Penal Code 667.71 – California “Habitual Sex Offender” Law

California Penal Code 667.71 PC imposes a prison sentence of 25 years to life for habitual sex offenders. This is anyone convicted of a certain sex crime, who is later convicted again for the same sex crime or another qualifying sex offense.

Note that the term “habitual sex offender” is often used interchangeably with “habitual sexual offender.”

PC 667.71 applies to sex crimes such as:

• Rape, per Penal Code 261 PC;
• Lewd acts with a minor child, per Penal Code 288 PC; and,
• Sodomy, per Penal Code 286 PC.

Examples:

• After getting convicted and serving time for rape, John is released from prison and gets convicted of spousal rape, per Penal Code 262 PC.
• After serving time for lewd acts with a minor, Jerome is released from prison and, after a year, gets convicted of oral copulation with a minor, per Penal Code 287 PC.
• Alejandro is convicted twice for the crime of sexual penetration, under Penal Code 289 PC.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under Penal Code 667.71. These include showing that an accused party:

• was arrested without probable cause;
• gave a coerced confession; and,
• was falsely arrested.

Penalties

A habitual sex offender is guilty of a felony. The crime is punishable by imprisonment in the California state prison for 25 years to life.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is an “habitual sex offender” in California?
• 2. What are the best defenses to PC 667.71?
  • 2.1. No Probable Cause
  • 2.2. Coerced Confession
  • 2.3. Police Arrested the Wrong Person
• 3. What is the sentencing?
• 4. Related Offenses
  • 4.1. Rape – PC 261
  • 4.2. Spousal Rape – 262
  • 4.3. Lewd Acts with a Minor Child – PC 288

1. What is an “habitual sex offender” in California?

California Penal Code 667.71(a) states:

a habitual sexual offender is a person who has been previously convicted of one or more of the offenses specified in subdivision (c) and who is convicted in the present proceeding of one of those offenses.¹

Subdivision (c) of PC 667.71 states that the section is applicable to the following crimes:

1. Rape, in violation of Penal Code 261.
2. Spousal rape, in violation of Penal Code 262.
3. Rape, spousal rape, or sexual penetration, in concert, in violation of Penal Code 264.1.
4. Lewd or lascivious act, in violation of Penal Code 288.
5. Sexual penetration, in violation of Penal Code 289.
6. Continuous sexual abuse of a child, in violation of Penal Code 288.5.
7. Sodomy, in violation of Penal Code 286.
8. Oral copulation, in violation of Penal Code 287.
9. Kidnapping, in violation of Penal Code 207.
10. Kidnapping, in violation of Penal Code 208 (kidnapping to commit specified sex offenses).
11. Kidnapping, in violation of Penal Code 209 (kidnapping with the intent to commit a specified sexual offense).
12. Aggravated sexual assault of a child, in violation of Penal Code 269.
13. An offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision.²

Thus, a habitual sexual offender, under California law, is any person that is convicted of any of the above crimes, or a combination of the above crimes, twice or more.

2. What are the best defenses to PC 667.71?

A person accused under Penal Code 667.71 can challenge the accusation by raising a legal defense. A good defense can often persuade a district attorney to reduce or even dismiss a charge. Please note, though, that it is critical for an accused to hire an attorney to get the best defense.

Three common defenses to accusations under PC 667.71 are:

1. No probable cause;
2. Coerced confession; and/or,
3. Police arrested the wrong person.

2.1. No Probable Cause

This line of defense tries to exclude evidence that is being used against a defendant for a PC 667.71 crime.

California law says that a police officer must have probable cause to detain or arrest a suspect. “Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

If a person was stopped or arrested without probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

2.2. Coerced Confession

This defense applies to the situation where a defendant was charged under PC 667.71 following a confession.

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

1. The judge may exclude the confession from evidence; or,
2. The case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

2.3. Police Arrested the Wrong Person

People sometimes make false accusations. Further, it is not always easy to find an eyewitness to corroborate that a defendant committed a crime. This can lead to wrongful arrests and misidentifications of offenders. Suppose a prosecutor cannot prove beyond a reasonable doubt that the defendant is the person who committed a particular sex crime. In that case, it is difficult to prove that he is a habitual sexual offender.

3. What is the sentencing?

A habitual sexual offender is guilty of a felony. The crime is punishable by imprisonment in the state prison for 25 years to life.³ Probation is generally prohibited.⁴

A conviction of PC 667.71 also requires lifetime registration as a sex offender with a local law enforcement agency.

4. Related Offenses

There are three crimes related to charges involving habitual sexual offenders. These are:

1. Rape – PC 261;
2. Spousal rape – PC 262; and,
3. Lewd acts with a minor child – PC 288

4.1. Rape – PC 261

California Penal Code 261 defines the crime of “rape” as nonconsensual sexual intercourse accomplished by means of:

1. Threats, force, or fraud; or,
2. With a victim who is unconscious or incapable of consenting.⁵

Rape under California law is a felony. The crime is punishable by imprisonment in state prison for three, six, or eight years.⁶

The maximum prison sentence goes up if the alleged victim is a minor. If she (or he) is a minor under 18, the possible state prison term goes up to seven, nine, or eleven years.⁷

And if she (or he) is a minor under the age of 14, the possible term is nine, eleven, or thirteen years in prison.⁸

4.2. Spousal Rape – 262

Under California Penal Code 262, spousal rape, also known as marital rape, takes place when a man or woman engages in an act of sexual intercourse with his/her spouse, without the spouse’s consent.⁹

“Without the spouse’s consent” means that one of the following things is true:

1. The intercourse is accomplished against the spouse’s will, using either force, violence, duress, menace, or fear of bodily injury; or,
2. The spouse is unable to resist due to drugs, alcohol, medication, or any other intoxicating substance…and the defendant knows or reasonably should know this.¹⁰

The punishment for spousal rape in California is the same as the punishment for rape of a stranger. Potential penalties include imprisonment in the state prison for three, six, or eight years.¹¹

4.3. Lewd Acts with a Minor Child – 288

California Penal Code 288 is the State’s law against “lewd acts with a minor child.” The section defines a “lewd act” as either:

• Touching a child for sexual purposes; or,
• Causing a child to touch him/herself or someone else for a sexual purpose.¹²

Technically, this section applies when the victim is anyone under the age of 16.¹³ But, because most prosecutions under this section involve children under 14, this crime is often referred to as:

• Lewd acts with a child under 14,
• Lewd acts on a minor under 14, or
• Acts of lewd and lascivious conduct.

The penalties for lewd acts with a minor are quite substantial and may include years in prison and several thousands of dollars in fines.

The specific penalties imposed will depend on a combination of factors, including:

• 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,
• If the child is 14 or 15, the age of the defendant.

A conviction under Penal Code 288 also requires the defendant to register as a California sex offender.

Additional Reading:

See our related sex crimes articles on

• sex offender registry/sex offender registration requirements for registered sex offenders,
• pimping,
• lewd conduct in public,
• forced oral copulation,
• child pornography,
• indecent exposure,
• sexual battery (touching the intimate parts of another person, against the person’s will, for the purposes of sexual gratification, arousal, or abuse),
• forcible sexual penetration with a foreign object,
• sodomy,
• Megan’s Law,
• expunging criminal records, and
• getting a certificate of rehabilitation.

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