Failure to Register as a Sex Offender

California Penal Code § [Section] 290(b) – Failing to Register as a Sex Offender

California Penal Code [CPC] §290(b)[i] – Failing to Register as a Sex Offender – Section 290(b) requires that convicted sex offenders register with the chief of police of the city in which they reside, or the sheriff of the county, if they're residing in an unincorporated area or a city that has no police department. Furthermore, the statute requires that sex offenders residing on any campus of the University of California, the California State University, or any community college register with the chief of campus police within five working days of coming into any new community or changing residence.

If you fail to register as a sex offender, or if you're convicted of failing to register more than once, you face up to three years in a state prison, a fine of as much as $10,000, or both imprisonment and a fine.

What Does California Penal Code §290(b) [Failing to Register as a Sex Offender] Prohibit?

In sum, to be guilty of Failing to Register as a Sex Offender under CPC §290(b), you must:

·       Commit an offense requiring you to register; AND,

·       Reside in a city, an unincorporated area, a city with no police department or on the campus of a university or college; AND,

·       Know you had to register and had five working days to register after moving in a way stated in Section 290(b); AND,

·       Fail to register; OR,

·       Fail to update your registration.

Defining “Failing to Register as a Sex Offender” Under California Penal Code §290(b)

To convict you under CPC §290(b), the prosecutor must prove the following beyond a reasonable doubt:

·       Previously Convicted…/Committed: You were previously convicted of, or found to have committed, an offense for which you're required to register as a sex offender; AND,

·       Residence: Your residence[ii] is in a city, an unincorporated area, a city with no police department or on the campus (or in the facilities of) a university or college in California; AND,

·       Actual Knowledge: You actually knew that you had a duty under CPC §290 to register as a sex offender and that you had to register within five working days of an event specified in Section 290(b); AND,

·       Willfully Failed To Register: You willfully[iii] failed to register with the police chief of that city, or with the sheriff of that county, or with the police chief of that campus or its facilities within five working days of coming into (or changing) your residence within that city, county or campus; OR,

·       Willfully Failed…/Update: You willfully failed to annually update your registration with the police chief of that city, or with the sheriff of that county, or with the police chief of that campus within five working days of your birthday.

Example: Defendant David has a criminal record requiring that he register as a sex offender. He moves from Oakland to Los Angeles to begin college at UCLA. David, knowing that he must inform the LA Chief of Police, notifies law enforcement of the residential change and begins classes. But, much to his shock, David is arrested and charged under CPC §290(b) two weeks later because he didn't notify the campus police chief that he was present. David swears that he didn't know he had to register. Should David be convicted of the charge?  

 

Conclusion: David resided in California and was required to register as a sex offender when he changed residence. He knew these things to be true. But David didn't willfully fail to register with UCLA police as a sex offender when he became a student because he wasn't required to do so. David would've had to register with the UCLA police chief if he'd taken residence on campus, but the facts make no mention of this being his living situation. Under these circumstances, David wasn't obligated to inform campus police of his presence. He had only to inform the LA Chief. He did so. Thus, David should be acquitted.

 

Penalties For Failing to Register as a Sex Offender Under CPC §290(b)

You face up to one (1) year in county jail[iv] and a fine of up to $1,000 (one-thousand dollars)[v] if you fail to register once after committing a non-felonious sex offense. But, as stated previously, if you've been convicted of a sex offense categorized as a Felony and fail to register, or if you're convicted more than once of Failing to Register as a Sex Offender, face up to three (3) years in a state prison,[vi] a fine of up to $10,000 (ten-thousand dollars), or both a fine and imprisonment.[vii]      

 

How Long Do I Have To Register?

 

a.   Senate Bill 384 Changes Current Law

Every person convicted of an array of sex offenses in California will be required to register as a sex offender. Current California law (the Sex Offender Registration Act) requires that all persons convicted under the Code sections described within CPC §290 must register with the state as sex offenders for the duration of their lives. But California Senate Bill (SB) 384, Ch. 541, creates much more elaborate offender designations in 2021 that can operate to the benefit of convicted persons. After 2021, the Sex Offender Registry will be broken into three tiers. Tier 1 will require registration for a minimum of ten years, while Tier 2 will require twenty, and Tier 3 will require lifetime registration. Misdemeanor convictions will allow for ten years of registration; all others will require lifetime registration, save for a number of convictions involving minor aged persons which will require five years of compliance.

For example, if you're convicted of a misdemeanor act of Sexual Battery,[viii] you will be designated a “Tier One” offender and you'll be required to register for at least ten (10) years.[ix] If, on the other hand, you're convicted of Oral Copulation With A Minor[x] and you're subsequently convicted of Lewd Or Lascivious

Conduct,[xi] you'll be designated a “Tier Two” offender. In that case, you'll be made to register for at least twenty (20) years.[xii] But, as a final example, if you were convicted of Indecent Exposure[xiii] and you're subsequently convicted of Sexual Penetration,[xiv] you will be designated a “Tier Three” offender. This is because Sexual Penetration is defined as a “violent felony” [xv] under California law, even though Indecent Exposure is nonviolent. In that case, you'd be required to register as a sex offender for your lifetime.[xvi]

 

b.   “Megan's Law”

 

Every person convicted of an array of sex offenses in California will be required to register as a sex offender. Current California law (the Sex Offender Registration Act) requires that all persons convicted under the Code sections described within CPC §290 must register with the state as sex offenders. However, California Senate Bill (SB) 384, Ch. 541, creates more elaborate offender designations in 2021. After 2021, the Sex Offender Registry will be broken into three tiers. Tier 1 will require registration for a minimum of ten years, while Tier 2 will require twenty, and Tier 3 will require lifetime registration. Misdemeanor convictions will allow ten-year registration; all others will require lifetime registration.

For example, if you're convicted of a misdemeanor act of Sexual Battery,[xvii] you will be designated a “Tier One” offender and you'll be required to register for at least ten (10) years.[xviii] If, on the other hand, you're convicted of Oral Copulation With A Minor[xix] and you're subsequently convicted of Lewd Or Lascivious

Conduct,[xx] you'll be designated a “Tier Two” offender. In that case, you'll be made to register for at least twenty (20) years.[xxi] But, as a final example, if you were convicted of Indecent Exposure[xxii] and you're subsequently convicted of Sexual Penetration,[xxiii] you will be designated a “Tier Three” offender. This is because Sexual Penetration is defined as a “violent felony” [xxiv] under California law, even though Indecent Exposure is nonviolent. In that case, you'd be required to register as a sex offender for your lifetime.[xxv]

Under “Megan's Law,” sex offenders must register with a database and notify their local communities of living in their areas. The state created a web page to summarize the obligations of persons convicted of sex offenses. The “California Megan's Law Website”[xxvi] describes the process for notifying a convicted person of the duty to register with the state, the time allowed for registration based on the date of release into the community (five days), the obligation to update information on a regular basis, the ways in which a registrant's information is presented to the public (using ZIP codes, counties, cities, and, in some cases, home addresses) and the right some offenders have to be excluded from public disclosure of their private information, as there's a rule that permits those convicted of possession of some kinds of illegal pornography to apply to have their personal information excluded from public disclosure.[xxvii] 

c.    Probation and Expungement of Pleading

 

The process of Expungement[xxviii] allows you to withdraw a plea of guilty or no contest if you've “fulfilled the conditions of probation for the entire period of probation, or” you've “been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that”[xxix] you should be permitted to withdraw your prior pleading.  

Note, however, that Expungement itself does not permit you to cease registering as sex offender.

However, many sex crime guilty pleadings cannot be expunged. For example, Expungement may be available to you if you've been convicted of Indecent Exposure[xxx] or Lewd Conduct In Public.[xxxi] But Expungement isn't possible if you've been convicted of Lewd Acts On A Child, Possession Of Child Pornography,[xxxii] or a Felony act of Statutory Rape.[xxxiii] Note that, in most cases, Expungement is a prerequisite for receipt of a Governor's pardon (see below).

Certificate Of Rehabilitation/Gubernatorial (Governor's) Pardon

You may also apply for a Certificate of Rehabilitation following conviction for a Felony offense or a Misdemeanor sex crime,[xxxiv] but only if you've resided in California for five years after the earlier of: 1) completion of your sentence; OR, 2) finishing Probation or parole. There may be an additional waiting period of two to five years, depending on the offense of which you were convicted, per CPC §4852.03.[xxxv] However, if your application for a Certificate of Rehabilitation is granted, the request will be automatically treated as a petition for a Pardon and will be sent to the Governor's desk.[xxxvi] To apply for a Certificate of Rehabilitation, submit your application to the Superior Court of your county of residence.

There are, however, people for whom a Certificate of Rehabilitation is unavailable, including “persons serving a mandatory life parole, persons committed under death sentences”[xxxvii] and those who were convicted of sex crimes like Lewd Acts On A Child and Forced Oral Copulation.[xxxviii] The denial of access to a Certificate of Rehabilitation does not, however, deny the Governor the power to issue a Pardon to you under “extraordinary circumstances.”[xxxix] A Certificate of Rehabilitation does permit you to cease registering as sex offender.

The Governor's Pardon process is, furthermore, particularly useful for persons living outside the state who wish to be relieved of a conviction incurred for committing certain sex crimes. Note, however, that there are ordinarily preconditions to considering your Pardon application, including discharge from jail or prison, and at least ten years of lawful behavior following the end of your sentence.

While the Governor has full authority over grant of pardons, you can't be pardoned if you've committed two (or more) felonies unless a majority of the justices of the California Supreme Court recommend that you be awarded the pardon. Unfortunately, since Pardon power is vested exclusively in the Governor's Office, there's no mechanism that compels the Governor to seek the state Supreme Court on these matters.[xl] If it is issued, a Governor's Pardon does permit you to cease registering as sex offender.

Defenses To California Penal Code §290(b) – Failing to Register as a Sex Offender

Three common defenses against a charge of Failing to Register as a Sex Offender under CPC §290(b) are:

You Didn't Know You Had To Register Or Update

Example: Defendant Donnie, who represented himself in court, is released after serving a sentence for a sex offense. Owing to circumstances beyond his control, he wasn't present when Judge ordered him to register as a sex offender after being released. Judge instead instructed the Court Clerk to inform him. But Donnie was never informed about the obligation owing to Court Clerk's being replaced. The new Court Clerk never learns of the instruction. Thus, Donnie doesn't register. He's arrested a month after release and charged under CPC §290(b). Donnie swears he never knew he'd been instructed to register. Should he be convicted?

Conclusion: Donnie, as a sex offender, was obligated to register when taking residence in California. He didn't do so. This is illegal. But Donnie had no idea he had to register. Since he represented himself, it was essential that Court Clerk inform Donnie of Judge's directions; Donnie had no lawyer who could accept communications from Judge on his behalf. Furthermore, as the facts don't state that Donnie is familiar with the law, it's unreasonable to expect him to be aware independently of the obligations imposed on him by the complicated sex offender statute. The court had to inform Donnie to register, were he to know to do so. Donnie should, it follows, be acquitted. He didn't know he had to register.

You Didn't Act Willfully

 

Example: Defendant Dallas moves into an apartment in Sylmar only two days before being injured and rendered unconscious in a car accident. Dallas, a sex offender, knows that he must register with the Chief of Police in Sylmar. Dallas was on his way to the Sylmar Main Station to do so when he was hospitalized. He awakens four days later and isn't permitted to contact anyone for another week. Then he's discharged. Dallas goes that same day to the Sylmar Main Station. He presents himself to police and, to his shock, he's arrested for violating CPC §290(b). Is Dallas guilty?

Conclusion: Dallas had been convicted of a sex offense. He failed to present himself to the chief of police in Sylmar within five working days of moving in and he knew that he had to do so. These facts suggest guilt. But Dallas was incapacitated by an accident and kept from contacting others while in the hospital. Dallas did not form the intent required to violate the law as a result. But if Dallas didn't fail to register on purpose, he didn't commit a crime. Therefore, Dallas should be acquitted because he didn't act willfully.

Officials Lost Your Identifying Information

 

Example: Defendant Dean moves to California and, knowing the law, discloses both private information and his Internet identifiers[xli] to the Chief of Police in Malibu, his new residence. But, unbeknownst to him, Dean's registration is lost when a police computer system failure results in the destruction of recent electronic information. He is arrested two weeks later and charged with violating CPC §290(b). Dean does not understand how he can be charged at all. Should he be convicted of the crime?

Conclusion: Dean didn't fail to do anything required by the law. It appeared he hadn't registered in a timely fashion only because of computer error. This is not something over which Dean had control, especially considering that he was never made aware of the mistake. He simply couldn't have done anything to change the situation. Thus, Dean committed none of the elements of the crime of Failing to Register as a Sex Offender. He should be acquitted because officials lost his identifying information.

Related Offenses

Note: The crimes below are described generally as “related” because they're frequently charged with CPC §290(b) and/or have common elements the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Failing to Register as a Sex Offender, including: The Habitual Sex Offender Law (CPC §§667.71(a) – (c)(13)), Personally Armed With Deadly Weapon (CPC §12022.3), Lewd Acts On A Child (CPC §288(a)), Possession Of Child Pornography (CPC §311.1(a)), Rape (CPC §261(a)), Sexual Battery (CPC §243.4), Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)), Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)), and Continuous Sexual Abuse (CPC §288.5(a)).

 

The Habitual Sex Offender Law

The Habitual Sex Offender Law (CPC §§667.71(a) – (c)(13)) establishes that those who've been convicted of at least one of the offenses in subdivision (c) of the statute and who're convicted of committing one of those offenses in another case shall be punished as required by that Code section. The law is related to Failing to Register as a Sex Offender because all persons who could violate CPC §667.71 are obligated to register as sex offenders. Failure to do so gives rise to the possibility of charges under both sections in the same trial.

If you're punished under CPC §§667.71, the penalty may be:

·       A term of life in a state prison.[xlii]

 

Note: Probation may not be granted to any person punished under CPC §667.71, nor may the imposition or execution of any sentence be suspended.

California Criminal Jury Instructions – The Habitual Sex Offender Law

To convict you under CPC §§667.71(a) – (c)(13), the prosecutor must prove the following beyond a reasonable doubt:

You have been previously convicted of one or more of the offenses specified in subdivision (c) of CPC §667.71 and you have been convicted in your current case of committing one of the same offenses.

Example: Defendant Deane has a conviction on his record for committing the crime of “Seducing and Taking a Minor” in Nevada. The crime required hiring, persuading, enticing, decoying, or seducing (by false promises, misrepresentations, or the like) any minor under the age of fourteen years in order to commit lewd acts on that minor. Now Deane has been convicted of a California charge of Kidnapping a minor. It requires the same acts. (The charge was filed under CPC §207(b).) Prosecutors seek to punish him under “The Habitual Sex Offender Law” (CPC §667.71(c)(9)) but Deane insists that he isn't subject to the law because he has on his record an out of state charge that doesn't exist in California. Is he correct?

Conclusion: Deane committed a Nevada offense which is elementally the same as Kidnapping under section (b) of CPC §207. He was convicted of the charge. Now Deane has been convicted in California of an offense that is only different in name. Penal Code §667.71(c)(13) anticipates this situation. “An offense committed in another jurisdiction that includes all of the elements of an offense specified in” CPC §667.71 is punishable under the Code Section, according to the statute. Thus, the Nevada offense exists effectively in California, even though it doesn't exist by name. This, in turn, makes Deane eligible for sentencing as a habitual sexual offender. He is incorrect. 

Personally Armed With Deadly Weapon

The crime of Personally Armed With Deadly Weapon (CPC §12022.3) occurs whenever anyone commits (or attempts[xliii]) one of statute's specified sexual offenses and uses, or is armed with, a firearm or deadly weapon at the time. The crime is related to Failing to Register as a Sex Offender because violation of any of the statutes listed in CPC §12022.3 produces the duty to register as a sexual offender.

 

If you're convicted of Personally Armed With Deadly Weapon, the penalty may be:

·       A term of up to ten (10) years in a state prison.[xliv]

Note: Terms imposed under CPC §12022.3 are to be served in addition to the sentence you receive for your underlying offense.

You can find more information in the Assault With A Deadly Weapon section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Personally Armed With Deadly Weapon

To convict you under CPC §12022.3,[xlv] the prosecutor must prove the following beyond a reasonable doubt:

You were found guilty of committing or attempting one of the crimes listed in the statute. Additionally, you were personally armed with a firearm or a deadly weapon during in the commission or attempt.

Example: Defendant Davida, a sixty-year-old adult, begins an online relationship with seventeen-year-old Victim Valerio. Davida eventually convinces Valerio to meet her in person. Then, at their meeting, Davida persuades Valerio to permit her to perform oral sex on him in the front seat of her car. They're caught in the act by law enforcement. When Davida's locked trunk is opened and searched, police find a pistol. Based on the presence of the firearm, Davida is charged under CPC §12022.3(a). Is Davida guilty?

Conclusion: Davida committed a crime formerly punished as Oral Copulation On A Minor (CPC §288a). It is listed in CPC §12022.3. She also had a firearm in her vehicle. These are, on the surface, elements of the crime. But Davida had to be “personally armed” while committing the offense in order to violate the law. Her firearm was locked in her trunk, well outside her immediate reach in the front seat, even if she had the legal right to access her trunk. She also never so much as indicated to Valerio that she had the weapon, much less used it to compel Valerio to participate in a sex act, which is the behavior the statute means to criminalize. Therefore, since Davida can be said neither to have been armed when with Valerio nor to have used her pistol in the commission of a crime, she cannot be convicted under §12022.3(a).

Lewd Acts On A Child

The crime of Lewd Acts On A Child (CPC §288(a)) occurs when an adult engages in a sex act with a minor under fourteen.  The act must occur “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires”[xlvi] of yourself or the child.

Section 288(a) is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant, so Lewd Acts On A Child is a “wobbler”[xlvii] offense in California. The crime is related to Failing to Register as a Sex Offender because the offense gives rise to the duty to register.

If you're convicted of Lewd Acts On A Child, the penalty may be:

·       A term of up to eight (8) years in a state prison;[xlviii] OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both a fine and imprisonment;[xlix] AND,

·       The duty to register as a sex offender.[l]

Note: Section 288(a) also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required.[li]

You can find more information in the Lewd Acts On A Child section of the Kann California Defense Group's website. Feel free to contact the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Lewd Acts On A Child

To convict you under CPC §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. You acted intending to gratify your sexual desires or the desire of the child. Finally, the child was under age fourteen at the time of the act.

 

Example: Defendant Douglass begins living with his granddaughter, Victim Vera, and his Eldest Daughter, Vera's mother, after an estrangement. Douglass begins volunteering almost immediately to babysit. Eldest Daughter doesn't trust Douglass but, after a time, she allows him to do so one evening. Days later, while cleaning Douglass's room, Eldest Daughter comes across Douglass's journal. Still distrusting of Douglass, she reads it. Inside, Douglass records a graphic description of being sexually gratified by massaging the eight-year-old's feet while babysitting. Eldest Daughter reports Douglass. He's arrested and charged under CPC §288(a). Douglass defends himself by pointing out that there was no sexual penetration of Vera; thus, he says, he committed no crime. Is he correct or should he be convicted?

Conclusion: Douglass, an adult, willfully touched the body of a minor under the age of fourteen. He did so to gratify sexual desires. These are the elements of the crime. While Douglass seems to believe that he had to have performed some specified sex act, no sexual penetration or act is required to violate CPC §288(a). “Lewd acts,” for purposes of the statute, are those from which sexual pleasure is derived by mere contact with the minor. Douglass, it follows, did everything required to violate the law simply by being sexually gratified when massaging Vera's feet. His argument is incorrect; he should be convicted.

Possession Of Child Pornography

Possession Of Child Pornography (CPC §311.1(a)) involves sending, bringing, or causing obscene matter to be sent or brought into the state. An alternative form involves possessing, preparing, publishing, producing, developing, duplicating, or printing obscene matter. The law is broken if you offer to distribute obscene matter to someone else, or if you offer to distribute, show or exchange obscene matter with someone else. You must also know the nature of material and that it shows someone under eighteen participating in, or simulating, a sex act.

CPC §311.1(a) is a “wobbler”[lii] offense in California, meaning that it can be charged as Misdemeanor or a Felony, depending on the facts of your case. Possession of Child Pornography creates the duty to register as a sex offender in this state, thus relating the offense to Failing to Register as a Sex Offender.

If you're convicted of the Felony form of Possession Of Child Pornography, the penalty may be:

·       A term of up to three (3) years in a state prison[liii]; OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both imprisonment and a fine; [liv] AND,

·       The duty to register as a sex offender.[lv]

Note: A person who possesses obscene matter for his or her own personal use is not guilty of violating CPC §311.1(a) and material isn't considered “obscene” if all the persons under eighteen in the material are legally emancipated or if it only shows lawful conduct between spouses.[lvi]

More information can be found in the Child Pornography section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Possession Of Child Pornography

 

To convict you under CPC §311.1(a), the prosecution must prove the following beyond a reasonable doubt:

You sent, brought, or caused obscene matter to be sent or brought into the state or you possessed, prepared, published, produced, developed, duplicated, or printed obscene matter or you offered to distribute obscene matter to someone, or you distributed, or showed or exchanged obscene matter with someone. You knew the sexual nature of material and, finally, you knew that the material showed a person under eighteen personally participating in, or simulating, sex acts.

Example: Defendant Dane is part of an online message board community that focuses on sharing images of adults dressed as children and infants while participating in sex acts. He downloads images from the message board and keeps them on his computer. Sometimes he distributes images. Other times he posts links to pictures. He also offers to trade pictures. This is how he comes in contact with Illegal Trader, who trades several pictures with Dane. Unbeknownst to Dane, Illegal Trader is in possession of images featuring actual underaged persons engaged in sex. Police search Illegal Trader computer when Illegal Trader is arrested sometime later. They find Dane's name and address and arrest him as well. Now Dane has been charged under CPC §311.1(a). Is he guilty of the crime?      

Conclusion: Dane committed every variation of conduct punished under §311.1(a). He imported images, distributed them, exchanged them and even personally possessed them. He also knew that the material was sexual in nature; that was part of the message board's theme, after all. But by that same token Dane wouldn't expect to receive images of actual minors on that message board. The theme of the board involved “adults dressed as children and infants while participating in sex acts.” Dane apparently dealt exclusively in those images. The facts state nothing indicating that Dane ever possessed anything else before his brief association with Illegal Trader. In fact, Dane never even sought images of real minors; he traded with Illegal Trader as though Illegal Trader had been nothing more than another adult seeking images of adults. These facts create a reasonable doubt regarding Dane's knowledge about the age of the persons in Illegal Trader's pictures. All reasonable doubts must be resolved in the defendant's favor, in this country. Dane, therefore, should be acquitted. He didn't know the illegal material involved minors participating in sex.   

Rape

 

California's law against Rape (CPC §261(a)) applies when anyone has sexual intercourse with someone without that person's consent.

Absence of consent can be overcome in a number of illegal ways, including use of force or threats. The statute lists several circumstances in which sexual intercourse is considered rape, such as sexual intercourse with someone who's unconscious owing to alcohol or drug intoxication. Rape is related to Failing to Register as a Sex Offender because Rape, a violent sexual felony, always generates the duty   to register as a sex offender.         

If you're convicted of Rape, the penalty may be:

·       A term of up to eight (8) years in a state prison;[lvii] OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both a fine and imprisonment;[lviii] AND,

·       The duty to register as a sex offender.[lix]

Note: A Rape conviction counts for purposes of California's “Three Strikes” system.[lx]

More information can be found in the California Rape Attorneys section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your calls go directly to a lawyer. We guarantee it.

California Criminal Jury Instructions – Rape

To convict you under CPC §261(a)(2), the prosecution must prove the following beyond a reasonable doubt:

 

You had sexual intercourse with someone who didn't consent and accomplished the intercourse using threats, fear, or force directed at that person or at someone else.

 

Example: Defendant Delaney, married to Victim Vi, becomes enraged with his wife one night when she refuses his request for sex after they've been quarreling. Delaney tells Vi that it's her “womanly duty to satisfy” her husband and forces her to engage in sex with him. Vi later complains to Sister, who, in turn, convinces Vi to go to police. Delaney is arrested and charged under CPC §261(a)(2). He defends himself by saying that wives consent to sex with their husbands simply by virtue of being married. Is he right?   

Conclusion: Delaney forced Vi to have sexual intercourse with him. These are elements of the crime. The only remaining question is whether, in effect, a husband can rape his wife. The answer? Yes, he can. The California Criminal Jury Instructions applicable to Rape make it clear that “[e]vidence that the defendant and the [victim] […] were married […] is not enough by itself to constitute consent.”[lxi] Thus, considering that Vi refused Delaney's request for sex (a request made after an argument, no less), it's reasonable to assume that Delaney didn't have the consent of his wife. Therefore, although Delaney might believe that he was entitled to Vi's sexual favors, Delaney is incorrect. He should be convicted of violating §261(a)(2).     

Sexual Battery

Sexual Battery (CPC §243.4(a)) occurs whenever anyone “touches an intimate part of another person while that person is unlawfully restrained.” The restraint can originate with you or an accomplice but it can only violate this Section “if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.”[lxii]

                                            

Since the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of your case, Sexual Battery is a “wobbler”[lxiii] offense in California. The crime is related to Failing to Register as a Sex Offender because a conviction creates the duty to register as a sex offender and the possibility of being prosecuted for failing to do so.

 

If you're charged with the Felony form of Sexual Battery, the penalty may be:

·       A term of up to four (4) years in a state prison; OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both a fine and imprisonment;[lxiv] AND,

·       The duty to register as a sex offender.[lxv]

Note: “Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.”[lxvi]

More information on Sexual Battery can be found on the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Sexual Battery

 

To convict you under CPC §243.4(a), the prosecution must prove the following beyond a reasonable doubt:

You or an accomplice unlawfully restrained someone and touched an intimate part of that person's body or made that person touch him- or herself or touch someone else. You touched that person against his or her will and did it for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

 

Example: Defendant Dee doesn't deny holding Victim Vic at knifepoint after the naked man emerged from the shower. She doesn't deny steering him into a corner from which he couldn't escape without taking the chance of being stabbed. She's even willing to describe this act as a form of restraint and she admits stealing some of Vic's property after cornering him and is. Dee nonetheless insists that she can't be found guilty of a charge of Sexual Battery under CPC §243.4(a). Prosecutor disagrees. Who is right?    

Conclusion: Dee created a constructive form of restraint on Vic when she put him in a corner and gave him the choice between escape and injury. This is, however, the only element of the offense present in these facts. Dee didn't make Vic touch himself or someone else. This negates the question of what the purpose of the attack would've been, not to mention the issue of whether Vic would've been touched against his will. There was Sexual Battery because no Battery occurred. Therefore, while Dee is clearly guilty of several offenses, she is correct. She should be acquitted of charges stemming from §243.4(a).

Contacting Minor With Intent To Commit Certain Felonies

Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)) only occurs when an adult contacts a minor with the intent of violating one of the laws listed in the statute, all of which are felonies. The statute lists fifteen offenses. You must know “or reasonably should know that the” person you've contacted is a minor in order to violate Section 288.3(a).[lxvii] The crime is related to Failing to Register as a Sex Offender because a Contacting Minor With Intent To Commit Certain Felonies conviction creates both the duty to register and the possibility of being prosecuted for failing to do so.

All violations of CPC §288.3(a) are punished as attempts at the committing the named felonies. If you're convicted of an attempted violation of one of listed crimes and the statute creating the original offense doesn't create a specific attempt punishment, the penalty may be:

·       A term of up to three (3) years in a state prison;[lxviii] OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both a fine and imprisonment;[lxix] AND,

·       The duty to register as a sex offender.[lxx]

Note: “Contacting or communicating with a minor includes direct and indirect contact or communication.”[lxxi]

California Criminal Jury Instructions - Contacting Minor With Intent To Commit Certain Felonies  

To convict you under CPC §288.3(a), the prosecution must prove the following beyond a reasonable doubt:

You contacted, communicated with, or attempted to contact or communicate with a minor. When you did so, you intended on committing one of the enumerated offenses with that minor. Lastly, you knew or reasonably should've known that the other person was a minor.

 

Example: Defendant Darian, aged twenty, knows that Parents of Victim Veronica, his seventeen-year-old girlfriend, have forbidden Veronica from seeing him because they also know that he and Veronica have had sexual relations. But Darian is determined to continue their sexual relationship. He sends texts and emails to Veronica, all of which plead from her to come to his apartment to have sex. Veronica, while tempted, doesn't reply. Parents become aware of the contacts, however, and report Darian for violating CPC §288.3(a). Darian defends himself by pointing out that he only attempted to meet with Veronica; they didn't have intercourse. Should Darian be convicted of the charge?

Conclusion: Darian attempted to contact a minor in order to have sex. While Darian believes that he had to meet with Veronica to violate the statute, he is in fact wrong; all violations of §288.3(a) are punished as attempts at named offenses. Darian is, to this extent, guilty. He also knew that Veronica was a minor. These are elements of the crime. But Darian attempted what would have been a misdemeanor act of Statutory Rape (CPC §261.5(b)) (because he was only three years older than Veronica at the time of the intended sex act). This offense is not covered by the statute. In fact, Darian's effort was, by definition, not even an effort to contact a minor in order to commit a felony. Thus, Darian should be acquitted.

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) makes it illegal to arrange to meet with a minor in order to expose your genitals, pubic area or your anus, or to arrange a meeting in order to engage in lewd and lascivious conduct. Unlike similar offenses, CPC §288.4(a)(1) makes it a crime to arrange a meeting with someone you only assume to be a minor. The crime creates a duty to register as a sex offender, an obligation which can result in a charge of Failing to Register as a Sex Offender.

If you're convicted of Arranging Meeting With Minor For Lewd Purpose, the penalty may be:

·       A term of up to one (1) year in a state prison; OR,

·       A fine of up to $5,000 (five-thousand dollars); OR,

·       Both a fine and imprisonment;[lxxii] AND,

·       The duty to register as a sex offender.[lxxiii]

Note: If you arrange to meet with a minor and actually arrive at the location at or near the arranged time, you become eligible to receive up to four (4) years in a state prison[lxxiv] and a fine of up to $10,000 (ten-thousand dollars).[lxxv]

California Criminal Jury Instructions - Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You arranged a meeting with a minor or a person you believed to be a minor. You were motivated by an unnatural or abnormal sexual interest in children when you arranged the meeting. Finally, you intended to expose your genitals, or your pubic or rectal area, or to have the minor expose these, or you intended to engage in lewd or lascivious behavior at the meeting.

Example:  Thirty-year-old Defendant Dany meets Victim Venera, whom he believes to be fifteen, in an online chat room. He communicates his desire to have oral sex with her. She agrees and gives him an address that she claims to be her home. Dany arrives, speaks to Venera through the door, concludes that he has the right address and enters the home – only to encounter TV Show Host. Dany runs from the scene. He's tackled on the lawn, arrested, and charged with violating §288.4(a)(1). Dany defends himself by pointing out that he never saw Venera and doesn't even know if Venera exists. Is he guilty? 

Conclusion: Dany arranged to meet with a person he assumed to be a minor. Assuming that law enforcement can produce the person known to Dany as “Venera,” it will be fairly easy to establish that Dany was in contact was an actual human being. He also communicated his desire to engage in lewd acts when he communicated with Venera (establishing that he was motivated by a sexual interest in minors), then went to what he believed to be her house in order to fulfill that desire, and entered only after he'd communicated with Venera and concluded that she was inside the house. These facts go to the elements of the crime. It wasn't necessary for Dany to see Venera in order to violate the statute. He needed only to arrange a meeting with her for lewd purposes. This he did. Dany, it follows, should be convicted of the crime.

Continuous Sexual Abuse

 

The crime of Continuous Sexual Abuse (CPC §288.5(a)) occurs when anyone living with, or having regular access to, a minor child under fourteen commits three or more lewd and lascivious acts [as defined in Sections 288 or 1203.066] with that minor over a period of three or more months. The crime is related to Failing to Register as a Sex Offender because both Continuous Sexual Abuse obligates an offender to register, creating the possibility of a charge under CPC §290 for failing to do so.

If you're convicted of Continuous Sexual Abuse, the penalty may be:

·       A term of up to sixteen (16) years in a state prison;[lxxvi] OR,

·       A fine of up to $10,000 (ten-thousand dollars); OR,

·       Both a fine and imprisonment;[lxxvii] AND,

·       The duty to register as a sex offender.[lxxviii]

Note: The statute doesn't require sexual penetration for violation and “[a[ctually arousing, appealing to, or gratifying the lust, passions, or sexual desires of” the minor or yourself isn't “required for lewd or lascivious conduct.”[lxxix]

 

California Criminal Jury Instructions – Continuous Sexual Abuse

 

To convict you under CPC §288.5(a), the prosecution must prove the following beyond a reasonable doubt:

You lived in the same home with, or had recurring access to, a minor. You willfully engaged in three or more acts of sexual conduct or lewd or lascivious conduct as defined in Sections 288 or 1203.066 with that minor. Finally, three or more months passed between the first and last acts, and the minor was under age fourteen at the time.

 

Example: Nineteen-year-old Defendant Diego pays to have a sexual relationship with Victim Vicca, his thirteen-year-old neighbor. The relationship lasts seven months. They have sexual relations dozens of times over five of those months. Vicca is under fourteen the whole time. When Vicca tells School Counselor about the relationship, police are informed. Diego is arrested and charged with crimes including a violation of CPC §288.5(a). Diego claiming that his relationship with Vicca was consensual; thus, he says, there was no “abuse.” Is Diego correct or should he be convicted of this accusation?  

 

Conclusion: Diego had recurring access to a minor under the age of fourteen. He engaged in dozens in sex acts with minor when he had only to engage in three to fulfill an element of the offense. These sex acts, broadly a form of lewd and lascivious conduct, are covered by Section 288. The facts make it clear that the acts continued for longer than months, additionally, and that Vicca was under fourteen the entire time. These are the elements of the crime. It's essential to recall that a person under eighteen can't consent to sex in California. It doesn't matter if Vicca agreed to take Diego's money; she could not consent, no matter the arrangement. Prostitution is, furthermore, illegal; it cannot be the basis of a “consensual” relationship either. Vicca, it follows, couldn't consent to having a sexual relationship with Diego, irrespective of what they might have believed. This means that none of the acts in which Diego engaged with Vicca could be described as consensual. Thus Diego is incorrect. He should be convicted.  

 

What Can I Do If I'm Charged With Failing To Register As A Sex Offender?

 

The State of California treats Failing to Register as a Sex Offender as a serious offense. If you're charged with Failing to Register as a Sex Offender, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

 

Remember, a professional criminal defense attorney may be able to:

 

·       Negotiate a lesser charge in a plea bargain;

·       Reduce your sentence;

·       Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Failing to Register as a Sex Offender, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Defense Group today to schedule your