Sex Offender Registration Act – Crimes with Discretionary Registration – California Penal Code Section 290

California Penal Code Section 290.006

Under California Penal Code Section 290.006, a person may be ordered by the court to register as a sex offender if the court finds that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.  This means that you may have to register as a sex offender for a crime committed that was not listed under Section 290.  You can commit ANY crime and if it was committed for sexual purposes, the court has discretion to order you to register as a sex offender.  The court has discretion to weigh the reasons for and against registration in each particular case.  The judge can use any relevant factors to make the decision.

Hofsheier Issues

The court has found that mandatory requirement to register as a sex offender violates a defendant’s Equal Protection right under the U.S. Constitution for certain crimes committed.  The United States and California Constitutions guarantees that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances.  (U.S. Const., 14th Amend.; Cal. Const., art. I. Section 7.) (People v. Romo (1975) 14 Cal.3d 189, 196.)  A litigant challenging a statute on equal protection grounds bears the threshold burden of showing “that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549.)

In People v. Hofsheier, (2006) 37 Cal.4th 1185, the defendant, a 22-year-old man, plead guilty to oral copulation with a 16-year-old girl in violation of Penal Code section 288a(b)(1).  Id. at 1192.  The Act, under Section 290, requires a defendant convicted of certain sex crimes, including Section 288a, to register as a sex offender.  The defendant appealed and argued that the mandatory registration violated his Equal Protection right because the Act does not require a mandatory registration for a conviction under Penal Code 261.5.

Under California Penal Code 261.5, it is a crime for any person to engage in unlawful sexual intercourse with a minor.  This crime is also known as statutory rape.  The Act does not require a person convicted for this crime to register as a sex offender.  This meant that oral sex required registration as a sex offender, but sexual intercourse did not require registration.  The court found that this was a violation of the defendant’s Equal Protection right.  Instead of requiring a mandatory registration as a sex offender, the defendant would be subjected to discretionary registration by the court.

How does this help you?

Some offenses listed under the Act that requires mandatory registration as a sex offender may be argued to be an Equal Protection violation.  The court has already held that sexual penetration of a minor under Penal Code Section 289(h) is an Equal Protection violation.  However, even if mandatory registration as a sex offender may be found to be an Equal Protection violation, the court still has discretion to require you to register under California Penal Code Section 290.006.

It is an advantage to have an offense that does not require mandatory registration.  A defendant charged with an offense that does not require such registration may be able to stipulate in a plea bargain that the judge will not order registration.  This is not allowed for a crime with a mandatory registration requirement.

It is important that you speak with an experienced sex crimes attorney if you are facing charges.  At Wallin & Klarich, our attorneys can review your case and advise on whether you are facing mandatory registration and whether an Equal Protection argument can be made.  Call us today at (888) 749-0034 or contact us on our website at www.wksexcrimes.com.  We will be there when you call.