Lifetime Sex Offender Registration California
In California, defendants are subject to mandatory lifetime sex offender registration when convicted of any offense listed in Penal Code section 290.
Failure to register as a sex offender constitutes a felony. Section 290.018 provides that "any person who is required to register under the Act based on a felony conviction or juvenile adjudication who willfully violates any requirement of the Act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the Act and who subsequently and willfully violates any requirement of the Act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years."
In pertinent part, section 290 provides:
"(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 ... 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.
"(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, 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, of subdivision (b) 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."
Section 290 does not refer to the conduct underlying a conviction in determining who must register as a sex offender. Instead, subdivision (c) of the section predicates registration on conviction of specified Penal Code sections and "any statutory predecessor that includes all elements of one of the above-mentioned offenses ... ." Thus, "[a] critical element of section 290 is conviction of an enumerated sex offense ... ." (People v. Cajina (2005) 127 Cal.App.4th 929, 933.)
In determining whether a defendant has violated the registration requirement of section 290, the trier of fact may not elevate an otherwise nonqualifying prior conviction into one requiring registration by relying on evidence of conduct underlying the conviction. In the case of In re J.P. (2009) 170 Cal.App.4th 1292 [89 Cal.Rptr.3d 17], the Court of Appeal rejected the Attorney General's contention that the trial court should have considered the facts underlying the defendant's juvenile conviction of a nonforcible sex offense in determining whether the defendant was required to register as a sex offender. (Id. at pp. 1293, 1295, 1299.) the J.P. court examined and followed the reasoning of People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal. Rptr. 3d 821, 129 P.3d 29] (Hofsheier) to conclude that the defendant was denied equal protection of law by being required to register as a sex offender for a violation of section 288a, subdivision (b)(1). (Hofsheier, at pp. 1293, 1295-1296.)
In relieving the defendant of the sex offender registration requirement, the J.P. court rejected the Attorney General's assertion that an examination of the facts underlying the offense would have allowed for a conviction of an offense for which registration would not have violated equal protection guarantees. (In re J.P., supra, 170 Cal.App.4th 1292, 1299.) As the J.P. court explained: "We are unconvinced by the People's proposed approach, which would require us to look beyond the statutory elements of the offense he admitted. While the Hofsheier decision discussed the factual scenarios that typically underlie the statutes it was considering, its equal protection analysis involved a comparison of 'persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors.' " (Id. at p. 1299.) "This approach jibes with the mandatory registration statutes themselves, which are triggered by certain convictions or juvenile adjudications, and not by the underlying conduct of those offenses per se. Section 290, which requires sex offender registration for adult offenders, applies to persons convicted of certain offenses (see 290, subd. (c)) ... ." (Id. at p. 1299.)