The Law For Penal Code 290 – Failure to Register as a Sex Offender

California, like all other states, has a law requiring persons convicted of most sex crimes to register with the city or county in which they live. Officially called the California Sex Offender Registration law1 and found under Penal Code 290, it is also referred to as Megan’s Law. This refers to a young girl who was raped and killed by a repeat sex offender in New Jersey who had unknowingly moved across the street from where the child was living.

If you are on the registry, your name and address is posted for public viewing. This can lead to protests by neighbors and city officials about your presence and in some cases, active harassment by people who are aware of your address and description.

If you are required to register, it must be done at a police department and the applicable agency in the town or city where you live on an annual basis within 5 days of your birthday and whenever you change residences. If you fail to register, you are in violation of PC 290(b)2 or failure to register as a sex offender, which may be a misdemeanor or a felony3.

Required Elements To Convict For Penal Code 290

Like any other criminal offense, there are certain elements that must be proved by the prosecution to convict you:

  1. You have a conviction for a sex offense for which you are required to register pursuant to PC 290(c)4
  2. You reside in California5
  3. You had knowledge of your obligation to register as a sex offender
  4. You intentionally or willfully failed to register in the city or county where you are living or within or on your birthday
Element 1 - Conviction of certain sex crimes

Not all sex crimes are offenses that require offenders to register as a sex offender but many are included such as:

There are exceptions for some misdemeanor sex crimes involving minors or child pornography violations. In other cases, a defendant may be required to register as a sex offender if there is evidence that the defendant intended to rape or sexually assault a person or otherwise engage in sexual gratification even if no such act took place.

Element 2 - Residency

The second element is proving that you were residing in California when your duty to register arose, including have just moved here from another county, city or state6. If you move at all, you are required to register with the police and applicable agency of your new town or city7.

If you are living on a college campus in California, you will be required to register with the campus police. Visiting and staying at a friend’s or relative’s home for a time does not qualify as residing there unless you show some intent. This would include evidence of paying rent, securing employment or advising people that you have moved here.

Element 3 - Knowledge of obligation to register

To be prosecuted for failure to register as a sex offender, the prosecution must prove you lacked the knowledge of your legal requirement to register8. However, if there is a court record that indicates that you were ordered to register, even if only given orally in court, then you will likely be found to have had knowledge.

You will also be found to have had knowledge if the prosecutor gave you oral notice in open court that is verified by the court record. When you were released from prison or jail, you were either given a written notice of your duty to register or an oral one by a representative of the Department of Corrections. Also, when you were arraigned and given a copy of the complaint against you, the crimes of which you were charged will be ones for which a conviction requires registration.

Defenses might be that you lacked the mental capacity to understand your obligation or were illiterate or there were circumstances that prevented you from fulfilling your obligation.

Element 4 - Willful failure to register

Willful failure is connected with the element of knowledge of your obligation to register since you cannot willfully or intentionally fail to register if you lacked the knowledge that you were ordered to do so9. Again, if circumstances caused a delay in your registering such as hospitalization, then you can use this to show lack of willful failure to register.

Penalties For Failing To Register As A sex Offender

It depends on whether the underlying sex offense for which you were convicted was a misdemeanor and whether you have any prior convictions for failing to register. If this is your first offense and you were convicted of a misdemeanor sex offense, then you will be charged with a misdemeanor. You face up to 12-months in jail and/or a fine up to $1000.

Underlying Offense Was A Felony:

If the underlying offense was a felony, then failing to register as a sex offender is a felony offense. You face 16-months, 2 or 3 years in state prison, a fine up to $10,000 and formal probation. It is also a felony if you had a prior conviction for failing to register regardless if it was a misdemeanor sex offense.

Further, if your obligation to register arose on multiple occasions, then you face a separate count for each time you failed to do so. For example, if you failed to register when you moved from LA to San Francisco and again within 5 days of your birthday, then you face two charges of violating PC 290(c). You continue to violate the statute each time your duty to register arises so that you may face significant time in prison.

Defenses For Failing To Register

There are a number of defenses available to a person who did not register as a sex offender when required to do so. Regarding lack of knowledge, your attorney might assert you lacked the mental capacity to understand or had some kind of cognitive disability in which you failed to understand what registering meant despite acknowledging your understanding in court or even signing your name to documents that included your obligation.

Another is arguing that you did not willfully neglect to register. Although you had knowledge, circumstances were such that you were unable to register. You may have been temporarily incapacitated, ill or hospitalized. If an emergency arose that caused you to miss the date, that may be a reasonable excuse as well.

If you can prove you mailed your registration, then the agency’s assertion that it did not receive the documents may be a valid excuse since mail can be lost or mislaid. Further, a clerk who entered your information may have done so erroneously.

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Frequently Asked Questions

What if I moved here from another state where I did not have to register?

You have a responsibility to find out if California will require you to register under its own laws. If you committed a sex crime that under California law would have required you to register, then you must register when you move here.

Will the court give me a break if this is my first time failing to register?

It depends on your excuse for failing to register. If the court can be convinced that you did not register because of some emergency or that you did submit your registration information but that it was lost or have some other valid excuse, then the court might accept it and dismiss the charge against you.

Can my failure to register as a sex offender subject me to California’s 3-strikes law?

It can if you have two prior strikes and the sex crime for which you are required to register is a felony. Also, your two prior felonies must have been violent or serious felonies, which includes any sex crime committed with force, violence or the threat of it. Other serious sex crimes are oral copulation, sodomy or sexual penetration with a person under the age of 14 and who is at least 10-years younger than you. A third strike means you face incarceration of 25 years to life.

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

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Footnotes

  1. See also – Adam Walsh Child Protection Act of 2006 []
  2. Penal Code 290(b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act []
  3. Continuing Offense. Wright v. Superior Court (1997) 15 Cal.4th 521, 527-528 []
  4. Penal Code 290(c)- The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses. []
  5. People Must Prove Defendant Was California Resident at Time of Offense. People v Wallace (2009) 176 Cal.App.4th 1088, 1102–1104 [98Cal.Rptr.3d 618]. []
  6. People v. Davis (2002) 102 Cal.App.4th 377 []
  7. People v. Smith (2004) 32 Cal.4th 792,800-802 []
  8. Actual Knowledge Of Duty Required. People v. Garcia (2001) 25 Cal. 4th 744, 752 []
  9. Willfully Defined. Pen. Code, § 7(1); see People v. Barker (2004) 34 Cal.4th 345,360.  If a person actually knows of his or her duty to register, “just forgetting” is not a defense. (People v. Barker (2004) 34 Cal.4th 345, 356–357 [18 Cal.Rptr.3d 260, 96 P.3d 507].) In reaching this conclusion, the court stated, “[w]e do not here express an opinion as to whether forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence, might negate the willfulness required for a section 290 violation.” (Id. at p. 358 [italics in original]. []

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