Under Penal Code 290 PC, people in California convicted of sex crimes and certain other offenses must register as sex offenders with local law enforcement. This registration must be renewed (a) every five years or (b) any time the person relocates to a new residence. Failure to register as a sex offender is itself a criminal offense.
Failure to register as a sex offender in California is typically charged as a misdemeanor if the underlying sex crime was a misdemeanor, or a felony if the underlying sex crime was a felony. A misdemeanor conviction carries up to one year in jail. A felony carries up to 3 years in jail or prison.
A person is categorized as a sex offender if he or she gets convicted of one of the sex crimes listed in PC 290. Some of these include:
PC 290 states that “every person…while residing in California, or while attending school or working in California…shall register with the chief of police of the city in which he or she is residing…”
- a former high school teacher who was convicted of Penal Code 261.5 statutory rape, for having sex with a teenage student, moves to a new city and decides not to register her new address with the authorities.
- a man who was convicted of California rape after a date rape incident in college stops registering annually because he wants to put that chapter of his life behind him.
- a former gang member who was convicted of human trafficking under California Penal Code 236.1 decides not to register after a move so that his new neighbors won’t mistakenly think he is a pedophile.
Luckily, there are several legal defenses that a person can raise for violating sex offender registration rules. These include showing that:
- the defendant did not act willfully,
- the authorities lost the defendant’s registration, and
- the defendant did not know he had to register.
Note that if a person is convicted of an offense under Penal Code 290, this conviction will likely have:
- no negative immigration consequences (if applicable), but
- may have negative consequences on a person’s gun rights.
Also, note that a person convicted of this offense can seek to have it expunged once he successfully completes:
- probation (if imposed), or
- any jail time (if imposed).
Our California criminal defense attorneys address the following faqs in this article:
- 1. What is the law under Penal Code 290 PC?
- 2. Are there legal defenses to a charge of failure to register?
- 3. What are the penalties for violating PC 290?
- 4. Are there immigration consequences?
- 5. Can a person get the conviction expunged?
- 6. What is the effect on gun rights?
- 7. Are there laws related to the failure to register?
1. What is the law under Penal Code 290 PC?
Penal Code 290 PC is the California statute that makes it a crime for a sex offender to willfully fail to register as one with the local authorities.1
A person is a “sex offender” if he gets convicted of one of the sex crimes listed in PC 290. (Examples include sexual assault, child molestation, child pornography, and other types of sexual abuse.)
A prosecutor must prove four things in order to successfully convict a defendant under this public safety statute. These are that the accused:
- was previously convicted of a California sex crime for which registration was required under Penal Code 290c PC,
- resided in California,
- knew he had a duty to register as a sex offender, and
- willfully failed to register or update his registration with the sheriff’s office.2
The purpose of section 290 is to assure that persons convicted of sex crimes will be readily available for police surveillance at all times. This is necessary because the California Legislature has found them likely to commit similar offenses in the future.3
Note that questions often arise under this statute on:
- the meaning of residence,
- the knowledge element,
- the willfulness element, and
- when and for how long a person must register.
For purposes of PC 290, “residence” means one or more addresses at which a person regularly resides. This includes a shelter or structure that can be located by a street address, including recreational and other vehicles.4
Note that registration is also required of transients under this statute. A “transient” means a person who has no residence.5 While transients may not be able to provide authorities with an address to a residence, they have a duty to inform the police of their general whereabouts.6
To be convicted of failure to register as a sex offender, a defendant must have actual knowledge of the duty to register as a sex offender.7
Note that this requirement places duties on authorities. For example, in instances where an inmate is released on parole, he must be informed of his duty to register by the official in charge of the place of confinement.8
Note though that a defendant cannot try to avoid this element by saying that he forgot about his duty to register. This means forgetfulness is not a defense to a charge under Penal Code 290.9 As one California court has stated:
“Although forgetfulness may temporarily or momentarily negate the immediate awareness that one must undertake a given action at a given time, it does not alter or affect the underlying knowledge that such action is required.”10
But note that the court has stated that mental weakness might be a defense to a PC 290 charge.11 This fact means that forgetfulness could be a valid defense in a situation where it has some type of medical basis (e.g., Alzheimer’s or senility).
Someone commits an act “willfully” when he does it willingly or on purpose.
It is not necessary that the defendant intended to break the law.12
1.4. When and how long for registration
Note that once a sex offender registers with local authorities, this registration has to be renewed:
- every year, within five working days of the person’s birthday, and
- every time the person moves to a new address.13
Transient sex offenders must register once every 30 days in addition to the annual birthday registration.
Note that California Senate Bill (SB) 384 created a three-tier sex offender registry that sets forth the period of time for which a sex offender has to register as such. Tier three offenders represent those convicted of the most serious sex offenses. According to SB 384:
- tier three offenders have to register for life,
- tier two offenders must register for a minimum of twenty (20) years, and
- tier one offenders must register for a minimum of ten (10) years.
2. Are there legal defenses to a charge of failure to register?
If a person is accused of violating registration laws, then he can challenge the accusation by raising a legal defense. Good criminal defense lawyers may be able to get a charge reduced or even dismissed.
Three common defenses to PC 290 accusations are:
- no willful act
- authorities lost registration information, and/or
- No knowledge
2.1. No willful act
Recall that an accused is only guilty under this code section if he willfully failed to register as a sex offender. This means it is always a legal defense for an accused to show that he did not act willingly or on purpose. For example, perhaps an offender did not register because he was hospitalized for an illness.
2.2. Authorities lost registration information
Under this defense, a convicted sex offender would argue that he sent all of his registration information into the police, but law enforcement lost it. The strength of the defense rests with whether or not the accused has evidence that he did in fact take all steps required to be a registered sex offender.
2.3. No knowledge
Recall that under PC 290 a prosecutor must prove that a defendant knew of his duty to register as a sex offender. It is a strong defense, therefore, for an accused to show that he had no knowledge of a duty to register. For example, perhaps a judge or lawyer failed to clearly articulate this duty and the defendant did not understand his registration requirements.
3. What are the penalties for violating PC 290?
The penalties for failing to register as a sex offender depend on whether the original sex offense the offender committed was a misdemeanor or a felony.
If convicted of a sex crime that is a misdemeanor, then failure to register is also a misdemeanor under state law.14 The possible penalties include:
- misdemeanor (or summary probation),
- imprisonment in the county jail for up to one year, and/or
- a maximum fine of $1,000.15
If convicted of a sex crime that is a felony, or if prior convictions of violating PC 290, then failure to register is a felony.16 The possible penalties include:
- felony (or formal) probation,
- imprisonment in state prison for 16 months, two years, or three years, and/or
- a maximum fine of $10,000.17
4. Are there immigration consequences if a person fails to register as a sex offender?
A PC 290 conviction, on its own, will generally have no negative immigration consequences.
Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”
- crimes of moral turpitude,
- aggravated felonies,
- controlled substances (drug) offenses,
- firearms offenses, and
- domestic violence crimes.18
A violation of PC 290 does not fall into one of these categories. However, note that if the defendant’s underlying sex-related charge does, he may face negative immigration consequences.
5. Can a person get the conviction expunged?
A person convicted under PC 290 can try to get the offense expunged.
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.19
One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.
As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:
- successfully completed probation (either felony probation or misdemeanor probation), and
- is not currently:
- charged with a criminal offense,
- on probation for a criminal offense, or
- serving a sentence for a criminal offense.20
This means that once a defendant has successfully completed probation for violating PC 290 (and his underlying offense), or serving a jail term for the same, he may begin trying to get the crime expunged.
Note, though, that even if the offense is expunged, the person will still have to register as a sex offender.
6. What is the effect on gun rights?
A conviction under Penal Code 290, on its own, may have an effect on the convicted party’s gun rights. It all depends on whether the crime is charged as a misdemeanor or a felony.
The following people are generally prohibited from acquiring or possessing a gun in California:
- felons (that is, anyone convicted of any felony offense in any jurisdiction),
- persons who are addicted to narcotics,
- persons with two or more convictions under Penal Code 417, California’s law against brandishing a weapon,
- persons convicted of certain misdemeanor offenses (such as corporal injury on a spouse, a violation of Penal Code 273.5),
- persons who suffer from mental illness, and
- people under 18 (people under 21 may not purchase a gun).
Given the first category above, if an offender’s PC 290 charge is a felony, then a conviction would mean he would have to give up any gun ownership and possession rights.
7. Are there laws related to the failure to register?
There are three laws related to the failure to register as a sex offender. These are:
- habitual sex offender law – PC 667.71,
- use of a firearm in the commission of a sex crime – PC 12022.3, and
- lewd acts with a minor child – PC 288.
7.1. Habitual sex offender law – PC 667.71
California Penal Code 667.71 PC is the California statute criminalizing habitual sexual offenders.
Under this statute, a habitual sexual offender is any person that is convicted of a certain sex crime and then is later convicted of the same sex crime or another particular sexual offense.21
PC 667.71 applies to sex crimes like:
- Rape, per Penal Code 261,
- Lewd acts with a minor child, per Penal Code 288, and
- Sodomy, per Penal Code 286.
A habitual sexual offender is guilty of a felony. The crime is punishable by imprisonment in the state prison for 25 years to life.22 Probation is generally prohibited.23
7.2. Use of a firearm in the commission of a sex crime – PC 12022.3
A “certain sex offense” includes (but is not limited to):
- rape, per PC 261,
- spousal rape, per PC 262, and
- sodomy, per PC 286.
If a defendant uses or possesses a gun during a sex crime, then in addition and consecutive to his sentence for the underlying sex offense he faces:
- three, four, or ten years for using a gun or a deadly weapon25, or
- one, two, or five years for being armed with a firearm or a deadly weapon.26
7.3. Lewd acts with a minor child – PC 288
Penal Code 288 PC is the California statute that makes it a crime for a person to commit a “lewd act” with a minor child.27
A person commits a “lewd act” when he either:
- touches a child for sexual purposes, or
- causes a child to touch him/herself or someone else for a sexual purpose.28
The specific penalties for violating PC 288 will vary depending on:
- the age of the child,
- whether the lewd act was accomplished by force, violence, duress, or threats,
- whether there was a pattern of lewd acts, and
- in some cases, the age of the defendant.
Note, though, that penalties may very well include imprisonment in a county jail or the state prison for several years.
For similar accusations in Nevada, please see our article on NRS 179D.550 – “Failure to Register” in Nevada.
For similar accusations in Colorado, please see our article on Colorado Law re “Failure to Register” (18-3-412.6 & 18-3-412.5 C.R.S.).
Also see our related article on how long does a sex offender have to register?
- California Penal Code 290 PC. CALCRIM No. 1170 – Failure to Register. See also People v. Garcia (2001), 25 Cal.4th 744.
- Barrows v. Municipal Court (1970), 1 Cal. 3d 821.
- California Penal Code 290.011g. See also People v. Aragon (2012) 207 Cal.App.4th 504.
- See same.
- People v. Wallace (2009) 176 Cal.App.4th 1088.
- People v. Aragon, supra.
- People v. Garcia, Supra.
- People v. Barker (2004), 34 Cal.4th 345.
- See same.
- See same.
- CALCRIM No. 1170 – Failure to Register. See also People v. Barker, Supra.
- California PC 290b.
- California PC 290.018.
- See same.
- See same.
- See same.
- See INA 237 (a) (2) (A).
- California PC 1203.4.
- See same.
- California Penal Code 667.71.
- California Penal Code 667.71(b).
- California Penal Code 667.71(e).
- California Penal Code 2022.3.
- California Penal Code 12022.3a.
- California Penal Code 12022.3b.
- California Penal Code 288.
- See same.