Failure to Register as a Sex Offender (PC 290(b))?

Failing to register as a sex offender is a harsh, unforgiving crime with significant punishment, even for a misdemeanor.

If one is a registered sex offender, while residing in California, even while attending school here, that person must register with the chief of police of the city in which the person is residing, or the sheriff of the county if the person is residing in an unincorporated area or city that has no police department. If the person is attending college in California, that person must register with the chief of police of that campus of the University of California, the California State University, or community college if the person is residing upon the campus or in any of its facilities.

The time for registration is within five working days of coming into, or changing the person's residence within, any city, county, or city and county, or campus in which the person temporarily resides, unless the duty to register is terminated under Penal Code § 290.5 (Senate Bill 384) or after a certification of rehabilitation is granted.

Failure to comply with a registration requirement is a zealously prosecuted crime. If one’s § 290 offense was a misdemeanor or a juvenile adjudication, then failure to register is usually a misdemeanor for the first violation and a felony for any further violations.

First and foremost, in order to be a crime, the failure to register must be “willful.” Willfulness is evaluated first and foremost by whether defendant was given notice of a duty to register. People v. Garcia (2001) 25 Cal.4th 744, 754.

Willfulness, it should be noted, can be just forgetting to register once notice is established.

However, if one does not actually know he or she had to register or if that person was unable to register due to circumstances beyond that person’s control, then he or she may be able to avoid a conviction for violating the registration law. Bartlett v. Alameida (9th Cir., 2004) 366 F. 3d 1020, 1024 (although defendant was given written notice of duty to register, he was entitled to present evidence that they did not read the forms, did not comprehend them, or misinterpreted the requirements); People v. Edgar (2002) 104 Cal.App.4th 210, 221 (conviction reversed where person was transient, documents did not provide clear notice of requirements, and prosecutor failed to show person knew he was required to register additional addresses); People v. Aragon (2012) 207 Cal. App. 4th 504 (no willful violation when defendant, who lived in a mobile trailer but continued to register as a transient, did not know that the trailer was a residence); but see People v. Yoloy (2015) 239 Cal.App.4th 1116 (failure of jail to notify about registration requirement upon release did not bar conviction for failing to register since person had previously registered and must have actually known of duty to re-register).

Furthermore, failure to register is not willful if the registrant had a severe involuntary physical or mental condition that prevented him or her from having actual knowledge of the duty to register. People v. Sorden (2005) 36 Cal.4th 65, 72.

However, simply forgetting to register is not a defense, even if one’s memory lapse was related to depression. People v. Barker (2004) 34 Cal.4th 345, 356-357; People v. Sorden (2005) 36 Cal.4th 65, 72; People v. Bejarano (2009) 180 Cal.App.4th 583.

If one’s underlying, prior sex offense conviction was a felony, failure to register is a felony (Penal Code § 290.18). The failure to register is not a “wobbler,” as some of our clients ask us.

It should be understood that there is no statute of limitations on failure to register since courts consider it to be a continuing violation. People v. Fioretti (1997) 54 Cal.App.4th 1209, 1217.

It merits mention that even if one’s sex offense conviction is later reversed or vacated by a court, California can still convict that person for a registration violation that occurred before the conviction was reversed or vacated. In re Watford (2010) 186 Cal.App.4th 684, 687.

It also should be understood that if one fails to register after a move from one state to another, that person can also be convicted of violating federal registration laws or another state’s registration laws (as well as California’s law requiring one to notify law enforcement before changing one’s address). See People v. Davis (2011) 202 Cal. App. 4th 429 (federal prosecution for failing to register under SORNA did not bar prosecution under state registration laws). In other words, the constitutional ban on double jeopardy does not apply.

One should appreciate, furthermore, that one can be convicted of a separate offense for each requirement one violates. For example, a person can be convicted of two crimes for failing to update one’s registration annually and failing to inform authorities of a change of address, even if both offenses happened during the same time period. People v. Villegas (2012) 205 Cal. App. 4th 642 (failure to tell police of plan to move and failure to report new address were separate violations which could result in separate convictions; however, redundant punishment is prohibited).

The client should find some comfort in knowing that Penal Code § 654 prohibits a judge from imposing sentences for two registration crimes that arise from a single course of conduct. For example, if one moves to a new county and fails to notify authorities in either the county one is leaving or the county one is entering, then that person can be convicted of two crimes, but can only be punished for one offense.

Punishment for a felony violation, if probation is not granted, is a minimum of sixteen months in custody, a mid-term of two years or high term of three years. If the underlying conviction was a “Strike” under California’s Three Strike Law, then the punishment may be doubled.

In some circumstances, the punishment could even be a life sentence under the “Three Strikes Law” (Penal Code §§ 667(b) - (i), 667.5(c), 1192.7(c)). However, such a life sentence is only allowed if person’s prior conviction is for a “Super Strike” offense. Many sex offenses qualify as “Super Strikes,” i.e., a sexually violent offense as defined by Welfare & Institutions Code § 6600; a violation of either Penal Code §§ 288a, 286, or 289 with a child under 14 and more than 10 years younger than the person; or a violation of Penal Code § 288 with a child under age 14. Penal Code § 667(e)(2).

Courts have upheld some “Third Strike” sentences for failure to register against claims that those sentences were cruel or unusual punishment in violation of the federal Constitution’s Eighth Amendment. See, e.g., In re Coley (2012) 55 Cal.4th 524 (not cruel and unusual punishment to sentence defendant to 25 years to life for failing to update registration where refusal to register was intentional and prior criminal history heinous); Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784 (26 years to life was not cruel and unusual punishment for a registration violation where defendant had lied about his identity in an attempt to deceive).

On the other hand, in a few cases, courts have overturned life sentences as being cruel or unusual where the failure to register was a technical violation, such as not registering annually though staying at the same address. See, e.g., People v. Cluff (2001) 87 Cal.App.4th 991; Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875.

If one is on parole when one violates registration requirements, that person can be returned to custody for a parole violation in addition to or instead of being prosecuted for a criminal offense. Penal Code §§ 3056-3057.

If probation is granted with a suspended sentence, the registrant must serve “at least” ninety days in county jail. Penal Code § 290.018(c). This ninety days cannot be suspended or stayed, which is a significant shock to many of our clients.

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