SERIES 1100 SEX OFFENSES
F 1170 NOTES
TABLE OF CONTENTS
F 1170 Note 1 Failure To Register As Sex Offender—CALCRIM Cross-References And Research Notes
F 1170 Note 2 Sex Offender Registration (PC 290): Defendant May Have More Than One Residence
F 1170 Note 3 Sex Offender Registration (PC 290): Due Process Requires Interpreter To Explain Duty To Register
F 1170 Note 4 Sex Offender Registration (PC 290): Due Process Attack On Notice
F 1170 Note 5 Sex Offender Registration (PC 290): Defendant Is Not “In Custody” And Cannot Obtain Habeas Review
F 1170 Note 6 Ex Post Facto Challenge To Sex Offender Registration Statute As Punitive Measure
F 1170 Note 7 Registration Of Sex Offender: Requirement Of Registration For Non-Forcible Oral Copulation With Minors Violates Equal Protection
F 1170 Note 8 Due Process Challenge To Sex Offender Registration Statute As Punitive Measure
F 1170 Note 9 Sex Offender Registration (PC 290): Cruel And Unusual Punishment Clause Not Applicable
F 1170 Note 10 Sex Offender Registration (PC 290): Expanded Registration Requirements
F 1170 Note 11 Sex Offender Registration: Sua Sponte Duty To Instruct On Actual Notice And Actual Knowledge
F 1170 Note 12 Definition Of Domicile And Residence
F 1170 Note 13 Sex Offender Registration As Continuing Offense
F 1170 Note 14 Requirement Of Actual Duty To Inform Agency Before Leaving Jurisdiction
F 1170 Note 15 Sex Offender Registration: No Violation Of “Liberty Interest”
F 1170 Note 16 Sex Offender Registration: Multiple Residences—Actual Knowledge Of Requirement
F 1170 Note 17 Failure To Register: Whether Forgetfulness Is A Defense
F 1170 Note 18 Sex Offender Registration: Whether the Terms “Located” And “Location” Are Unconstitutionally Vague
F 1170 Note 19 Sex Offender Registration (PC 290): Lifetime Registration For Oral Copulation And Not Sexual Intercourse Violates Equal Protection
F 1170 Note 20 Failure To Register: Improper To Instruct That Ignorance Of Law Is No Excuse
F 1170 Note 21 Failure To Register (PC 290): Multiple Offenses
F 1170 Note 22 Three Strikes Life Sentence For Failing To Update Sex Offender Registration Information Within 5 Days Of Birthday As Cruel And Unusual Punishment
F 1170 Note 23 Sex Offender Registration (PC 290): Definition Of Residence
Return to Series 1100 Table of Contents.
F 1170 Note 1 Failure To Register As Sex Offender—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 250 [Union of Act and Intent: General Intent]
CALCRIM 251 [Union of Act and Intent: Specific Intent or Mental State]
CALCRIM 3100 [Prior Conviction: Nonbifurcated Trial]
CALCRIM 3101 [Prior Conviction: Bifurcated Trial]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1170 Note 2 Sex Offender Registration (PC 290): Defendant May Have More Than One Residence
People v. Horn (1998) 68 CA4th 408 held that under PC 290 the defendant may actually have more than one residence for which there is a duty to register. Accordingly, the court held that the following instruction was correct:
“As used in this instruction the term residence means a temporary or permanent dwelling place, which one keeps and to which one intends to return, as opposed to a place where one rests or shelters during a trip or a transient visit. ¶ Depending upon the circumstances, one may have a single place of residence or more than one place of residence. ¶ One who has one place of residence and then adds a second place of residence has changed his residence within the meaning of this law and has duty to report this change resulting in an additional residence even though he may also maintain a residence at the old place.” (Horn, 68 CA4th at 414.)
However, Horn does not address the question of whether the notice given to the sex offender should specifically explain this requirement. Notwithstanding the existence of the duty to register a second residence, if the offender is not aware of this duty, criminal intent is not present. (See e.g., FORECITE F 18.56 n3 [notice of registration requirement form must be translated for non-English speaking defendant]; see also FORECITE F 18.56 n5; People v. Edgar (2002) 104 CA4th 210, 219-20 [instructions violated due process by imposing criminal liability for failing to register without any need for the jury to find that appellant actually knew the law required him to register multiple residences].)
CALJIC NOTE: See FORECITE F 18.56 n2.
F 1170 Note 3 Sex Offender Registration (PC 290): Due Process Requires Interpreter To Explain Duty To Register
PC 290 requires prison officials to inform the inmate of his or her duty to register prior to release. The inmate must also read and sign a form indicating that the duty to register has been explained to him/her; however, PC 290 makes no provision for the non-English speaking sex offender and does not insure that proper notice will be given. “Ingrained in our concept of due process is the requirement of notice.” (Lambert v. California (1957) 355 US 225, 228 [2 LEd2d 228; 78 SCt 240].) Therefore, requiring a non-English speaking inmate to read and sign the Notice of Registration Requirement form without the benefit of an interpreter is fundamentally unfair and violative of due process rights. [See Brief Bank # B-772foradditional briefing on this issue.]
CALJIC NOTE: See FORECITE F 18.56 n3.
F 1170 Note 4 Sex Offender Registration (PC 290): Due Process Attack On Notice
ALERT: As of January 1, 2001, PC 290(c) was amended to specify notification requirements for sex offenders who are granted conditional release without supervised probation and those discharged upon payment of a fine. Paragraph (2) requires the convicting court to (1) inform the person in open court of his or her duty to register as a sex offender, (2) require the person to read and sign any form that may be required by the DOJ which states that the duty to register has been explained to him or her, (3) obtain the address where the person expects to reside upon release or discharge, (4) report that address to the DOJ within 3 days, and (5) give copies of the form to the person, the DOJ and the appropriate law enforcement agency where the person expects to reside. The court may assign the bailiff to require the person to read and sign the form. (SB 446, Ch. 649; AB 1340, Ch. 648; SB 1955, Ch. 287; AB 2502, Ch. 240.)
PC 290 requires prison officials to inform the inmate of his or her duty to register once he or she is released. The inmate must also read and sign a form indicating that the duty to register has been explained to him/her; however, this procedure assumes that the defendant actually understood the requirement. (See e.g., FORECITE F 18.56 n 3 [interpreter required].) “Ingrained in our concept of due process is the requirement of notice.” (Lambert v. The State of California (1957) 355 US 225, 228 [2 LEd2d 228; 78 SCt 240].) The defendant’s understanding of the registration requirement should be an element of the offense. (See People v. Johnson (1998) 67 CA4th 67; see also F 1.20c [criminal liability for omission of statutory duty requires knowledge of that duty].)
“[A]ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the [sex offender registration] ordinance can stand.” (People v. Franklin (1999) 20 C4th 249, 253; see also People v. Garcia (2001) 25 C4th 744, 753 [defendant must have actual knowledge of sex offender registration requirement in order to violate PC 290]; People v. Edgar (2002) 104 CA4th 210, 219 [instructions given were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register]; People v. McCleod (1997) 55 CA4th 1205, 1216; People ex rel. Lungren v. Superior Court (1996) 14 C4th 294, 312; In re Christian S. (1994) 7 C4th 768, 780; Keeler v. Superior Court (1970) 2 C3d 619, 631; cf. Lambert v. California (1957) 355 US 225, 229 [2 LEd2d 228; 78 SCt 240].)
CALJIC NOTE: See FORECITE F 18.56 n5.
F 1170 Note 5 Sex Offender Registration (PC 290): Defendant Is Not “In Custody” And Cannot Obtain Habeas Review
(See McNab v. Kok (9th Cir. 1999) 170 F3d 1246.)
CALJIC NOTE: See FORECITE F 18.56 n6.
F 1170 Note 6 Ex Post Facto Challenge To Sex Offender Registration Statute As Punitive Measure
Using the seven-part test of Kennedy v. Mendoza-Martinez (1963) 372 US 144 [9 LEd2d 644; 83 SCt 554], Doe v. Otte (9th Cir. 2001) 259 F3d 979, 995 held that Alaska’s registration and public notification statute is punitive and cannot be applied retroactively to persons convicted before its enactment. The court left open the question of whether the statute also violated the due process clause when applied to persons convicted after its enactment. The opinion carefully distinguished other state laws that have not been found punitive, finding that Alaska’s four-times-a-year in-person registration was onerous, and that the notification portion provided for publication of name, photo, address, place of employment and other information on the Internet, while other statutes were more limited in scope. (Cf. Russell v. Gregoire (9th Cir. 1997) 124 F3d 1079 [Washington statute far more narrowly drawn did not violate the due process clause].) While the case in Doe v. Otte involved a 42 USC 1983 action and not a criminal proceeding, there should be no difference as far as the analysis concerned.
In Smith v. Doe (2003) 538 US 84 [155 LEd2d 164; 1235 SCt 1140], the U.S. Supreme Court held that the retroactive application of a state’s sex offender registration law which requires defendants convicted of certain sex offenses to register with local police for 15 years, or for life in the case of a serious or repeat offender, and requiring that some information submitted by the registrant be publicly disclosed via the Internet, did not violate the ban on ex post facto laws, since the registration requirement is a public safety measure and not punishment. (See also Hatton v. Bonner (9th Cir. 2003) 346 F3d 938.)
NOTE: California’s PC 290 registration and notification scheme falls somewhere between Washington’s and Alaska’s and has not been tested in federal courts. Therefore, counsel should raise and federalize the issue in all PC 290 cases. In cases where the statute is being applied retroactively, raise ex post facto and due process; in prospective application case, raise due process.
CALJIC NOTE: See FORECITE F 18.56 n7.
F 1170 Note 7 Registration Of Sex Offender: Requirement Of Registration For Non-Forcible Oral Copulation With Minors Violates Equal Protection
PC 290 requires registration for consensual oral copulations with minors. (See PC 288a(b)(2).) People v. Felarca UNPUBLISHED (1999) 74 CA4th 972 rejected the defendant’s argument that this registration requirement was cruel and unusual punishment in violation of the Eighth Amendment; however, the court held that the requirement violated the equal protection clause of the Fourteenth Amendment of the federal constitution because PC 290 does not provide for registration of statutory rape (PC 261.5) and there is no rational basis for requiring registration for consensual oral copulation with a minor but not requiring it for consensual sexual intercourse with a minor. (But see Beene v. Terhune (9th Cir. 2004) 380 F3d 1149 [revocation of plaintiff’s parole, for failure to register as a sex offender, is affirmed over plaintiff’s challenge that the registration requirement violates his equal protection and due process rights].) [See Opinion Bank # O-258forthe Felarca opinion.]
CALJIC NOTE: See FORECITE F 18.56 n8.
F 1170 Note 8 Due Process Challenge To Sex Offender Registration Statute As Punitive Measure
See discussion of Doe v. Otte (9th Cir. 2001) 259 F3d 979, 995 in FORECITE F 18.56 n7.
F3d 979, 995 in FORECITE F 18.56 n7.
CALJIC NOTE: See FORECITE F 18.56 n9.
F 1170 Note 9 Sex Offender Registration (PC 290): Cruel And Unusual Punishment Clause Not Applicable
In re Alva (2004) 33 C4th 254 held that requiring registration as a sex offender (PC 290) does not constitute “punishment” for purposes of the cruel or unusual punishment provision of the state Constitution (Cal. Const., art. I, § 7) or federal constitution (8th Amendment). (See also People v. Noriega (2004) 124 CA4th 1334 [extending Alva to any misdemeanor offenses listed in PC 290 such as misdemeanor indecent exposure (PC 314.1)].
CALJIC NOTE: See FORECITE F 18.56 n10
F 1170 Note 10 Sex Offender Registration (PC 290): Expanded Registration Requirements
Assembly Bill 4 (Stats. 2001, Ch. 544) amended PC 290 and added PC 290.01 to expand sex offender registration requirements to include new or existing students, employees, residents, persons carrying on a vocation, or transients at state or community colleges or universities. Made violation of this registration requirement a misdemeanor. The new provisions became effective July 1, 2002.
CALJIC NOTE: See FORECITE F 18.56 n11.
F 1170 Note 11 Sex Offender Registration: Sua Sponte Duty To Instruct On Actual Notice And Actual Knowledge
See Brief Bank # B-895forbriefing on this issue.
CALJIC NOTE: See FORECITE F 18.56 n12.
F 1170 Note 12 Definition Of Domicile And Residence
See Brief Bank # B-895forbriefing on this issue.
CALJIC NOTE: See FORECITE F 18.56 n13.
F 1170 Note 13 Sex Offender Registration As Continuing Offense
(See People v. Davis (2002) 102 CA4th 377.)
CALJIC NOTE: See FORECITE F 18.56 n14.
F 1170 Note 14 Requirement Of Actual Duty To Inform Agency Before Leaving Jurisdiction
(See People v. Davis (2002) 102 CA4th 377.)
CALJIC NOTE: See FORECITE F 18.56 n15.
F 1170 Note 15 Sex Offender Registration: No Violation Of “Liberty Interest”
In Connecticut Dept. of Public Safety v. Doe (2003) 538 US 1 [155 LEd2d 98; 123 SCt 1160], the U.S. Supreme Court upheld Connecticut’s “Megan’s Law,” holding that the sex offender registration law mandating public disclosure of certain information provided by registrants, without affording the offender a hearing on the issue of present dangerousness, does not violate a “liberty interest” protected by the 14th Amendment because mere injury to reputation does not constitute the deprivation of a liberty interest.
CALJIC NOTE: See FORECITE F 18.56 n16.
F 1170 Note 16 Sex Offender Registration: Multiple Residences—Actual Knowledge Of Requirement
Based on the actual knowledge requirement of PC 290 (People v. Garcia (2001) 25 C4th 744; see also FORECITE F 18.56c), People v. Edgar (2002) 104 CA4th 210 held that under the evidence and instructions, the jury must be required to find that the accused actually knew of the requirement of registering multiple residences. (Compare People v. Vigil (2001) 94 CA4th 485 [no error in sua sponte instructions on mistake of fact where reasonable person would have known that acquisition of additional addresses was a “changed” address per PC 290].)
CALJIC NOTE: See FORECITE F 18.56 n17.
F 1170 Note 17 Failure To Register: Whether Forgetfulness Is A Defense
People v. Barker (2004) 34 C4th 345 held that the willfulness element of a PC 290 violation may not be negated by just forgetting to register; however, the Court expressed “no opinion as to whether the instruction would be erroneous where a defendant’s forgetfulness allegedly arose from an acute psychological condition, or a chronic deficit of memory or intelligence.” (Id. at 358.)
CALJIC NOTE: See FORECITE F 18.56 n18.
F 1170 Note 18 Sex Offender Registration: Whether the Terms “Located” And “Location” Are Unconstitutionally Vague
Use of the term “location” in PC 290(a)(1)(A) and (f)(1) to require registration or notification of particular places where an offender may regularly be found, fails to provide sufficient specificity for either the offender or the authorities to understand what the statute demands. “The provisions of [PC 290(a)(1)(A) and (f)(1)] requiring re-registration and written notification upon a change of ‘location’ are void for vagueness, as is the [PC 290(a)(1)(B)] requirement, that a transient offender specify all the places where he is regularly located within a jurisdiction. Also void is the provision of [PC 290(a)(1)(D)] requiring annual verification of a transient offender’s ‘temporary location.’” (People v. North (2003) 112 CA4th 621, 634.)
The North court continued:
On the other hand, when the Legislature used “located” as a basis for identifying the jurisdictions in which registration is required, it provided the offender and the authorities with a reasonably certain registration requirement. It is possible to ascertain when a transient offender is within a jurisdiction, though it cannot be determined which locations within the jurisdiction must be separately identified, or when movement within the jurisdiction constitutes a change of location. Thus, the provisions of section 290, subdivision (a)(1)(A) requiring registration in the jurisdiction where an offender without a residence is “located,” and the provision of subdivision (a)(1)(B) requiring registration in all jurisdictions where such an offender is regularly “located,” are valid. (Ibid.)
“Located” for purposes of these requirements means present in the jurisdiction on a regular basis. What constitutes a “regular basis” in this context must be considered in light of the legislative intent to include offenders who are transient, and thus likely to be less “regular” in their routines than offenders with residences. The five day grace period for registration gives an indication of the time frame contemplated by the Legislature, as recognized in McCleod [People v.McCleod (9197) 55 CA 4th 1205]. By the same logic employed in McCleod, we conclude an offender is “located” in a jurisdiction for purposes of registration when he is present in the jurisdiction on five consecutive working days. He has five working days from the time he first “comes into” a jurisdiction to register as a transient, if he is in the jurisdiction on each of those days. (§ 290, subd. (a)(1)(A).)
Our interpretation of the statute accounts for offenders who change status from resident to transient, as did North in this case, or from transient to resident. The re-registration requirements in these situations pass muster under the vagueness doctrine, so long as transient offenders are not required to provide the authorities with statutorily unspecified “locations.” An offender registered as a resident who becomes transient has five working days to reregister as a transient under the terms of section 290, subdivisions (a)(1)(A) and (e)(2)(E). A transient offender who acquires a place to stay with an address for a period of five working days must reregister as a resident. The notification requirements of subdivision (f) apply only to information regarding changes of address, but any offender who is registered as a transient for 60 days is subject to the updating requirement of subdivision (a)(1)(C).
(People v. North (2003) 112 CA4th 621, 635.)
CALJIC NOTE: See FORECITE F 18.56 n19.
F 1170 Note 19 Sex Offender Registration (PC 290): Lifetime Registration For Oral Copulation And Not Sexual Intercourse Violates Equal Protection
See People v. Hofsheier (2006)37 C4th 1185.
CALJIC NOTE: See FORECITE F 18.56 n20.
F 1170 Note 20 Failure To Register: Improper To Instruct That Ignorance Of Law Is No Excuse
It is error to give an ignorance of the law is no excuse instruction [CJ 4.30] in a PC 290 prosecution for failure to register as a sex offender. (See People v. Edgar (2002) 104 CA4th 210, 219 [instructions given were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register]; see also People v. Barker (2004) 34 C4th 345, 361 [“we agree with Edgar“]. The same analysis applies to CJ 3.30 because the “jury might take the same lesson from CALJIC No. 3.30 as from CALJIC No. 4.36—that a defendant may be guilty of violating [PC] 290 even if unaware of his or her obligation to register.” (Barker, 34 C4th at 361.)
CALJIC NOTE: See FORECITE F 18.56 n21.
F 1170 Note 21 Failure To Register (PC 290): Multiple Offenses
Separate convictions are permissible for failure to register upon a change of address and failure to register annually. (People v. Meeks (2004) 123 CA4th 695, 703.)
CALJIC NOTE: See FORECITE F 18.56 n22.
F 1170 Note 22 Three Strikes Life Sentence For Failing To Update Sex Offender Registration Information Within 5 Days Of Birthday As Cruel And Unusual Punishment
People v. Carmony (2005) 127 CA4th 1066 held that a 25-to-life sentence for a most minimal of violations of the sex registration law (not re-registering within 5 days of his birthday after he did register as required) violates the cruel and unusual punishment clauses of the U.S. and California Constitutions. There must be some substantial current offense to trigger Three Strikes.
CALJIC NOTE: See FORECITE F 18.56 n23.
F 1170 Note 23 Sex Offender Registration (PC 290): Definition Of Residence
(See FORECITE F 18.56a.)
CALJIC NOTE: See FORECITE F 18.56 n1.