conceded that he had actual knowledge of the [California sex offender] registration requirement. Human beings store in their brains a myriad of facts. At any given time the vast majority of those facts are in storage waiting for some cue to bring them to conscious recognition. A spouse may forget a wedding anniversary, a patient a medical appointment; such lapses arise not from a lack of actual knowledge but a failure to respond to cues. Persons keep calendars and appointment books, ask others to remind them of duties and obligations and tie strings around their fingers all to insure that important responsibilities are met. We conclude that within this context one willfully fails to register when possessed of actual knowledge of the requirement he or she forgets to do so."

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