F 18.56

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F 18.56 n1 Sex Offender Registration (PC 290): Definition Of Residence.

(See FORECITE F 18.56a.)

F 18.56 n2 Sex Offender Registration (PC 290): Defendant May Have More Than One Residence.

People v. Horn (98) 68 CA4th 408 [80 CR2d 310] 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 [127 CR2d 662] [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].)

F 18.56 n3 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 (57) 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-772 for additional briefing on this issue.]

F 18.56 n4 Sex Offender Registration (PC 290) Input Needed.

Based on the number of inquiries FORECITE has received regarding charges based on the failure of a sex offender to register (PC 290), it appears that this is becoming an important area of litigation. The PC 290 violation can be filed as a second or third strike on the heels of a sex offense, most of which are serious felonies. (But see People v. Carranza (96) 51 CA4th 528 [59 CR2d 134] [failure to register is a “wobbler” and thus may be designated a misdemeanor under the court’s discretion per PC 17].) Therefore, in the future FORECITE will be addressing issues related to these cases, especially since CALJIC has no pattern instructions on this offense. (See e.g., FORECITE F 18.56 n1.) If you have issues, instructions, or briefing regarding PC 290 please let us know.

F 18.56 n5 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 n3 [interpreter required].) “Ingrained in our concept of due process is the requirement of notice.” (Lambert v. The State of California (57) 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. Sorden (2005) 36 C4th 65 [willfulness element of PC 290 may be negated by evidence that an involuntary condition—physical or mental, temporary or permanent—deprived a defendant of actual knowledge of duty to register]; People v. Johnson (98) 67 CA4th 67 [78 CR2d 795]; 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 (99) 20 C4th 249, 253 [84 CR2d 241]; see also People v. Garcia (2001) 25 C4th 744, 753 [107 CR2d 355] [defendant must have actual knowledge of sex offender registration requirement in order to violate PC 290]; People v. Edgar(2002) 104 CA4th 210, 219 [127 CR2d 662] [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 (97) 55 CA4th 1205, 1216 [64 CR2d 545]; People ex rel. Lungren v. Superior Court (96) 14 C4th 294, 312 [58 CR2d 855]; In re Christian S. (94) 7 C4th 768, 780 [30 CR2d 33]; Keeler v. Superior Court (70) 2 C3d 619, 631 [87 CR 481]; cf. Lambert v. California (57) 355 US 225, 229 [2 LEd2d 228; 78 SCt 240].)

F 18.56 n6 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.)

F 18.56 n7 Ex Post Facto Challenge To Sex Offender Registration Statute As Punitive Measure.

Using the seven-part test of Kennedy v. Mendoza-Martinez (63) 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 U.S. 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.

F 18.56 n8 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 (99) 74 CA4th 972 [88 CR2d 587] 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. No. 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-258 for the Felarca opinion.]

F 18.56 n9 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.

F 18.56 n10 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).

F 18.56 n11 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. Makes violation of this registration requirement a misdemeanor. The new provisions become effective July 1, 2002.

F 18.56 n12 Sex Offender Registration: Sua Sponte Duty To Instruct On Actual Notice And Actual Knowledge.

See Brief Bank # B-895 for briefing on this issue is available to FORECITE subscribers.

F 18.56 n13 Definition Of Domicile And Residence.

See Brief Bank # B-896 for briefing on this issue.

F 18.56 n14 Sex Offender Registration As Continuing Offense.

(See People v. Davis (2002) 102 CA4th 377 [125 CR2d 519].)

F 18.56 n15 Requirement Of Actual Duty To Inform Agency Before Leaving Jurisdiction.

(See People v. Davis (2002) 102 CA4th 377 [125 CR2d 519].)

F 18.56 n16 Sex Offender Registration: No Violation Of “Liberty Interest.”

In Connecticut Dept. of Public Safety v. Doe (2003) 538 U.S. 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.

F 18.56 n17 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 [107 CR2d 355]; see also FORECITE F 18.56c) People v. Edgar (2002) 104 CA4th 210 [127 CR2d 662] 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 [114 CR2d 331] [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].)

F 18.56 n18 Failure To Register: Whether Forgetfulness Is A Defense.

People v. Barker (2001) 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.)

F 18.56 n19 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 reregistration 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 (97) 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.)

F 18.56 n20 Sex Offender Registration (PC 290): Lifetime Registration For Oral Copulation And Not Sexual Intercourse Violates Equal Protection.

See FORECITE F 1170 Note 19.

F 18.56 n21 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.)

F 18.56 n22 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.)

F 18.56 n23 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.

F 18.56a

Sex Offender Registration (PC 290): Definition Of Residence

As used in this instruction, the term “residence” means a dwelling place of some permanence which one keeps and to which one intends to return. A residence is not a place where one rests or shelters during a trip or a transient visit.

Points and Authorities

The above instruction is adapted from the instruction quoted with approval in People v. Horn (98) 68 CA4th 408, 414 [80 CR2d 310]. People v. McCleod (97) 55 CA4th 1205 [64 CR2d 545] held that PC 290 does not require a finding that the defendant specifically intended to evade the police. McCleod also concluded that the term “residence” does not require sua sponte definition. However, in some cases it may be important to request specific definition of the term “residence” where there is a question as to exactly when the defendant changed his residence. For example, if the defendant temporarily changes his “place of abode” this may well not constitute a change of residence which triggers the notification requirement of PC 290. (See e.g., FORECITE F 18.56 n2 [registration requirement may apply to more than one residence].) “‘Residence … denotes any factual place of abode of some permanency, that is, more than a mere temporary sojourn…. [Citations.]’” (McCleod, 55 CA4th at 1217; see also People v. Velasco DEPUBLISHED (98) 66 CA4th 748 [78 CR2d 259] [defining residence as “domicile” is erroneous because defendant may have more than one residence; however, statute requires that defendant register both addresses].)

F 18.56b

Sex Offender Registration (PC 290): Elements

You may not convict the defendant of violating Penal Code section 290, willfully failing to register as a sex offender, unless all of the following are proven beyond a reasonable doubt:

1. [He] [She] suffered a qualifying sex offense for which he was required by law to register;

2. [He] [She] [resides] [attends school] [works] in the state of California;

3. [He] [She] willfully failed to register with the _____________ [law enforcement agency] in which [he] [she] [temporarily resided] [was domiciled] [attended school] [worked], within 5 working days of [coming into that [city] [county]] [[his] [her] birthday]] [of changing [his] [her] [residence] [location]].

4. When [he] [she] was paroled or released from the place where [he] [she] was confined because of the commission of a sex offense which required registration, [he] [she] was informed of [his] [her] duty to register under Penal Code section 290 by an official in charge of the place of confinement and [he] [she] signed the form required by the Department of Justice stating [his] [her] duty to register under Penal Code section 290 will be explained to [him [her].

5. In addition to being formally notified by the appropriate officers as required by Penal Code section 290, the defendant actually knew of [his] [her] duty to register during the time period of coming into that [city] [county]] [[his] [her] birthday] [changing [his] [her] [residence] [location]].

If you have a reasonable doubt as to whether one or more of the above elements was proven, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

If you have a reasonable doubt as to whether the defendant willfully failed to register with actual knowledge of the duty to do so, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

Points and Authorities

See People v. Garcia (2001) 25 C4th 744, 754 [107 CR2d 355]; see also People v. Edgar (2002) 104 CA4th 210, 219 [127 CR2d 662] [instructions given were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register]. See also FORECITE F 18.56 n5.

F 18.56c

Sex Offender Registration (PC 290): Knowledge Requirement

The burden is on the prosecution to prove beyond a reasonable doubt that the defendant had knowledge of [his] [her] duty to register as a sex offender.

If, after considering all the circumstances, you have a reasonable doubt that the defendant had knowledge of [his] [her] duty to register as a sex offender you must give the defendant the benefit of that doubt and find [him] [her] not guilty of willfully failing to register as a sex offender.

Points and Authorities

See People v. Garcia (2001) 25 C4th 744, 754 [107 CR2d 355]; People v. Edgar (2002) 104 CA4th 210, 219 [127 CR2d 662] [instructions given were erroneous in that they failed to clearly state that a conviction required actual knowledge of the duty to register]; People v. Jackson (2003) 109 CA4th 1625 [court erred in failing to instruct jury that defendant’s failure to register as sex offender must be willful]. See also FORECITE F 18.56 n5.

The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].)

Examples of such instructions are CJ 2.91 (eyewitness testimony), CJ 4.50 (alibi) and CJ 4.21 (intoxication). (CJ 2.91 and CJ 4.50 approved in Wright; CJ 4.21 approved in Saille.) The instruction proposed in the present case relates defendant’s evidentiary theory — that he acted in hot anger without reflection — to an element of the lying in wait charge — a plan or concealed purpose to surprise. (See People v. Ceja (93) 4 C3d 1134, 1142 [17 CR2d 375] [impliedly recognizing that “hot anger” may negate lying in wait].)

Because the proposed instruction is the proper subject of a pinpoint instruction, and because it follows the judicially approved form for such instructions (i.e., CJ 2.91, CJ 4.21 and/or CJ 4.50, it should be given as requested.

Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which raises a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)

F 18.56d

Sex Offender Registration (PC 290): Notification Element

The burden is on the prosecution to prove beyond a reasonable doubt that the defendant was informed of [his] [her] duty to register as sex offender by an official in charge of the place of confinement.

If, after considering all the circumstances, you have a reasonable doubt that the defendant was informed of [his] [her] duty to register as a sex offender by an official in charge of the place of confinement you must give the defendant the benefit of that doubt and find [him] [her] not guilty of willfully failing to register as a sex offender.

Points and Authorities

The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.” [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].)

F 18.56e

Sex Offender Registration (PC 290): Mailing Sufficient

A registered sex offender who mails a change-of-address notice to the police within five working days of moving has fulfilled his statutory obligation. The registrant has no duty to see that the notification is actually received by the police. Therefore, the prosecution must prove beyond a reasonable doubt that the defendant did not mail a change-of-address notice to the police within the five day period.

Any juror who has a reasonable doubt whether the prosecution has met this burden must give the defendant the benefit of that doubt and vote to acquit.

Points and Authorities

See People v. Smith (2004) 32 C4th 792.