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What’s the Habitual Sex Offender Sentence Enhancement?

You or a loved one may be facing a second case for a felony sex offense and someone told you that the Habitual Sex Offender Sentence Enhancement may apply. You were told that if it applies, your sentence is twenty-five years to life in prison.

Moreover, probation is not possible and the judge cannot suspend imposition of the sentence. Penal Code § 667.71(e). The person must register as sex offender under Penal Code § 290. What is this?

It is an attempt by our legislature to recognize that certain sex offenders represent a uniquely high danger to the public and consequently, after committing two or more felonies involving certain conduct, they have proven themselves too dangerous to continue living outside prison for quite some time. Estimates are that there are approximately 85,000 such individuals in our state prisons as of 2006 and perhaps more at present.
In a Nutshell: The Habitual Sex Offender sentence enhancement is 25 years to life for a second conviction of certain serious sex crimes such as rape, lewd or lascivious acts (Penal Code § 288(a) or (b)), sodomy, oral copulation, kidnapping to commit a sex crime and aggravated sexual assault of a child.
Penal Code § 667.71 sets forth this punishing sentence enhancement. Under § 667.71, a “Habitual Sex Offender” is someone convicted of any one of thirteen specified felony sex crimes and then later convicted of the same felony or another sex specified sex crime. The first conviction may be from outside California.

The thirteen sex crimes specified under § 667.71 are:
  1. Rape (Penal Code § 261(a)(3) or § 261(a)(6));
  2. Spousal rape (Penal Code § 262(a)(1) or § 262(a)(4));
  3. Rape, spousal rape, or sexual penetration, in concert (Penal Code § 264.1);
  4. Lewd or lascivious act (Penal Code § 288(a) or § 288(b));
  5. Sexual penetration (Penal Code § 289(a) or § 289(j));
  6. Continuous sexual abuse of a child (Penal Code § 288.5);
  7. Sodomy (Penal Code § 286(c) or § 286(d));
  8. Oral copulation (Penal Code § 288a(c) or § 288a(d));
  9. Kidnapping (Penal Code § 207(b));
  10. Kidnapping to commit certain sex offenses (Penal Code § 208(d));
  11. Kidnapping with the intent to commit certain sex offenses (Penal Code § 209(b));
  12. Aggravated sexual assault of a child (Penal Code § 269); or
  13. An offense committed in another jurisdiction that includes all of the elements of any one of the prior twelve offenses above.
It merits mention that under § 667.71(d), the legislature stated that a judge cannot strike a prior conviction under § 1385 (“in the interest of justice”) to help a defendant avoid the mandatory twenty-five years to life sentence. In other words, there is no way a defendant can avoid such a sentence like a “Third-Striker” might by having a Romero motion granted.

Torrance Courthouse
For a judge to impose this heavy twenty-five years to life sentence on defendant, the prosecutor must allege this sentencing enhancement in the complaint. In other words, if the complaint or information does not allege that such a sentence enhancement applies, the judge may not impose it. Naturally, a good defense attorney would ask the prosecutor to strike such an allegation if the equities in the case suggest such a draconian sentence would be inappropriate in the case.

For example, striking such an allegation may be appropriate if defendant had one of the thirteen conviction at age 19, perhaps with mitigating circumstances (due to alcohol or drug use, a coerced confession, mistaken identity, etc.). Then at age 53, he was again arrested for such behavior, but the victim may have her own credibility issues and the defendant lived a crime-free live since age 18. Under such facts, the prosecutor may agree to strike the habitual sex offender sentence enhancement allegation, thereby preventing the judge from imposing such a heavy sentence.

The new law concerning tiered sex offender registration requirements, Senate Bill 384 (SB 384), does not modify Penal Code § 667.71 in any way.
In the past, there have been other legislative attempts to safeguard the public from such individuals through residency restrictions that prohibited the individual from living within 2,000 of any school, lengthened parole periods to up to ten years and requirements that such folks continuously wear a GPS monitor that police could track.

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