Mandatory vs. Discretionary Sex Offender Registration California Penal Code 290
Who has to Register as a Sex Offender in California?
Sex offender registration in California can be a requirement of your sentence in two ways:
- Mandatory sex offender registration consequence of your conviction; or
- Discretionary sex offender registration ordered by the court.
California Penal Code Section 290(c) lists the crimes that require mandatory lifetime sex offender registration, including:
- Sexual penetration by use of force or fear – PC 289
4. Aiding and abetting a rape – PC 264.1
5. Pimping or pandering a minor – PC 266h; PC266i
6. Child Procurement – PC 266j
7. Aggravated sexual assault of a child under 14 years of age – PC 269
8. Contributing to the delinquency of a minor with lewd or lascivious conduct – PC 272
9. Incest – PC 285
10. Sodomy – PC 286
13. Showing obscene material to minors – PC 288.2
14. Contacting a minor with the intent to commit certain felonies – PC 288.3
15. Arranging a meeting with a minor for lewd purposes – PC 288.4
16. Continuous sexual abuse of a minor – PC 288.5
17. Engaging in sodomy with a child 10 years or younger – PC 288.7
18. Sexual penetration by force or fear – PC 289
22. Solicitation to commit a sex crime – PC 653f(c)
23. Any statutory predecessor that includes all elements of one of the above-mentioned offenses
24. Attempt or conspiracy to commit any of the above-mentioned offenses
Regardless of the severity of the crime, sex offender registration is a mandatory consequence upon either a felony or a misdemeanor conviction for any of the crimes mentioned above. The judge must sentence you to register as a sex offender pursuant to Penal Code Section 290.
Pursuant to California Penal Code Section 290.006, you may be ordered by the court to register as a sex offender if the court finds that you committed your 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 upon being convicted of a non-sex offense under certain circumstances. If you committed your offense for sexual purposes (stealing women’s underwear, for example), the court has discretion to order you to register as a sex offender. The net result is the same: a lifetime duty to register.
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 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 sex offender 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.
Requirements of Sex Offender Registration – California Penal Code Section 290 (PC290)
If you are required to register as a sex offender, you must:
- Go to your local police or sheriff’s station, by appointment in some cases;
- Submit a report, including your:
- Full name or names you use;
- Home address if you have one;
- Telephone numbers;
- Employment information if you have a job;
- Vehicle information if you drive or have any vehicle registered in your name;
- Identifying information (scars, tattoos);
- Criminal identifying numbers (FBI, CDCR, etc.); and
- Campus information if you are attending college;
- Be fingerprinted;
- Be photographed, and
- Carry a valid registration receipt on your person at all times.
California law requires that you re-register annually within five (5) working days of your birthday, whenever you move and when you come into a jurisdiction for the first time (upon initial release from jail or prison, for example). If you are deemed a Sexually Violent Predator (“SVP”), you must do the above, as well as update your registration every 90-days. If you are (“homeless”), you must re-register with a law enforcement agency every 30 days. You must also update your registration whenever you leave a jurisdiction (leave the county, for example) as well as register when you enter a new jurisdiction.
Additionally, a person who has been convicted of a sex offense requiring registration in another state may also have to register in this state if he or she moves to California or comes here for a limited amount of time.
Residency and Presence Restriction Laws Impacting Sex Offenders
There are many other consequences to sex offender registration beside the potential for public listing on Megan’s Law. Neither the legislature nor the Supreme Court considers sex offender registration to be a punishment. However, many state and local governments have passed tough laws designed to restrict where a sex offender may live and physically be present.
Jessica’s Law makes it unlawful for anyone required to register as a sex offender to live within 2000 feet of a school or park where children regularly gather. Although the California Supreme Court has ruled that state residency restrictions only apply to parolees, many local municipalities have adopted similar ordinances that prohibit where a registered sex offender may live and physically be present. Violation of the local ordinances is often a misdemeanor offense, punishable by up to one-year in county jail as well as a fine.
Many cities and counties throughout California have passed local laws forbidding anyone who is required to register as a sex offender from being within 300 to 500 feet of places such as:
- The beach, including any piers;
- Recreational facilities where children gather (the “YMCA” for example);
- Day-care centers;
- Public and private elementary and secondary schools;
- Public swimming pools;
- Public libraries; and
- Certain bus stops (where children gather).
Although many of these ordinances are being declared unconstitutional in the courts, state and local politicians seem to be undeterred in passing them. “Designer Laws” aimed at protecting children at all costs from an undesirable and misunderstood segment of the population are immensely popular. Many politicians seem uninterested in the Constitutional rights of those who are being negatively impacted by these laws.
The fact is, according to the California Department of Corrections and Rehabilitation, just 1.9% of registered sex offenders commit another sex crime (CDCR Report to the Legislature, August 2012). The facts support that the overwhelming majority of new sex crimes are committed by people already known to children, not by strangers and not by persons already required to register – seemingly refuting the myth of “stranger danger.”
Homelessness and Unemployment
Most sex offender registrants (“PC290’s”) report that it is extremely difficult to find and maintain housing and employment. Homelessness and unemployment are facts of daily life now for tens of thousands of registrants across the state, particularly for recently released PC 290 parolees and probationers. An experienced Criminal Defense Attorney may be able to help you to avoid such dire conditions.
Wallin and Klarich can help you to avoid sex offender registration
If you or someone you care about has been charged with a crime that may require sex offender registration, you need to know what your rights are and what could be life-altering consequences of a conviction. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending sex crimes cases. With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Victorville, Torrance, and Sherman Oaks, we have been able to help many of our clients avoid being put on the sex offender registry. If you have already been convicted of a sex crime, we may be able to assist you in relieving you of your lifetime duty to register as a sex offender.
Call us today at 1(877) 4-NO-JAIL (1-877-466-5245) for a free telephone consultation.
We will get through this together.