Sex Offender Registration
Category > Sex Offender Registration
Updated 9/12/2023Evidence did not support the denial of the petition to terminate sex offender registration since evidence that the original crime was egregious does not establish present dangerousness.Defendant filed a petition seeking to terminate his sex offender registration requirement under the new law described in SB 384. The trial court erred in denying his petition based on the gravity of the original crime committed 23 years earlier. The circumstances of that offense did not establish present dangerousness that the prosecution must prove in order to seek continued registration.id: 27847
The provision requiring mandatory sex offender registration for those who engage in oral copulation with 16 or 17 year-olds violated equal protection since people who engage in intercourse with same-aged minors are subject to discretionary registration. The mandatory lifetime sex offender registration for those who engage in unlawful voluntary oral copulation with a minor who is 16 or 17 years old (Penal Code section 288(a)(1) violates equal protection principles because those who engage in unlawful voluntary intercourse with a same-aged minor (Penal Code section 261.5) are subject to discretionary sex offender registration. The matter was remanded with directions to remove the mandatory registration requirement and determine whether defendant was subject to discretionary registration under section 290, subd.(a)(2)(e).id: 18941
Defendant convicted in 1987 of oral copulation by someone over 21 with someone under 16 was given relief under Hofsheier in a matter the court treated as an action for declaratory relief. Defendant pled no contest in 1987 to oral copulation by a person over the age of 21 with a person under 16. Following his release from prison he was subject to mandatory sex offender registration. He moved for relief under People v. Hofsheier (2006) 37 Cal.4th 1185. Treating the issue as an action for declaratory relief against the Department of Justice, the court found that mandatory sex offender registration violated defendant’s equal protection rights since the defendant was similarly situated to others who had committed like offenses but not subjected to mandatory registration. id: 21440
The residency restrictions of Prop 83 (Jessica’s Law) preventing registered sex offender parolees from living near schools and parks, violates the parolee’s liberty and privacy interests. The residency restrictions of Proposition 83, preventing paroled registered sex offenders from living within 2000 feet of a school or park where children regularly gather, is unconstitutional. Blanket enforcement of the restrictions has severely limited their ability to find housing and restricted their access to medical treatment, substance abuse services and psychological counseling. It thus has infringed their liberty and privacy interests. However, there is statutory authority outside of Prop 83 that allows for special restrictions on registered sex offenders based on the particularized circumstances of each parolee.id: 24012
Mandatory sex offender registration for minors found to have annoyed or molested a child and committed to the DJJ violates equal protection. Mandatory sex offender registration for a juvenile who is both adjudicated of violating Penal Code section 647.6, and committed to the Division of Juvenile Justice, but not for a juvenile who is only adjudicated of violating section 647.6, violates the equal protection clauses of the state and federal constitutions.id: 23970
Statutory scheme regulating the conduct of registered sex offenders preempted the local ordinance restricting sex offenders access to city parks.Defendant was charged with violating a local ordinance that prohibits registered sex offenders from entering city parks without written permission from the city’s police chief. However, the state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting parks and rec centers. State law also preempts the ordinance’s requirement that sex offenders obtain written permission from the police chief before entering a park because this regulation is a de facto registration requirement. id: 23459
The denial of defendant’s petition for a certificate of rehabilitation and relief from sex offender registration violated his right to equal protection under People v. Hofsheier. People convicted of violating Penal Code section 288.7 (prohibiting sex with a child under 10 years old) are eligible to obtain a certificate of rehabilitation under section 4852.01 and relief from registration under section 290.5, while others (like defendant) convicted of violating section 288, subd.(a) (lewd acts with a child under 14) are not. There is no rational basis for the unequal treatment of these similarly situated groups of sex offenders. Sections 4852.01 and 290.5, subd.(a)(2) violate equal protection to the extent they exclude people convicted of violating section 288, subd.(a) from obtaining a certificate of rehabilitation and relief from the section 290 registration requirement.id: 23385
The blanket restriction prohibiting registered sex offenders from living within 2000 feet of a school or park is unconstitutional as a parole condition for sex offenders in San Diego County.Penal Code section 3003.5, subd.(b), enacted as part of “Jessica’s Law” in 2006, made it illegal for registered sex offenders to live within 2000 feet of any public or private school, or park where children regularly gather. However, the blanket residency restriction is unconstitutional as a parole condition as applied to registered sex offenders on parole in San Diego County because it exceeds the scope of its objective of protecting children and eliminates nearly all existing affordable housing in the county.id: 22892
The trial court prejudicially erred in failing to instruct that to convict defendant of failing to register as a sex offender the prosecution had to prove his prior spousal rape conviction involved force or violence.Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(b). However, the trial court erred by failing to instruct the jury that the prosecution had to prove defendant’s prior spousal rape conviction involved force or violence. The error was not forfeited for lack of a defense objection because the instructional error involved a substantial right and the error was not invited as there was no evidence of a tactical choice not to object by defense counsel. The error was prejudicial under the Chapman test where the prosecution failed to prove beyond a reasonable doubt that the instructional error omitting an element of the charged crime did not contribute to the verdict.id: 23287
The trial court improperly modified the terms of defendant’s probation to include the new provisions of section 1203.067.The trial court erred by modifying defendant’s probation pursuant to the amended Penal Code section 1203.067, which sets forth various new probation conditions for registered sex offenders. Because the presumption of prospectivity of Penal Code statutes mandated by section 3, cannot be rebutted, the provisions of section 1203.067 cannot be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment.id: 23371
Provision denying automatic sex offender relief conveyed by a certificate of rehabilitation to those convicted of oral copulation with a minor violated equal protection under Hofsheier. Penal Code section 290.5, subd.(a)(2)(N) denies the automatic sex offender registration relief conveyed by a certificate of rehabilitation to persons convicted of unlawful oral copulation with a minor under section 288a, subd.(b)(1), although such relief is available to those convicted of unlawful sexual intercourse with a minor under section 261.5. It therefore results in the denial of equal protection under People v. Hofsheier (2006) 37 Cal.4th 1185.id: 22921
The trial court erred by ordering sex offender registration for a crime that does not require it, after defendant violated his probation. Defendant pled guilty to child endangerment which does not require sex offender registration. The court imposed sentence, suspended execution and placed defendant on probation warning him that if he violated, the court would order sex offender registration. This procedure was improper because the court erred by failing to decide at the time it imposed sentence whether defendant would have to register. If it wanted to use the possibility of registration as a basis for encouraging compliance with probation terms it should have suspended imposition of sentence and placed defendant on probation, leaving any decision to impose registration to the time the court sentenced the defendant.id: 22675
The evidence did not show that defendant knew his travel trailer became a residence for purposes of the sex offender registration requirements when he parked in front of his brother’s residence.The evidence was insufficient to establish a willful violation of the sex offender registration statute because there was no evidence defendant knew that parking and living in his travel trailer in front of his brother’s duplex, required him to register at a residence rather than as a transient.id: 22766
Defendant was entitled to specific performance of the 1997 plea bargain, where he was told he would get 1203.4 relief and relief from sex offender registration if he completed probation and remained crime free for 10 years. In 1997, defendant pled guilty to one count of continuous sexual abuse of a child under Penal Code section 288.5. He was granted probation with a one-year jail sentence and various other conditions including sex offender registration. As part of his plea bargain, he was promised that if he successfully completed his probation and remained crime free for 10 years his sex offender registration obligation would be terminated, he could withdraw his plea and have charges dismissed under Penal Code section 1203.4, and he could obtain a certificate of rehabilitation under section 4852.01. After his plea the law was changed to prohibit this relief for anyone convicted under section 288.5. However, defendant was entitled to the relief under sections 1203.4, 4852.01, and 290.5 because the relief was a material term of the plea bargain and defendant relied on that relief when pleading guilty.id: 22500
Mandatory sex offender registration for an inmate who has oral copulation with a consenting adult violates equal protection under Hofsheier since there is no mandatory registration for a prison guard who has oral copulation with an inmate. Defendant pled guilty to an act of oral copulation by a prison inmate with a consenting adult under Penal Code section 288a, subd.(e). This violation required mandatory sex offender registration. But a prison guard who commits an act of oral copulation with a consenting adult who is a prison inmate (section 288.6, subd.(a)(2) is not subject to mandatory registration. The distinction here violated equal protection principles under Hofsheier.id: 22471
The trial court prejudicially erred in failing to instruct that because he was a transient in the city of Los Angeles, the prosecution had to prove he failed to register as a sex offender with the LAPD.Defendant was convicted of failing to register as a transient within five days of becoming a transient (Penal Code section 290.011, subd.(b)). However, the trial court erred by failing to instruct the jury that in order to find defendant guilty, it had to find that he failed to register as a transient with any agency other than the LA County Sheriff. The jury was not instructed to determine whether defendant failed to register as a transient with the LAPD if it determined he became a transient in the city of Los Angeles. id: 22000
There was no evidence that defendant failed to register a new address for purposes of section 290, subd.(b) where he was living in a shelter and no evidence of when he moved in. The evidence was insufficient to support defendant’s conviction for failing to register his new address within five days of when he changed addresses (Penal Code section 290, subd.(b)), where the only evidence of a new address was a shelter in downtown Los Angeles and there was no evidence of when he moved into the shelter.id: 21999
Juvenile was entitled to a jury trial on the Jessica’s Law residency restrictions because they were so overwhelmingly punitive. The lifetime residency restrictions the minor faces (under Jessica’s Law) as a result of his juvenile adjudication are punitive in nature. As a result the state must provide the minor a jury trial before imposing that consequence. The denial of the right to a jury trial violated due process and equal protection principles and the residency restriction was enjoined absent a jury trial on remand. id: 21943
The residency restriction imposed by Jessica’s Law constitutes punishment for Apprendi v. New Jersey purposes.Imposing Jessica’s Law’s residency restrictions through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum for Apprendi purposes. Therefore, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt.id: 21810
Defendant did not unlawfully fail to register as a sex offender because the least adjudicated elements of her Kentucky offense did not amount to a registerable offense in California.An out-of-state conviction requires a defendant to register as a sex offender in California only when the least adjudicated elements of the offense satisfy all of the elements of a crime enumerated in subdivision (c) of Penal Code section 290 or when the foreign jurisdiction required the defendant to register as a sex offender. Here, the least adjudicated elements of the defendant’s Kentucky conviction for facilitating sodomy do not satisfy those of any offense for which sex offender registration is required. Consequently, defendant did not unlawfully fail to register as a sex offender, and her guilty plea was vacated.id: 21649
The trial court erred by failing to instruct the jury that the prosecution had to prove defendant actually knew he was required to register the particular address involved. Defendant was convicted of failing to register as a sex offender in violation of Penal Code section 290, subd.(a)(1)(B). The trial court erred by failing to instruct the jury that a defendant need have actual knowledge of the requirement to register the particular address involved. However, the error was harmless where the evidence shows the jury could only have inferred that defendant was aware that he was living at the Fredrick Street address and the jury could not have rationally found defendant’s knowledge of his duty to register that address was unproven.id: 21100
The trial court erred under Hofsheier, in finding that defendant’s conviction of sodomy of a 17 year-old subjected him to mandatory registration as a sex offender.Defendant was convicted of unlawful sexual intercourse and sodomy with a 17 year-old minor. The court found the sodomy conviction subjected him to mandatory registration as a sex offender under Penal Code section 290. That ruling violated his equal protection rights as provided in People v. Hofsheier (2006) 37 Cal.4th 1185. The matter was remanded for a determination of whether he was subject to discretionary registration, and if so, to allow the trial court to exercise its discretion.id: 21107
Denial of request for termination of sex offender registration for defendant convicted of oral copulation with a person under 16 violated equal protection under Hofsheier.Defendant was convicted in 1979 of oral copulation of a person under 16 in violation of Penal Code section 288a, subd.(b)(2). The trial court erred in denying defendant’s motion to terminate his sex offender registration obligation following People v. Hofsheier (2006) 37 Cal.4th 1185, which found an equal protection violation for mandatory registration following the violation of a similar provision (oral copulation with a 16 or 17 year old) despite the fact that unlawful intercourse with a minor would not require mandatory registration. id: 21080
Sex offender registration convictions were reversed due to the lack of proof that defendant moved to an address in California.The evidence did not support defendant’s convictions for failing to register as a sex offender within five days of changing his address under former Penal Code section 290, subd.(a)(1)(A) or failing to complete his annual registration within five days of his birthday under section 290, subd.(a)(1)(D) because those provisions require proof that defendant moved to an address in California.id: 21081
Mandatory lifetime sex offender registration for someone convicted of penetrating a 13 year-old under section 289, subd. (h) violates equal protection under Hofsheier.Defendant pled guilty to one count of sexually penetrating a minor in violation of Penal Code section 289, subd.(h). The California Supreme Court’s holding in People v. Hofsheier (2006) 37 Cal.4th 1185, that subjecting an offender convicted of voluntary oral copulation with a 16 year-old minor to mandatory lifetime sex offender registration violates equal protection applies equally to an offender convicted of voluntary sexual penetration of a 13 year-old minor. The judgment was reversed and the trial court directed to exercise its discretion to determine whether defendant should be required to register as a sex offender.id: 20968
Court erred in failing to instruct the defendant must have actual knowledge of the duty to register as a sex offender.Defendant was convicted of willfully violating the notification provisions of the state sex offender registration law under Penal Code section 290. However, the trial court erred by failing to instruct that a conviction required actual knowledge of the duty to register. The error was prejudicial because, under the instruction and evidence presented at trial, the jury could not have found defendant actually knew of the requirement of registering multiple residences.id: 17107
Provisions of the sex offender registration statute governing changes of "locations" for transients are unconstitutionally vague.Penal Code section 290 does not give transient sex offenders fair notice of what they must do to conform with the registration requirements governing changes of "location." Transient offenders can only guess at what is meant by the requirement that they register at every "location" they regularly occupy in a single jurisdiction. (Penal Code section 290, subd.(a)(1)(B).) The lack of guidelines encourages arbitrary enforcement. The provisions governing changes of "location" and registration at multiple "locations" within a jurisdiction are unconstitutionally vague.
id: 17585
A defendant may not be separately punished under section 290 for failure to notify the county he left and the county to which he moved.When a person required to register as a sex offender changes residence within California, he must notify the local authorities in both his former and new residences (Penal Code section 290, subds. (a)(1)(AP and (f)(1). A person who moves counties without notifying either county may not be separately punished for the two failures to notify. Moreover, although he may be charged with both offenses in either county where he prosecutor knows or should know of both offenses, he may be prosecuted for them only once.
id: 17834
Juvenile ward cannot be required to register as a sex offender unless he or she has been committed to the Youth Authority.Appellant was charged in a petition under Welfare and Institutions Code section 602 with performing a lewd and lascivious act upon a child under the age of 14. He admitted the allegations and was adjudged a ward of the court. The court ordered him, among other things, to register as a sex offender under Penal Code section 290. However, under section 290, a juvenile ward must register as a sex offender only if he or she has been committed to the Youth Authority. Since he was never committed, it was error to require him to register.id: 9967
Court prejudicially erred by instructing that defendant could be convicted of failing to register under section 290 even if he did not know the place he often stayed was considered a second residence.Defendant was convicted of failing to register as a sex offender under Penal Code section 290.1. He duly registered his residence address in San Francisco but did not register as a second residence the home of a friend in San Mateo where he often stayed while doing construction work at the home. The trial court erred in instructing the jury that defendant willfully failed to register there even if he did not believe he acquired a second residence and was required to register in San Mateo. Moreover, supplemental instructions in response to the jury's questions told the jury specifically and incorrectly, that it was not necessary for defendant to have believed he established a second residence in San Mateo.id: 17397
The trial court's error in giving the general intent instruction was harmless as the other instructions informed the jury that defendant needed to have actual knowledge of his duty to register as a sex offender.Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). He argued the court erroneously modified CALJIC No. 1.20 by adding the language "and failed to do so" at the end of the instruction, such that the instruction negated the "willfulness" element. However, the instruction defined willfulness and told the jury it must find defendant had actual knowledge of the duty to register and failed to do so. While the court erred by giving CALJIC No. 3.30, the general intent instruction, the error was harmless as the instructions as a whole informed the jury the defendant need have actual knowledge of the duty to register.id: 18328
Trial court erred in failing to instruct that a violation of section 290, subd.(f)(1) requires knowledge of the requirement to advise the last registering agency of a move outside the jurisdiction.Defendant was convicted of failing to inform the LAPD that he was leaving Los Angeles pursuant to Penal Code section 290, subd.(f)(1). However, the trial court committed reversible error in failing to instruct the jury a willful failure to advise the last registering agency of a move outside the jurisdiction requires a finding the defendant had actual knowledge of the reporting requirement.id: 17018
Defendant could not be convicted of failing to inform the LAPD that he left Los Angeles, because he never originally registered in LA as required by section 290, subd.(f)(1).The evidence was insufficient to support defendant's conviction under Penal Code section 290, subd.(f)(1) for failing to inform the LAPD when he left Los Angeles. The provision requires such notice to the last agency with which he registered. Since he had not registered in Los Angeles, even though required to do so, he could not be convicted under that provision.id: 17017
Failure to charge defendant with the precise sex offender registration theory presented by the prosecution was harmless.Penal Code section 290, subd.(g)(2), applies to any person who willfully violates any requirement of section 290. Defendant was
convicted of violating this provision based upon his failure to register a new address. Defendant argued the state proved a violation of section 290, subd.(a)(1)(A), rather than the charged offense. However, any error in charging the offense was harmless where the prosecutor elected to proceed on the section 290(a)(1)(A) theory, instructed on that violation, and defendant never claimed the information failed to adequately notify him of the charge against him or that the variance affected his defense.id: 19005
Penal Code section 290 requires a showing that defendant knew about the registration requirement, and the court erred in failing to so instruct.Defendant was convicted of willfully failing to register as a sex offender under Penal Code section 290. However, the instructions on willfulness should have required proof that the defendant actually knew of his duty to register. The error was compounded by the court's instruction that "ignorance of the law is no excuse." However, the error was harmless in light of the jury's finding that defendant read the form that specified his duty to register. Moreover, as long as the evidence shows he knowingly and willfully failed to register, the failure of the authorities to comply with other technical requirements does not require a reversal.id: 14908
Under Hofsheier, the minor found to have violated section 288a, subd.(b)(1) was relieved of the sex offender registration requirement. The minor admitted an allegation of non-forcible oral copulation with a person under age 18 in violation of Penal Code section 288a, subd.(b)(1). The juvenile court erred by denying his motion to be relieved of the sex offender registration requirement. Pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185, mandatory registration would deny him equal protection since there is no similar requirement for those convicted of unlawful intercourse with a minor in violation of section 261.5.id: 20772
The sex offender registration requirement imposed 20 years ago violated equal protection under Hofsheier and was set aside.In 1987, defendant was convicted of oral copulation with a minor in violation of Penal Code section 288a, subd.(b)(1). The court ordered sex offender registration under section 290. However, mandatory sex offender registration violated defendant’s equal protection rights as stated in People v. Hofsheier (2006) 37 Cal.4th 1185. The Superior Court had the authority to hear the motion 20 years later. Neither defendant’s 1987 conviction nor his subsequent history supported an order requiring him to register as a sex offender. The order was set aside.id: 20710
Because the Jessica’s Law residency requirement imposes a penalty beyond the statutory maximum, it triggers the right to a jury trial under Apprendi.Defendant was acquitted of the only charged sex offense and convicted only of misdemeanor assault. Nevertheless, the trial court, subjected defendant to the residency requirement of Jessica’s Law by requiring sex offender registration based on its own fact-finding. Because the residency requirement increases the penalty for the underlying offense beyond the statutory maximum, the facts supporting sex offender registration must be found beyond a reasonable doubt by a jury under Apprendi v. New Jersey (2000) 530 U.S. 466.id: 20659
A juvenile may not be ordered to register as a sex offender if his offense was not listed under section 290, subd.(d)(3).A juvenile offender may not be ordered to register as a sex offender under Penal Code section 290 if his offenses are not among those listed in subdivision (d)(3). Since sexual battery under Penal Code section 243.4 is not among the listed offenses, the minor's commission of the offense did not require sex offender registration.id: 19189
Mandatory sex offender registration for a violation of section 288a, subd.(b)(1) violates equal protection under Hofsheier.Defendant pled no contest to a charge of oral copulation with a person under age 16 in violation of Penal Code section 288a,subd.(b)(2). The order requiring that he register as a sex offender under section 290 was reversed as violation of equal protection principles following People v. Hofsheier (2006) 37 Ca.4th 1185, because a violation of the similar offense of oral copulation of a person between 16 and 18 years of age (section 288a,subd.(b)(1) provides for discretionary registration.id: 20563
A defendant appealing from the denial of a postplea motion to terminate his mandatory sex offender registration requirement was not required to obtain a certificate of probable cause.Defendant argued the trial court erred in denying his motion to terminate his mandatory sex offender registration requirement. The Attorney General argued the issue was not cognizable on appeal absent a certificate of probable cause. However, because the postplea motion appealed from did not challenge the validity of the plea, a certificate of probable cause was not required. id: 20562
The evidence was insufficient to show defendant entered LA without registering as a sex offender for five days since it did not show he was there for five days prior to his arrest. Defendant was convicted of willfully failing to register as a sex offender within five working days of entering Los Angeles pursuant to Penal Code section 290, subd.(d)(1)(A). However, there was no evidence presented showing defendant had been in Los Angeles for five days prior to his arrest. While he might have been subject to prosecution under the transient status provision described in section 290, subd.(a)(1)(C), there was no reference to that provision in the information, jury instructions or verdict.id: 19359
Defendant did not violate section 290, subd.(a)(2)(E) by failing to register where he was not specifically ordered to register pursuant to that provision.Defendant was convicted of violating Penal Code section 290, subd. (a)(2)(E) by failing to register a change of address during a probationary term on a prior offense. However, he was never ordered to register under that provision as the trial court specifically limited the registration requirement to the five year period during which defendant was on probation for the earlier offense. Since he was not ordered to register pursuant to section 290, subd. (a)(2)(E) he did not violate section 290 by
failing to register.id: 19683
The trial court lacked jurisdiction to find a minor who committed a sex act in Texas later failed to register as a sex offender in California.Petitioner was adjudicated by a Texas juvenile court to have committed a sex act that would require him to register as a sex offender in California where he lived with his mother. However, the California trial court later acted in excess of its jurisdiction when it imposed judgment on petitioner for failing to register because Penal Code section 290 did not require that he register.id: 20072
25 years-to-life term for failing to update defendant's section 290 information after his birthday was cruel and unusual punishment under the state and federal constitutions.Defendant pled guilty to failing to update his sex offender registration within five working days of his birthday under Penal Code section 290, subd.(a)(1)(C). The trial court sentenced him under the three strikes law to a term of 25 years-to-life. However, the court found if the cruel and unusual punishment provisions are to have a meaningful application, they must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.id: 18460
Court erred in failing to instruct that, under section 290, subd.(g)(2), defendant must have known he was required to register a second address. Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). However, there was no instruction that the jury could not convict unless defendant actually knew of the registration requirement and, since during the applicable time period, former section 290 did not address the issue of multiple residences, there was no instruction that there must be evidence defendant actually knew he was required to register a second address. The error was not harmless where there was no evidence defendant knew he was required to register an additional address. id: 17430
A trial court must advise a defendant as a direct consequence of a plea that sex offender registration under section 290 is a lifelong obligation. Defendant's guilty plea was not knowing and intelligent where he was not advised that the Penal Code section 290 sex offender registration was a lifetime requirement. The trial court abused its discretion by denying defendant's motion to withdraw the plea.id: 19469
The trial court erred by informing the jury a section 290 registrant has an obligation to see that his change of address notice was received by the police.Defendant was convicted of failure to register as a sex offender under Penal Code section 290, subd.(g), because he failed to inform the police of a change of address within five working days as required by section 290. subd.(f)(1). He argued that he mailed the required notice, but the police did not receive it. The trial court erred by instructing the jury that a registrant who mails a change of address notice within the statutory five-day period nevertheless violates section 290 if the police do not actually receive the notice.id: 17799
Prior to 1998 amendment, the registration requirement in section 290 was ambiguous as it related to sex offenders who moved out of California.Penal Code section 290 requires annual registration for certain sex offenders while they live in California. A 1998 amendment to section 290, adding subdivision (f)(1), specifically requires offenders to give change-of-address notification on leaving the state. Prior to the amendment the law was ambiguous as applied to departing residents. The court reversed the conviction of a defendant who failed to register after moving to Texas in 1995.id: 15382
Trial court abused its discretion in denying the Romero motion where the current offense was a technical violation of the sex offender registration statute and there was no evidence that he intended to escape the reach of law enforcement.Defendant was convicted of failing to update his sex offender registration pursuant to Penal Code section 290, subd.(a)(1)(D). The trial court abused its discretion by denying the motion to strike one or more of his strike priors. His current offense was a "technical" violation of section 290, and the purpose of the statute was not undermined by his failure to update his address. Moreover, his misrepresentations on a job training application provided no grounds to infer that he intended to obfuscate his residence. Finally, none of the California Rules of Court factors in aggravation applied, whereas several mitigating factors did apply. On this record, defendant fell outside the three strikes scheme.id: 14820
Trial court must instruct a violation of the sex offender registrant statute only occurs where the defendant knows of the duty to act.Defendant was convicted of failing to register an address change in violation of Penal Code section 290, subd. (f). The trial court erred in failing to instruct that he could be convicted only if he knew of the duty to report a change of address. However, the error was harmless where the evidence showed defendant was properly notified in 1987 and 1990 that he was required both to register and inform authorities of an address change.id: 16598
Court erred in ordering appellant to register as a sex offender after a conviction of assault with intent to commit oral copulation.Appellant pled guilty to assault with intent to commit oral copulation pursuant to Penal Code Section 220 and as a consequence of the plea he was required to register as a sex offender. Section 290 requires registration of persons convicted of various sex offenses, including assault with intent to commit rape or sodomy under section 220. The statute does not require registration for assault with intent to commit coral copulation under section 220 but does so for conviction of felony oral copulation or attempted oral copulation. The superior court exceeded its jurisdiction in ordering appellant to register as a sex offender.id: 9939
Updated 10/18/2023Reduction of a felony sex offense to a misdemeanor under section 17(b) did not entitle defendant to relief under the amendments to section 290.Defendant argued that because the trial court reduced his felony violation of Penal Code section 288.2 to a misdemeanor under section 17(b)(3), he was entitled to relief from the sex offender registration requirements under the amendments to section 290 that became effective on Jan. 1, 2021. However, section 17(e) bars courts from granting such relief when the defendant was convicted of an offense for which lifetime registration was required. The amendments to section 290 do not reflect a legislative intent to create an exception to this rule.id: 28079
Updated 6/19/2023The juvenile court did not err in interpreting section 290.008 in a way that did not require sex offender registration for a minor discharged from a county-administered facility.The juvenile court did not err in failing to impose mandatory sex offender registration on the minor. If the Legislative had meant for mandatory sex offender registration to apply to in-state juveniles discharged on parole from county-administered facilities created by SB 823, it could have amended Penal Code section 290.008(a) to reference such facilities or by broadening the language to include them as equivalent facilities.id: 27580
The trial court did not have the option of ordering sex offender registration for a limited time as a probation condition as an option to lifetime registration.Defendant took “up skirt” videos of women in public places and had a camera installed in womens’ bathrooms. He pled guilty to certain misdemeanor offenses and admitted under Penal Code section 290.006 that the offenses had been committed as a result of sexual compulsion or for sexual gratification. He argued the trial court had the authority to impose sex offender registration as a probation condition for a limited period of time. However, the court was required to order lifetime registration.id: 25842
Provision forbidding defendant from living close to a school or park could not be used as a probation condition. The trial court improperly imposed Penal Code section 3003.5, subd.(b) and its residency restrictions (forbidding defendant from residing within 2000 feet of a school, park, or place where children gather) because that provision only applies to registered sex offenders who are on parole. It could not properly be used as a probation condition.id: 24858
A sex offender who has obtained section 1203.4 relief remains subject to the Internet reporting provisions under Megan’s Law.A sex offender who has obtained Penal Code section 1203.4 relief after successfully completing probation remains subject to the Internet probation provisions contained in section 290.46.id: 21082
The requirement that a defendant be notified of his duty to reregister as a sex offender each time he is released from jail is directory not mandatory and does not provide a defense to the charge of failing to reregister.Defendant was released from jail in April 2014 after serving a two month term. Although he had previously been informed of his obligation to reregister as a sex offender he was not again informed of that duty upon his April 2014 release. He was later convicted of failing to reregister and was committed to state prison. Penal Code section 290.017 requires that a defendant be notified of his duty to register every time he is released from jail. However the requirement is directory rather than mandatory and therefore did not provide a defense to the charge.id: 24252
A stepgrandparent, unlike a grandparent, is ineligible for exclusion from the Megan’s Law Internet website.Defendant was convicted of committing a lewd act on his stepgranddaughter. A grandparent convicted of sex offenses may be excluded from the California Department of Justice website under certain circumstances pursuant to Penal Code section 290.46, subd.(e)(2)(D)(i). However, because defendant was a stepgrandparent instead of a grandparent, he was not eligible for exclusion. id: 24105
Apprendi did not require that a jury determine the facts supporting the discretionary registration order and residency restrictions under Prop 83. Apprendi v. New Jersey (2000) 530 U.S. 466, held the Sixth Amendment requires a jury finding for any fact that increases a penalty for a crime beyond the statutory maximum. A trial judge does not violate Apprendi by making findings underlying a discretionary order that a defendant must register as a sex offender insofar as the order includes residency restrictions imposed by Proposition 83 (Jessica’s Law). Sentencing choices such as residency restrictions were not historically entrusted to juries, they do not constitute a penalty for Apprendi purposes, and even if they did require jury findings, a nonpunitive registration order would still survive.id: 24013
Sex offender registration for a juvenile found to have annoyed or molested a child and sent to DJF after committing another offense but not for a juvenile who committed the offense and was not sent to DJF does not violate equal protection. Mandatory sex offender registration for a juvenile who is adjudicated of violating Penal Code section 647.6 (annoying or molesting a child) and is committed to the DJF only after committing another offense, but not for a juvenile who is found to have committed the offense and never committed to the DJF does not violate equal protection principles.id: 24031
Setting aside a conviction pursuant to section 1203.4a does not relieve the defendant’s responsibility to register as a sex offender. The trial court granted defendant’s petition to set aside his lewd act with children convictions, using the Penal Code section 1203.4a process. However, the vacation of the guilty pleas and dismissal of the complaint pursuant to section 1203.4a did not relieve him of the section 290 registration requirement. He can only obtain that relief by the means set forth in section 290.5.id: 23561
The National Guard Armory was a residence within the meaning of section 290.011.Defendant was convicted of being a transient sex offender who failed to register his current information as to where he eats and sleeps under Penal Code section 290.011. He argued the shelter he frequented, a National Guard Armory emergency shelter, was not a residence within the meaning of the statute. However, section 290.011 clearly states that a residence includes a homeless shelter that can be located by a street address. id: 23723
Mandatory sex offender registration for possessing and copying child pornography did not violate equal protection under Hofsheier. Defendant argued that mandatory sex offender registration for his convictions of possessing and duplicating child pornography (Penal Code sections 311.11 and 311.3) violated equal protection under Hofsheier, because registration is discretionary for more serious sex offenses. However, the Legislature could rationally conclude the offenses necessarily involve the exploitation of children such that offenders should be subject to mandatory registration.id: 23134
Three strike sentence was not cruel and unusual punishment for a defendant who failed to update his sex offender registration.A 25 years-to-life sentence under the three strikes law was not cruel and unusual punishment for a defendant whose current crime was the failure to update his sex offender registration within five working days of his birthday. This was not a technical oversight by a defendant who made a good faith effort to comply. Rather, defendant had never registered at his current address and showed he was intentionally unwilling to comply with the law.id: 22879
Mandatory sex offender registration for persons convicted of possessing child pornography but not persons convicted of statutory rape did not violate equal protection.Imposing a mandatory sex offender registration requirement on persons convicted of possession of child pornography but not on persons convicted of statutory rape does not violate equal protection principles under People v. Hofsheier.id: 22969
Mandatory sex offender registration for a violation of section 288, subd.(a) does not violate equal protection under Hofsheier but there may be a violation in provision prohibiting him from seeking a certificate of rehabilitation. In 1999, the 19 year-old defendant pled no contest to committing a lewd act on a minor (Penal Code section 288, subd.(a)) for engaging in consensual sex with his 13 year-old girlfriend. The equal protection analysis in People v. Hofsheier (2006) 37 Cal.4th 1185, could not be used to challenge a mandatory sex offender registration requirement for a violation of section 288, subd.(a). However, the court noted it was possible that the Penal Code provisions prohibiting defendant from applying for a certificate of rehabilitation and being relieved of the registration requirement may violation equal protection.id: 22651
Mandatory sex offender registration for misdemeanor child annoyance or molestation did not violate equal protection under Hofsheier.Defendant pled guilty to the misdemeanor of annoying and molesting a child under Penal Code section 647.6, subd.(a). Mandatory sex offender registration for a defendant convicted under that provision did not violate defendant’s equal protection rights under Hofsheier.id: 22589
Defendant sex offender, was properly convicted of both failing to provide authorities with a new address after a move, and failing to report his new move. Defendant, a sex offender subject to registration, argued he was improperly convicted of both failing to notify the responsible agency of his new address (section 290.13, subd.(b)) and failing to file a change of address (section 290.013, subd.(a)) because the offenses describe alternate theories for the same offense. However, the offenses have separate objectives and multiple convictions were proper. The sentence for one count was properly stayed under section 654.id: 22686
The sex offender registration requirement did not establish constructive custody for habeas purposes. The trial court granted defendant’s petition for writ of habeas corpus providing relief from the sex offender registration requirement where he had not been advised of the obligation prior to his guilty plea in 1997. However, the obligation to register as a sex offender does not constitute constructive custody for habeas corpus purposes. That defendant was recently charged with violating the registration obligation did not establish constructive custody because he was not in custody for the conviction he sought to attack.id: 22466
Defendant’s habeas petition seeking relief from his sex offender registration requirement was untimely where he filed it more than a decade after he learned of the obligation. Defendant pled guilty to sexual battery in 1997. He was facing three cases for failing to register as a sex offender beginning in 2008. In 2010, the trial court granted his petition for writ of habeas corpus based on the fact that he had not be advised of the need to register as a sex offender before his 1997 guilty plea. However, the judgment was reversed as defendant’s writ petition was not timely as he learned of his obligation to register in 1997 but did nothing about it.id: 22465
Mandatory sex offender registration for those who commit lewd acts on children under 14 does not violate equal protection under Hofsheier.Defendant was convicted of lewd conduct with a minor under the age of 14 in violation of Penal Code section 288, subd.(a). Contrary to his claim, mandatory sex offender registration did not violate his right to equal protection under Hofsheier because offenders convicted of offenses under section 288, subd.(a) are not similarly situation to persons convicted of other sex offenses for which sex offender registration is discretionary. Section 288, subd.(a) affords specific protection to minors under 14 and is a specific intent offense whereas sections 261.5, 288a(b)(1) and 299, subd.(h) are general intent offenses against minors under age 18.id: 22341
Mandatory sex offender registration for defendant convicted of sex acts on persons incapable of giving consent did not violation equal protection under Hofsheier.Defendant argued the order requiring him to register as a sex offender for sexual offenses against a person incapable of giving consent violated equal protection under Hofsheier. However, defendant was not similarly situated to others convicted of consensual sex offenses with minors who, due to their ages, were incapable of giving consent.id: 22451
Evidence supported the defendant’s conviction of failing to register as a transient because his initial registration with the county sheriff was proper. Defendant argued the evidence was insufficient to support his conviction of failure as a sex offender registrant with an address to file as a transient. (Penal Code section 290.011, subd.(b). He argued the conviction was improper because the address he initially registered was in the city of LA and he mistakenly registered with the county sheriff rather than the LAPD, and that he was therefore not registered under the statute. However, the sheriff’s department was authorized to accept registrations. Moreover, an LA county website showed the address defendant initially registered was, in fact, in an unincorporated area of the county. id: 22002
Even after a trial court reduces a felony to a misdemeanor, it lacks the authority to terminate the lifetime sex offender registration requirement. The trial court granted defendant’s motion under Penal Code section 17, subd.(b) to reduce his earlier conviction of distributing harmful matter to a minor over the Internet to a misdemeanor. However, the trial court then properly found that section 17, subd.(e) restricted its authority to terminate defendant’s lifetime sex offender registration requirement.id: 22167
The order staying enforcement of the residency restrictions for registered sex offenders on parole was appealable. The trial court stayed the enforcement of Penal Code section 3003.5 as to all registered sex offenders on active parole in Los Angeles County pending resolution of previously filed habeas corpus petitions. The court’s ruling was similar to a preliminary injunction and was thus appealable. id: 22182
Enforcing the residency restrictions for registered sex offenders in Los Angeles County does not have the same practical effect as banishment. The trial court stayed enforcement of Penal Code section 3003.5 (restricting where registered sex offenders on parole can reside) as to all registered sex offenders on active parole in Los Angeles County pending resolution of previously filed habeas corpus petitions. However, the court erred in concluding that enforcement led to the virtual banishment of those parolees from LA County because exclusion from a substantial portion of the county does not have the same practical effect on parolees as banishment.id: 22181
The term “residence” in the sex offender registration context did not have a technical meaning requiring additional instruction and was not vague. Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). He argued the term “residence” had a technical meaning under section 290 and the jurors should have been given a more detailed definition. However, the instruction adequately explained that registration was required for each location in which defendant regularly spent time. Moreover, the definition of “residence” in section 290.011(g) is not vague and provides offenders with notice of when they must register a dwelling as a residence. id: 21489
Claims that Jessica’s Law’s residency restrictions were unreasonable, vague and overbroad were remanded to the trial courts in counties where defendants were paroled to gather the necessary facts. “Jessica’s Law” which was introduced as part of Proposition 83, placed residency restrictions on various sex offenders upon parole. The law provided that people subject to sex offender registration could not live within 2000 feet of a school, park or area where children gather. Defendants argued the provision was a vague, overbroad and unreasonable parole condition. However, the defendants were paroled to different areas in the state and were not similarly situated. The cases were remanded to trial courts of the counties where the defendants are paroled to gather the facts necessary in those areas to resolve the claims.id: 21382
Jessica’s law is not improperly applied to defendants retroactively and did not violate ex post facto principles where the law became effective before defendants were released on parole.“Jessica’s Law” passed in 2006 as part of Proposition 83, placed restrictions on where sex offenders subject to lifetime registration could reside - they cannot live within 2000 feet of a school, park or where children gather. The Department of Corrections and Rehabilitation sought to enforce the law as a statutory parole condition serving notice on the subjects. Defendants were registered sex offenders convicted before the law was enacted but paroled after the effective date. There was no impermissible retroactive application of the law to defendants where each was released after the statute’s effective date. Moreover, the new law (Penal Code section 3003.5, subd.(b)) does not violate ex post facto provisions because it was not applied retroactively.id: 21381
The dismissal of defendant’s predicate offense after he was convicted of failing to register as a sex offender provided no ground for habeas relief. Defendant’s predicate sex offense in Massachusetts was vacated and will not be retried. He argued that because the offense is now void, he was never required to register as a sex offender in California and he is being unlawfully incarcerated for failing to register. However, the dismissal of defendant’s predicate offense after he was convicted of violating Penal Code section 290 is no defense to his registration conviction and provides no ground for granting habeas relief. id: 21673
Mandatory sex offender registration for the defendant convicted of attempted lewd acts on children and indecent exposure did not violate equal protection under Hofsheier.Defendant was convicted of attempted lewd acts on a child under 14 years old (Penal Code sections 664/288, subd.(a) and lewd exposure (section 314, subd.(1). He argued that mandatory sex offender registration violated equal protection principles under Hofsheier because he is similarly situated to those who commit unlawful intercourse with a minor (section 261.5). However, section 288, subd. (a) necessarily involves preying on young, vulnerable victims whereas section 261.5 can include victims over 14. Mandatory sex offender registration for this offense does not violate equal protection.id: 21714
There was no equal protection violation for defendant who was convicted of two misdemeanor sex offenses for the same conduct and one required sex offender registration. Defendant was convicted of one count of lewd conduct in violation of Penal Code section 647, subd.(a), and one count of indecent exposure in violation of section 314, subd.(l) based on the same conduct. The latter offense required lifetime sex offender registration. Defendant argued there was an equal protection violation since one but not both of the offenses required registration. However, there are meaningful differences in the offenses and defendant failed to show offenders charged with the two offenses are similarly situated. id: 21650
Mandatory lifetime sex offender registration for a person convicted of sexual penetration by a foreign object or an unconscious person did not violate equal protection under Hofsheier.Defendant was convicted of sexual penetration by a foreign object on an unconscious person under Penal Code section 289, subd.(d). He argued that mandatory sex offender registration for that offense violated equal protection principles under Hofsheier. However, defendant’s offense was not sufficiently similar to the offense in question in Hofsheier (nonforcible oral copulation of a minor) for equal protection purposes. And neither did the mandatory lifetime registration violate defendant’s substantive due process rights by infringing on his fundamental right to privacy. id: 21776
People seeking Hofsheier relief who are out of custody and whose appeals are final must file a petition for writ of mandate in the trial court.For convicted defendants who are no longer in custody and whose appeals are final, claims for Hofsheier relief (People v. Hofsheier (2006) 37 Cal.4th 1185) - relief from mandatory lifetime sex offender registration based on equal protection - must be brought by way of a petition for writ of mandate in the trial court.id: 21472
Evidence supported defendant’s conviction for failing to register as a sex offender where witnesses testified as to their belief that he was living part time at an unregistered address. Evidence supported defendant’s conviction for failing to register as a sex offender pursuant to Penal Code section 290, subd.(g)(2). Neighbors testified that it did not appear he was living at his registered home full time, and others testified they believed he was spending nights or living part time at the unregistered address. It did not matter that evidence supported contrary findings as well.id: 21488
Severe depression does not excuse the failure to register as a sex offender. The trial court did not err by preventing the defense psychologist from testifying that defendant was so depressed he could not register. Such a defense is not available for the crime. Therefore, the court also had no duty to instruct that severe depression was a defense.id: 21323
Mandatory sex offender registration for attempting to exhibit harmful matter to a minor by the Internet did not violate equal protection under Hofsheier.Defendant was convicted of attempting to exhibit harmful matter to a minor by the Internet. The trial court denied the motion to reduce the offense to a misdemeanor which resulted in mandatory sex offender registration. Contrary to defendant’s claim, mandating registration for this offense did not violate equal protection principles under Hofsheier because the defendant was not similarly situated with those convicted of unlawful intercourse with a minor, an offense where registration is not mandatory.id: 21320
Defendant convicted of lewd acts with 14-15 year olds was not similarly situated with a defendant convicted of oral copulation with 16-17 year olds as in Hofsheier.After defendant pled no contest to six counts of lewd acts with 14 or 15 year olds at least 10 years younger (Penal Code section 288(c)(1)) he argued successfully that the imposition of mandatory sex offender registration violated his equal protection rights as described in People v. Hofsheier (2006) 37 Cal.4th 1185. First, the matter is an appealable postjudgment order under Penal Code section 1238, subd.(a)(5). Next, there was no equal protection violation because defendant facing the present charges was not similarly situated with those convicted of oral copulation of a 16 or 17 year-old victim as in Hofsheier.id: 21106
The former sex offender registration provision requiring notification within five days of moving did not require proof that defendant had a new address.Evidence supported defendant’s conviction of failing to notify police of an address change within five days of moving under former Penal Code section 290, subd.(f)(1). Contrary to defendant’s claim, that provision did not require the prosecution to prove the defendant has established a new address.id: 21079
The 5-day requirement for 290 registration began the day defendant moved to Madeira, not the day he found a residence of his own.Defendant argued the evidence was insufficient to support his conviction for failing to register as a sex offender under Penal Code section 290, subd.(a)(1)(A), which requires that he register within 5 working days of moving. He argued the 5-day period did not begin to run until he established a new residence, and that did not happen during the few days he stayed with other people before he found a new address. However, the duty to register arose when he entered a new jurisdiction. id: 20836
There was no equal protection violation under Hofsheier where sex offender registration was mandatory for the commission of a lewd act on a 15 year-old by someone 10 years older. Defendant was convicted of committing a lewd act on a child of 14 or 15 years by a person at least 10 years older than that child, in violation of Penal Code section 288, subd.(c)(1). He argued that he was denied equal protection by being subjected to mandatory sex offender registration pursuant to section 290. He relied on People v. Hofsheier (2006) 37 Cal.4th 1185 which found mandatory registration was discretionary for someone convicted of intercourse with a minor. However, the present offense was distinguishable since the statute provides the victim be no older than 15 and the defendant be at least 10 years older. id: 20660
Evidence supported the conviction of failing to register as a sex offender where the address provided when registering was off by two digits.The evidence was sufficient to support defendant's conviction of failing to register as a sex offender under Penal Code section 290, subd.(g)(2), where defendant made a two digit error in the address when registering. Forgetting one's correct address while registering is not a defense to the charge. Defendant further argued the evidence was insufficient under the corpus delicti rule. However, the corpus delicti rule does not apply where the defendant's extrajudicial statements (false written entries on the registration form) constitute the crime.id: 18476
Amendments to sex offender registration requirements since 1987 do not constitute punishment and may be applied retroactively except for the residency and monitoring provisions of Jessica’s Law which is applied prospectively only.Since March 1987, the sex offender registration laws have been amended to enhance registration requirements, create a public notification and inquiry system, require DNA collection and sampling, and impose residency restrictions and GPS monitoring. Application of the first three categories of amendments to defendant who was convicted and ordered to register in 1987 do not violate ex post facto provisions because they do not constitute punishment. However, the fourth category – the Jessica’s Law requirements – applies prospectively only so defendant will not be subject to its residency and GPS monitoring provisions. id: 20609
The trial court lacked jurisdiction to address defendant’s motion to remove the sex offender registration requirement where the case has been final for years.Defendant’s conviction was affirmed on appeal and the remittitur issued in 1994. In 2006, he filed a motion in the trial court seeking relief from the sex offender registration requirement. However, the trial court lacked jurisdiction to address the motion in the long-final criminal case.id: 20515
Mandatory sex offender for oral copulation by an adult with 15 year old girl did not violate equal protection as in Hofsheier.Defendant pled guilty to violating Penal Code section 288a, subd.(b)(2) which prohibits a person over 21 years old from engaging in oral copulation with another person under 16. He argued the mandatory sex offender registration requirement under section 290 denied him equal protection as the court had found in People v. Hofsheier (2006) 37 Cal.4th 1185, because an act of intercourse rather than oral copulation would not to have led to mandatory registration. However, the defendant in Hofsheier committed a slightly different offense – oral copulation of a person under 18. Moreover, if defendant had engaged in sexual intercourse with the victim he would also have violated section 288,, subd.(c)(1) which required mandatory registration.id: 20362
Hofsheier applies to violation of section 288a, subd.(b)(2) as well as subdivision (b)(1).In People v. Hofsheier (2006) 37 Cal.4th 1185, the court found an equal protection violation where defendant convicted of oral copulation of a minor under Penal Code section 288a, subd.(b)(1) was subject to mandatory lifetime sex offender registration under section 290, subd.(a)(1) whereas a person convicted of unlawful intercourse with a minor under section 261.5 was subject to discretionary registration requirements. The Hofsheier holding also applies to violations of section 288a, subd.(b)(2) which involves a person over 21 convicted of oral copulation of a person under 16. Defendant was entitled to a hearing allowing the court to exercise discretion regarding registration and defendant may present evidence of his good behavior and rehabilitation.id: 20233
The trial court erroneously imposed $200 for a sex offender fine that required $300 so the matter was remanded to determine whether defendant had the ability to pay $300.Defendant was convicted of three counts that required imposition of sex offender fines under Penal Code section 290.3. The provision calls for a fine of $300 for the first conviction and $500 for each subsequent conviction. The trial court ordered one fine of $200. The sentence was unauthorized and therefore the prosecutor's failure to object did not forfeit the issue. The matter was remanded to allow the court to impose a $300 fine for the first conviction or determine defendant did not have the ability to pay. No fines were to be imposed for the other two convictions as the court impliedly found defendant did not have the ability to pay.id: 20211
The waiting period to reapply for a certificate of rehabilitation is calculated from the date the initial certificate was denied.Defendant pled guilty to a sex offense in 1989. In 2004, he sought a certificate of rehabilitation under Penal Code sections 4852.01 and 4852.06 which would have allowed a gubernatorial pardon and relief from the sex offender registration requirement. The request was denied. The waiting period to apply for another certificate commences, not 10 years from the date of the offense as defendant argued, but five years from the date the initial certificate of rehabilitation was denied.id: 19135
Defendant's multiple moves without notifying the police subjected him to three section 290 sex offender registration violations.Defendant argued that because his actions were part of a single course of conduct, he was improperly convicted of three counts of
failing to comply with sex offender registration requirements under Penal Code section 290. However, defendant moved from his Seventh Avenue hotel to a 41st street home, and then to New Mexico without informing the authorities. Each failure to register was a separate offense.id: 19826
The public notification requirements of sex offender registration do not constitute punishment for purposes of Blakely/Apprendi.Defendant argued the public notification requirement and residency restrictions imposed by the sex offender registration laws increased his punishment beyond the permissible range, and since the facts underlying the registration were not found by a jury, the punishment violated Blakely and Apprendi. However, the public notification requirements of sex offender registration do not constitute punishment for purposes of the Sixth Amendment.id: 19935
Trial court lacks discretion under section 290, subd.(g)(2) to declare the offense a misdemeanor.Penal Code section 290, subd.(g)(2) provides that failure by a sex offender registrant to notify authorities of an address change is a felony. Subdivision (g)(9) established the additional misdemeanor of providing false information on a registration form. The reference to subdivision (g)(9) in subdivision (g)(2) does not convert the latter into a statute that gives the court discretion to impose either felony or misdemeanor punishment for a registration violation.id: 19532
Trial court lacked authority to remove the sex offender registration requirement after revoking probation. Following a guilty plea, defendant was placed on probation and ordered to register as a sex offender. Probation was later revoked, and defendant was remanded to prison, but the court struck the previous order regarding the requirement under
Penal Code Section 290 to register as a sex offender. However, the court lacked authority to vacate the registration requirement.id: 19451
The phrase "changes his or her name" in the sex offender registration statute was not unconstitutionally vague.Defendant was convicted of failing to register as a sex offender after changing his name. (Penal Code section 290(f)(3).) He argued the phrase "changes his or her name" in the statute was unconstitutionally vague as to him because it failed to provide him notice of what he need to do to conform to the registration requirement and impermissibly allowed the jury to decide its meaning on an ad hoc and subjective basis. However, by using two names "Jerry Bonelli" and "Gary Vincelli," defendant used "different" names. Section 290, subd.(f) was sufficiently certain to notify defendant his conduct would require him to reregister.id: 18766
Forgetting to update one's registration because of severe depression may not negate the section 290 willfulness requirement.The willfulness element of Penal Code section 290 requires actual knowledge of the duty to register as a sex offender. Willfulness may be negated by evidence that an involuntary condition - physical or mental, temporary or permanent - deprived a defendant of his or her duty to register. However, only the most disabling of conditions, such as severe Alzheimers or amnesia induced by trauma, would qualify. Defendant's claimed depression did not satisfy the standard.id: 18612
The court did not negate the willfulness element of section 290, subd.(g)(2) by adding the language "and failed to do so" to CALJIC 1.20.Defendant was convicted of failing to register as a sex offender in violation of Penal Code section 290, subd.(g)(2). He argued that when the court modified CALJIC 1.20, by adding the language "and failed to do so," it negated the willfulness element. However, the instruction given informed the jury it must find defendant had actual knowledge of the duty to register a new address but failed to do so. The instruction was proper.id: 18325
27 years-to-life three strikes term for failing to register under section 290 was not cruel and unusual.Defendant was convicted of failing to register as a sex offender pursuant to Penal Code section 290, subd.(g)(2). His 27 years-to-life three strike sentence did not qualify as cruel and unusual punishment due to his criminal history as a recidivist and child sex offender whom the jury found knowingly failed to register in violation of section 290.id: 18326
Evidence of defendant's second residence supported his conviction of failing to register under section 290.Evidence supported defendant's conviction of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). The great weight of the evidence showed he had established a second residence and a reasonable inference could be drawn that he knew this, and therefore knew he was required to register. The evidence showed defendant's connection to the new residence was something other than a brief or transitory stay.id: 18327
Trial court did not err in refusing to instruct that the duty to register as a sex offender is triggered when the defendant resides in the new residence for five consecutive working days.Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). He argued the court erred by rejecting his proposed special instruction suggesting defendant was not required to register unless he resided at the new address for at least five consecutive working days. However, there was no support for that interpretation and the trial court properly instructed the jury it need only find defendant failed to register within five working days of "establishing" his second residence.id: 18329
Mandatory sex offender registration is not cruel and unusual when applied to misdemeanor indecent exposure.Penal Code section 290's sex offender registration requirement does not constitute cruel and unusual punishment when applied to a conviction for misdemeanor indecent exposure. Therefore, the trial court erred by refusing to impose the registration requirement triggered by the indecent exposure conviction.id: 18264
Defendant was properly convicted of both failing to register as a sex offender after his birthday, and after moving and separate sentences were proper since there were several triggering events.Defendant was convicted of failing to register as a sex offender within five days of changing his address under Penal Code section 290(a)(1)(A), and of failing to register within five days of his birthday under section 290(a)(1)(D). He argued one of the convictions should be stricken because section 290's registration requirements are continuing offenses. However, there were two separate offenses as the statute was violated in two separate ways. The separate convictions were lawful. Moreover, section 654 did not bar multiple punishment since defendant failed to register for consecutive years and moved several times in the interim.id: 18158
25 years-to-life under the three strikes law for failing to register as a sex offender was not cruel and unusual.Defendant argued that the three strikes sentence of 25 years-to-life for failing to register under Penal Code section 290 after changing his address was cruel and unusual punishment. However, the sentence was not grossly disproportionate to the crime in light of his lengthy criminal history. Moreover, there was nothing de minimis about the offense in the abstract or in this case. The sentence is not shocking to the conscience and does not offend fundamental notions of dignity.id: 18159
Forgetting to register as a sex offender may not negate the willfulness element of section 290, subd.(g)(2).Under Penal Code section 290, subd.(a)(1)(D), a registered sex offender must update his registration within five working days of his birthday. Willful failure to update the registration is a felony under section 290, subd.(g)(2). The willfulness element of the offense may not be negated by "just forgetting" to register.id: 18074
There is no equal protection violation in requiring sex offender registration for a defendant convicted of oral copulation with a minor but not for unlawful sexual intercourse with a minor.Defendant argued the order requiring him to register as a sex offender violated his equal protection rights in that Penal Code section 290 mandates sex offender registration for the crime of oral copulation of a minor (Penal Code section 288a, subd.(b)(1) ) but not for the "substantially similar" crime of unlawful sexual intercourse with a minor (section 261.5, subd.(c)). However, there is a plausible reason the Legislature made registration optional for the latter offense. The Legislature may have believed that oral copulation with a minor is more likely to occur and to reoccur because it: does not pose the risk of pregnancy, is easier to commit than sexual intercourse, is more difficult to detect by a third person, and may in the case of an adult male offender be committed against boys and girls.id: 17894
Requiring sex offender registration for a defendant convicted of oral copulation with a minor was not cruel and unusual.Defendant was convicted of oral copulation with a minor. He argued the sex offender registration imposed as part of his sentence constituted cruel and unusual punishment. However, considering the important, nonpunitive purpose of the sex offender registration requirement and the minimal, if any, punitive nature of the requirement, it does not shock the conscience or offend fundamental notions of human dignity.id: 17895
Defendant's duty to register as a sex offender was triggered where he left one address and moved to Oregon for 14 months despite his claim that he never had a new address in Oregon.Defendant was convicted of failing to notify the authorities of a change of address in violation of Penal Code section 290, subd.(f)(1). The evidence showed he moved out of his last registered address and failed to notify police of his new address in Oregon for 14 months before he was arrested. He argued the duty to inform the police was never triggered because he did not have a new address in Oregon. Rather, he had a series of transient visits with friends or in motels staying no more than a day at a time and not intending to return. However, the jury could reasonably infer he regularly returned to one or more address either with friends or in a motel during the 14 month period.id: 17776
Section 290(f)(1), a sex offender registration provision, was not vague for failing to define "location" to a person who was not a transient.Defendant argued that Penal Code section 290, subds.(a)(1)(A) and (f)(1), are unconstitutionally vague because sex offenders required to register under the provisions have insufficient notice what a "location" is and what constitutes a "change of location." His argument relating to subdivision (a)(1)(A) was irrelevant because he was convicted only of violating subdivision (f)(1). Moreover, the opinion finding the latter to be vague expressly applied to transients. Defendant left his last address, a motel, to avoid becoming a transient.id: 17777
Sex offender may be prosecuted separately for failing to notify authorities in the county he left and failing to register in the county where he took up residency.A registered sex offender who fails to notify law enforcement agencies of his change of address when he moves from one county to another can be prosecuted in one county for the failure to notify law enforcement for the person was leaving the county (Penal Code section 290, subd.(f)(1)), and then be prosecuted separately in the other county for the failure to register in that county when the person took up residency there (section 290, subd.(a)(1)(A). Both prosecutions are permissible because a person necessarily has two separate intents and objectives in violating both subdivisions (a) and (f) of section 290, and each crime is a separate continuing act that is not so interrelated with the other as to come within the provisions of section 654.id: 17245
Jury was properly instructed that in order to be convicted of violating Penal Code section 290, defendant had to have knowledge that he was required to register as a sex offender.Defendant was convicted of willful failure to register as a sex offender within five working days of his birthday, in violation of Penal Code section 290, subd.(g)(2). He argued the court erred in failing to correctly instruct the jury on the element of knowledge. However, read in combination with CALJIC No. 1.20 instruction on willfulness, the trial court's general intent instruction pursuant to CALJIC No. 3.30 did not mislead the jury. Together, the instructions correctly informed the jury that in order to be convicted of violating section 290, defendant had to have knowledge that he was required to register.id: 17247
Forgetting to register does not provide a defense to the charge of willful failure to register as a sex offender.At defendant's trial for failure to register as a sex offender, the trial court correctly instructed that forgetting to register was not a defense to the crime. Defendant's claim that he lacked the necessary willfulness to commit the charged offense because he forgot the annual registration updating requirements was meritless. Moreover, there was no due process denial in permitting evidence of the forgetfulness defense and then precluding consideration of it. The jury was permitted to consider defendant's claim that he forgot he needed to register in determining willfulness. The instruction simply and correctly stated that forgetfulness alone could not negate willfulness.id: 17248
Defendant acquired new addresses for sex offender registration purposes where he stayed in two places for more than five days after leaving his registered address.Defendant argued there was insufficient evidence that he acquired a new residence (after leaving his Daly City residence) for purposes of the sex offender registration law. He claimed that after leaving the residence, he was a transient, and stayed at various locations for a night at a time with no intent to return. However, the evidence showed that he temporarily resided at a hotel and a homeless shelter for more than five days each. These stays, though brief, required compliance with the registration laws.id: 17106
A person commits a separate failure-to-register offense each time he enters the same jurisdiction and fails to register.A person commits a separate failure-to-register offense under Penal Code section 290, subd.(a)(1)(A) each time he enters the same jurisdiction and fails to register within the specified period.id: 17016
There is no equal protection violation in requiring sex offender registration for a person convicted of oral copulation with a minor even though the registration requirement does not apply to a person who has intercourse with a minor.Defendant argued his right to equal protection was violated by the fact that he was required to register as a sex offender due to his conviction of violating Penal Code section 288a, subd.(b)(1) (oral copulation of a person under the age of 18) because registration is not required of persons convicted of violating section 261.5 (unlawful intercourse with a person under the age of 18). However, defendant failed to show that the Legislature had no rational basis for requiring persons convicted of violating section 288a, subd.(b)(1) to register as sex offenders under section 290.id: 16974
Sex offender registration is not punishment and therefore the facts which lead to the requirement need not be alleged or proven beyond a reasonable doubt under Apprendi.Sex offender registration does not constitute punishment or penalty within the meaning of Apprendi v. New Jersey (2002) 530 U.S. 466, under the due process clause of the Fourteenth Amendment. Therefore, when the prosecution seeks to require registration under Penal Code section 290(a)(2)(e), due process does not demand that the fact necessary to impose the registration requirement - that the defendant committed an offense "as a result of sexual compulsion or for the purposes of sexual gratification" - be alleged in the information or proven beyond a reasonable doubt.id: 16835
It is no defense to a failure to register as a sex offender charge that defendant knew of the requirement but forgot to register.Defendant was convicted of failing to register as a sex offender. He argued the court erroneously rejected the consideration of a legitimate defense - that he did not willfully fail to register since he forgot he was required to do so. However, once a person is made aware of the registration responsibility, he may not defend on the basis that the requirement simply slipped his mind.id: 16615
Court did not abuse its discretion by imposing probation conditions requiring that defendant who was convicted of failing to register as a sex offender work full time, submit to drug testing, and not associate with minors.Defendant was convicted of failing to register as a sex offender under Penal Code section 290. The court did not abuse its discretion by requiring full time employment as a condition of probation. His claimed medical problems were not severe and were considered by the probation officer. The drug and alcohol testing condition was also proper since the underlying 1996 sex offense involved methamphetamine abuse. Finally, there was no error in the requirement that he refrain from associating with minors or frequenting places where minors congregate.id: 16616
Defendant violated the section 290, subd. (f) sex offender registration requirement by failing to register a second address while keeping the former residence.Defendant argued the evidence did not support his conviction of failing to notify law enforcement of a change of address under Penal Code section 290, subd. (f), because he merely added a second address and did not change his address. However, defendant violated the provisions by adding a new address without notifying the authorities.id: 16597
Requirement that a person register as a sex offender does not constitute punishment for ex post facto purposes.Following defendant's conviction of a series of criminal offenses, the trial court ordered him to register as a sex offender pursuant to a provision in Penal Code section 290 that became effective after defendant committed those crimes. He argued that requiring him to register as a sex offender violated ex post facto principles. However, the trial court's order was valid because the requirement that a person register as a sex offender does not constitute punishment for purposes of ex post facto analysis.id: 15288
There was no improper dual use of the prior sex offense which triggered the registration requirement under section 290 and was then used as a strike prior to double the term.Defendant was convicted of failing to register as a sex offender under section 290. The court used his prior sex related conviction to double his punishment under the three strikes law. Defendant argued that section 290 has already "factored in" the commission of the prior felony in setting the three year maximum term, and that the trial court improperly relied on that prior to double his punishment under the three strikes law. However, nothing in the language of the three strikes law or the cases construing it indicate the framers intended to exempt section 290 from the law. There was no improper dual use of the prior conviction.id: 14812
Requiring public masturbator to register as a sex offender was not cruel and unusual.Appellant pled guilty to annoying or molesting a child in violation of Penal Code section 647.6 (a misdemeanor) after he was found masturbating in front of two boys in a public park. The probation condition that he register as a sex offender pursuant to Penal Code section 290 did not constitute cruel and unusual punishment.id: 13697
Mandatory sex offender registration for misdemeanor violations of indecent exposure provision is not cruel and unusual.Defendant was convicted of indecent exposure in violation of Penal Code section 314, subd.1. He challenged the part of his sentence requiring him to register as a sex offender pursuant to section 290. He argued that mandatory sex offender registration is cruel and unusual punishment when applied to a misdemeanor conviction of indecent exposure and that even under a case-by-case analysis the evidence failed to support the trial court's finding that the requirement was constitutional as applied to him. The court found that mandatory registration for misdemeanor convictions of section 314 is not unconstitutional. Moreover, the requirement was certainly constitutional as applied where defendant's exposing and stroking his private parts was persistent, his attitude was aggressive, even hostile and the evidence suggested his behavior may have escalated into more egregious sexual misconduct under different circumstances.id: 9972
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850