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    Criminal Defense Division

    Penal Code § 290 PC – Failure to Register as a Sex Offender in California

    Penal Code 290 PC -- The crime of "failure to register as a sex offender" LEGAL ANALYSIS

    Penal Code § 290 PC is a California law that requires individuals convicted of certain crimes, primarily sex offenses, to register as sex offenders with their local authorities. Registration must be renewed every five years and whenever an offender changes their residence.

    Failure to register as a sex offender in California is typically charged as a misdemeanor if the underlying sex crime was a misdemeanor, or a felony if the underlying sex crime was a felony.

    Misdemeanor failure to register
    Felony failure to register
    • formal probation,
    • 16 months, 2 year, or 3 years in prison, and/or
    • up to $10,000

    Examples of PC 290 violations are:

    • a former high school teacher who was convicted of Penal Code 261.5 statutory rape, for having sex with a teenage student, moves to a new city and decides not to register her new address with the authorities.
    • a man who was convicted of California rape after a date rape incident in college stops registering annually because he wants to put that chapter of his life behind him.
    • a former gang member who was convicted of human trafficking under California Penal Code 236.1 decides not to register after a move so that his new neighbors won’t mistakenly think he is a pedophile.

    The most common defense for fighting PC 290 charges is that the defendant did not willfully fail to register.

    Below our California criminal defense attorneys discuss what you need to know about failing to register as a sex offender. Click on a topic to jump to that section.

    Police arresting man for failure to register as a sex offender under Penal Code 290 PC

    It is a California crime to violate the sex offender registration requirements.

    1. Definition

    Penal Code 290 PC is the California statute that makes it a crime for a sex offender to fail to register as one with the local authorities willfully.1

    A person is a “sex offender” if he gets convicted of one of the sex crimes listed in PC 290. (Examples include sexual assault, child molestation, child pornography, and other types of sexual abuse.)

    A prosecutor must prove four things in order to convict a defendant under this public safety statute successfully. These are that the accused:

    1. was previously convicted of a California sex crime for which registration was required under Penal Code 290c PC,
    2. resided in California,
    3. knew he had a duty to register as a sex offender, and
    4. willfully failed to register or update his registration with the sheriff’s office.2

    The purpose of section 290 is to assure that persons convicted of sex crimes will be readily available for police surveillance at all times. This is necessary because the California Legislature has found them likely to commit similar offenses in the future.3

    Note that questions often arise under this statute on:

    1. the meaning of residence,
    2. the knowledge element,
    3. the willfulness element, and
    4. when and for how long a person must register.

    Residence

    For purposes of PC 290, “residence” means one or more addresses at which a person regularly resides. This includes a shelter or structure that can be located by a street address, including recreational and other vehicles.4

    Note that registration is also required of transients under this statute. A “transient” means a person who has no residence.5 While transients may not be able to provide authorities with an address to a residence, they have a duty to inform the police of their general whereabouts.6

    Knowledge

    To be convicted of failure to register as a sex offender, a defendant must have actual knowledge of the duty to register as a sex offender.7

    Note that this requirement places duties on authorities. For example, in instances where an inmate is released on parole, he must be informed of his duty to register by the official in charge of the place of confinement.8

    Note though that a defendant cannot try to avoid this element by saying that he forgot about his duty to register. This means forgetfulness is not a defense to a charge under Penal Code 290.9 As one California court has stated:

    “Although forgetfulness may temporarily or momentarily negate the immediate awareness that one must undertake a given action at a given time, it does not alter or affect the underlying knowledge that such action is required.”10

    But note that the court has stated that mental weakness might be a defense to a PC 290 charge.11 This fact means that forgetfulness could be a valid defense in a situation where it has some type of medical basis (e.g., Alzheimer’s or senility).

    Willfulness

    Someone commits an act “willfully” when he does it willingly or on purpose.

    It is not necessary that the defendant intended to break the law.12

    When and how long for registration

    Note that once a sex offender registers with local authorities, this registration has to be renewed:

    1. every year, within five working days of the person’s birthday, and
    2. every time the person moves to a new address.13

    Transient sex offenders must register once every 30 days in addition to the annual birthday registration.

    Note that California Senate Bill (SB) 384 created a three-tier sex offender registry that sets forth the period of time for which a sex offender has to register as such. Tier three offenders represent those convicted of the most serious sex offenses. According to SB 384:

    • tier three offenders have to register for life,
    • tier two offenders must register for a minimum of twenty (20) years, and
    • tier one offenders must register for a minimum of ten (10) years.

    2. Defenses

    If a person is accused of violating registration laws, then he can challenge the accusation by raising a legal defense. Good criminal defense lawyers may be able to get a charge reduced or even dismissed.

    Three common defenses to PC 290 accusations are:

    1. no willful act
    2. authorities lost registration information, and/or
    3. No knowledge

    No willful act

    Recall that an accused is only guilty under this code section if he willfully failed to register as a sex offender. This means it is always a legal defense for an accused to show that he did not act willingly or on purpose. For example, perhaps an offender did not register because he was hospitalized for an illness.

    Authorities lost registration information

    Under this defense, a convicted sex offender would argue that he sent all of his registration information into the police, but law enforcement lost it. The strength of the defense rests with whether or not the accused has evidence that he did in fact take all steps required to be a registered sex offender.

    No knowledge

    Recall that under PC 290 a prosecutor must prove that a defendant knew of his duty to register as a sex offender. It is a strong defense, therefore, for an accused to show that he had no knowledge of a duty to register. For example, perhaps a judge or lawyer failed to clearly articulate this duty and the defendant did not understand his registration requirements.

    Inmate in jail cell clutching the cell bars - failure to register as a sex offender can lead to jail or prison time in California

    A violation of PC 290 can result in a fine and/or jail time.

    3. Penalties

    The penalties for failing to register as a sex offender depend on whether the original sex offense the offender committed was a misdemeanor or a felony.

    If convicted of a sex crime that is a misdemeanor, then failure to register is also a misdemeanor under state law.14 The possible penalties include:

    • misdemeanor (or summary probation),
    • imprisonment in the county jail for up to one year, and/or
    • a maximum fine of $1,000.15

    If convicted of a sex crime that is a felony, or if prior convictions of violating PC 290, then failure to register is a felony.16 The possible penalties include:

    • felony (or formal) probation,
    • imprisonment in state prison for 16 months, two years, or three years, and/or
    • a maximum fine of $10,000.17

    4. Immigration Consequences

    A PC 290 conviction, on its own, will generally have no negative immigration consequences.

    Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

    The major categories of “deportable crimes” or “inadmissible crimes” are:

    • crimes of moral turpitude,
    • aggravated felonies,
    • controlled substances (drug) offenses,
    • firearms offenses, and
    • domestic violence crimes.18

    A violation of PC 290 does not fall into one of these categories. However, note that if the defendant’s underlying sex-related charge does, he may face negative immigration consequences.

    5. Expungements

    A person convicted under PC 290 can try to get the offense expunged.

    Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.19

    One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

    As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:

    1. successfully completed probation (either felony probation or misdemeanor probation), and
    2. is not currently:
    • charged with a criminal offense,
    • on probation for a criminal offense, or
    • serving a sentence for a criminal offense.20

    This means that once a defendant has successfully completed probation for violating PC 290 (and his underlying offense), or serving a jail term for the same, he may begin trying to get the crime expunged.

    Note, though, that even if the offense is expunged, the person will still have to register as a sex offender.

    man handling a pistol

    One may lose access to gun ownership and/or possession if convicted as a felon in California.

    6. Gun Rights

    A conviction under Penal Code 290, on its own, may have an effect on the convicted party’s gun rights. It all depends on whether the crime is charged as a misdemeanor or a felony.

    The following people are generally prohibited from acquiring or possessing a gun in California:

    1. felons (that is, anyone convicted of any felony offense in any jurisdiction),
    2. persons who are addicted to narcotics,
    3. persons with two or more convictions under Penal Code 417, California’s law against brandishing a weapon,
    4. persons convicted of certain misdemeanor offenses (such as corporal injury on a spouse, a violation of Penal Code 273.5),
    5. persons who suffer from mental illness, and
    6. people under 18 (people under 21 may not purchase a gun).

    Given the first category above, if an offender’s PC 290 charge is a felony, then a conviction would mean he would have to give up any gun ownership and possession rights.

    7. Related Crimes

    There are three laws related to the failure to register as a sex offender. These are:

    1. habitual sex offender law – PC 667.71,
    2. use of a firearm in the commission of a sex crime – PC 12022.3, and
    3. lewd acts with a minor child – PC 288.

    Habitual sex offender law – PC 667.71

    California Penal Code 667.71 PC is the California statute criminalizing habitual sexual offenders.

    Under this statute, a habitual sexual offender is any person that is convicted of a certain sex crime and then is later convicted of the same sex crime or another particular sexual offense.21

    PC 667.71 applies to sex crimes like:

    A habitual sexual offender is guilty of a felony. The crime is punishable by imprisonment in the state prison for 25 years to life.22 Probation is generally prohibited.23

    Use of a firearm in the commission of a sex crime – PC 12022.3

    Penal Code 12022.3 PC is the California statute that creates a firearm sentencing enhancement for anyone who uses or possesses a gun during the commission of a certain sex offense.24

    A “certain sex offense” includes (but is not limited to):

    1. rape, per PC 261,
    2. spousal rape, per PC 262, and
    3. sodomy, per PC 286.

    If a defendant uses or possesses a gun during a sex crime, then in addition and consecutive to his sentence for the underlying sex offense he faces:

    • three, four, or ten years for using a gun or a deadly weapon25, or
    • one, two, or five years for being armed with a firearm or a deadly weapon.26

    Lewd acts with a minor child – PC 288

    Penal Code 288 PC is the California statute that makes it a crime for a person to commit a “lewd act” with a minor child.27

    A person commits a “lewd act” when he either:

    1. touches a child for sexual purposes, or
    2. causes a child to touch him/herself or someone else for a sexual purpose.28

    The specific penalties for violating PC 288 will vary depending on:

    1. the age of the child,
    2. whether the lewd act was accomplished by force, violence, duress, or threats,
    3. whether there was a pattern of lewd acts, and
    4. in some cases, the age of the defendant.

    Note, though, that penalties may very well include imprisonment in a county jail or the state prison for several years.

    Additional Reading

    For more in-depth information, refer to these scholarly articles:

    Legal References:

    1. California Penal Code 290 PC. The full language of the statute reads:

      (a) Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act.

      (b) Every person described in subdivision (c), for the period specified in subdivision (d) while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall register with the chief of police of the city in which the person is residing, or the sheriff of the county if the person is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if the person is residing upon the campus or in any of its facilities, within five working days of coming into, or changing the person’s residence within, any city, county, or city and county, or campus in which the person temporarily resides, and shall register thereafter in accordance with the Act, unless the duty to register is terminated pursuant to Section 290.5 or as otherwise provided by law.

      (c) (1) The following persons shall register:

      Every person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape, or any act punishable under Section 286, 287, 288, or 289 or former Section 288a, Section 207 or 209 committed with intent to violate Section 261, 286, 287, 288, or 289 or former Section 288a, Section 220, except assault to commit mayhem, subdivision (b) or (c) of Section 236.1, Section 243.4, Section 261, paragraph (1) of subdivision (a) of former Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 287, 288, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, or former Section 288a, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the offenses described in this subdivision; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the offenses described in this subdivision.

      (2) Notwithstanding paragraph (1), a person convicted of a violation of subdivision (b) of Section 286, subdivision (b) of Section 287, or subdivision (h) or (i) of Section 289 shall not be required to register if, at the time of the offense, the person is not more than 10 years older than the minor, as measured from the minor’s date of birth to the person’s date of birth, and the conviction is the only one requiring the person to register. This paragraph does not preclude the court from requiring a person to register pursuant to Section 290.006.

      (d) A person described in subdivision (c), or who is otherwise required to register pursuant to the Act shall register for 10 years, 20 years, or life, following a conviction and release from incarceration, placement, commitment, or release on probation or other supervision, as follows:

      (1) (A) A tier one offender is subject to registration for a minimum of 10 years. A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

      (B) This paragraph does not apply to a person who is subject to registration pursuant to paragraph (2) or (3).

      (2) (A) A tier two offender is subject to registration for a minimum of 20 years. A person is a tier two offender if the person was convicted of an offense described in subdivision (c) that is also described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, Section 285, subdivision (g) or (h) of Section 286, subdivision (g) or (h) of Section 287 or former Section 288a, subdivision (b) of Section 289, or Section 647.6 if it is a second or subsequent conviction for that offense that was brought and tried separately.

      (B) This paragraph does not apply if the person is subject to lifetime registration as required in paragraph (3).

      (3) A tier three offender is subject to registration for life. A person is a tier three offender if any one of the following applies:

      (A) Following conviction of a registerable offense, the person was subsequently convicted in a separate proceeding of committing an offense described in subdivision (c) and the conviction is for commission of a violent felony described in subdivision (c) of Section 667.5, or the person was subsequently convicted of committing an offense for which the person was ordered to register pursuant to Section 290.006, and the conviction is for the commission of a violent felony described in subdivision (c) of Section 667.5.

      (B) The person was committed to a state mental hospital as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.

      (C) The person was convicted of violating any of the following:

      (i) Section 187 while attempting to commit or committing an act punishable under Section 261, 286, 287, 288, or 289 or former Section 288a.

      (ii) Section 207 or 209 with intent to violate Section 261, 286, 287, 288, or 289 or former Section 288a.

      (iii) Section 220.

      (iv) Subdivision (b) of Section 266h.

      (v) Subdivision (b) of Section 266i.

      (vi) Section 266j.

      (vii) Section 267.

      (viii) Section 269.

      (ix) Subdivision (b) or (c) of Section 288.

      (x) Section 288.2.

      (xi) Section 288.3, unless committed with the intent to commit a violation of subdivision (b) of Section 286, subdivision (b) of Section 287 or former Section 288a, or subdivision (h) or (i) of Section 289.

      (xii) Section 288.4.

      (xiii) Section 288.5.

      (xiv) Section 288.7.

      (xv) Subdivision (c) of Section 653f.

      (xvi) Any offense for which the person is sentenced to a life term pursuant to Section 667.61.

      (D) The person’s risk level on the static risk assessment instrument for sex offenders (SARATSO), pursuant to Section 290.04, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.

      (E) The person is a habitual sex offender pursuant to Section 667.71.

      (F) The person was convicted of violating subdivision (a) of Section 288 in two proceedings brought and tried separately.

      (G) The person was sentenced to 15 to 25 years to life for an offense listed in Section 667.61.

      (H) The person is required to register pursuant to Section 290.004.

      (I) The person was convicted of a felony offense described in subdivision (b) or (c) of Section 236.1.

      (J) The person was convicted of a felony offense described in subdivision (a), (c), or (d) of Section 243.4.

      (K) The person was convicted of violating paragraph (2), (3), or (4) of subdivision (a) of Section 261 or was convicted of violating Section 261 and punished pursuant to paragraph (1) or (2) of subdivision (c) of Section 264.

      (L) The person was convicted of violating paragraph (1) of subdivision (a) of former Section 262.

      (M) The person was convicted of violating Section 264.1.

      (N) The person was convicted of any offense involving lewd or lascivious conduct under Section 272.

      (O) The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 286.

      (P) The person was convicted of violating paragraph (2) of subdivision (c) or subdivision (d), (f), or (i) of Section 287 or former Section 288a.

      (Q) The person was convicted of violating paragraph (1) of subdivision (a) or subdivision (d), (e), or (j) of Section 289.

      (R) The person was convicted of a felony violation of Section 311.1 or 311.11 or of violating subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, or 311.10.

      (4) (A) A person who is required to register pursuant to Section 290.005 shall be placed in the appropriate tier if the offense is assessed as equivalent to a California registerable offense described in subdivision (c).

      (B) If the person’s duty to register pursuant to Section 290.005 is based solely on the requirement of registration in another jurisdiction, and there is no equivalent California registerable offense, the person shall be subject to registration as a tier two offender, except that the person is subject to registration as a tier three offender if one of the following applies:

      (i) The person’s risk level on the static risk assessment instrument (SARATSO), pursuant to Section 290.06, is well above average risk at the time of release on the index sex offense into the community, as defined in the Coding Rules for that instrument.

      (ii) The person was subsequently convicted in a separate proceeding of an offense substantially similar to an offense listed in subdivision (c) which is also substantially similar to an offense described in subdivision (c) of Section 667.5, or is substantially similar to Section 269 or 288.7.

      (iii) The person has ever been committed to a state mental hospital or mental health facility in a proceeding substantially similar to civil commitment as a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.

      (5) (A) The Department of Justice may place a person described in subdivision (c), or who is otherwise required to register pursuant to the Act, in a tier-to-be-determined category if the appropriate tier designation described in this subdivision cannot be immediately ascertained. An individual placed in this tier-to-be-determined category shall continue to register in accordance with the Act. The individual shall be given credit toward the mandated minimum registration period for any period for which the individual registers.

      (B) The Department of Justice shall ascertain an individual’s appropriate tier designation as described in this subdivision within 24 months of the individual’s placement in the tier-to-be-determined category.

      (e) The minimum time period for the completion of the required registration period in tier one or two commences on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period. The minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under this act, and by three years for each felony conviction of failing to register under this act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that person’s release from incarceration, placement, or commitment, including any related civil commitment. If the subsequent conviction requiring registration pursuant to the Act occurs prior to an order to terminate the registrant from the registry after completion of a tier associated with the first conviction for a registerable offense, the applicable tier shall be the highest tier associated with the convictions.

      (f) This section does not require a ward of the juvenile court to register under the Act, except as provided in Section 290.008.

    2. CALCRIM No. 1170 – Failure to Register. See also People v. Garcia (2001), 25 Cal.4th 744.
    3. Barrows v. Municipal Court (1970), 1 Cal. 3d 821.
    4. California Penal Code 290.011g. See also People v. Aragon (2012) 207 Cal.App.4th 504.
    5. See same.
    6. People v. Wallace (2009) 176 Cal.App.4th 1088.
    7. People v. Aragon, supra.
    8. People v. Garcia, Supra.
    9. People v. Barker (2004), 34 Cal.4th 345.
    10. See same.
    11. See same.
    12. CALCRIM No. 1170 – Failure to Register. See also People v. Barker, Supra.
    13. California PC 290b.
    14. California PC 290.018.
    15. See same.
    16. See same.
    17. See same.
    18. See INA 237 (a) (2) (A).
    19. California PC 1203.4.
    20. See same.
    21. California Penal Code 667.71.
    22. California Penal Code 667.71(b).
    23. California Penal Code 667.71(e).
    24. California Penal Code 2022.3.
    25. California Penal Code 12022.3a.
    26. California Penal Code 12022.3b.
    27. California Penal Code 288.
    28. See same.

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