sex offender registration requirement in California

2015The sex offender registration requirement at section 290 is 8 “a statutorily mandated element of punishment for the underlying offense.” (People v. McClellan (1993) 6 Cal.4th 367, 380 .) It “is not a permissible subject of plea agreement negotiation” and neither the prosecutor nor the court has authority to exempt a defendant from mandatory sex offender registration.

2015The sex offender registration requirement at section 290 is 8 “a statutorily mandated element of punishment for the underlying offense.” (People v. McClellan (1993) 6 Cal.4th 367, 380 .) It “is not a permissible subject of plea agreement negotiation” and neither the prosecutor nor the court has authority to exempt a defendant from mandatory sex offender registration.

2015People v. Castellanos (1999) 21 Cal.4th 785 , 796 held: “The sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment.

2010The statute is thus regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts.'" ( Ibid. ) As for the second factor — punitive effect — the Castellanos court held, "Nor is the sex offender registration requirement so punitive in fact that it must be regarded as punishment, despite the Legislature's contrary intent.

2014“When statutory grounds dispose of an issue, constitutional questions should be avoided because of the ‘concept of judicial self-restraint, succinctly stated in the rule that “we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” [Citations.]’” (People v. Barasa (2002) 103 Cal.App.4th 287, 292, fn. 4 .) Since we are required to refrain from deciding hypothetical questions of constitutional law unnecessary to our disposition, we need not and should not address the equal protection contention.

2014“When statutory grounds dispose of an issue, constitutional questions should be avoided because of the ‘concept of judicial self-restraint, succinctly stated in the rule that “we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” [Citations.]’” (People v. Barasa (2002) 103 Cal.App.4th 287, 292, fn. 4 .) Since we are required to refrain from deciding hypothetical questions of constitutional law unnecessary to our disposition, we need not and should not address the equal protection contention.

2001Rather, defendant's claim is bottomed on the Sixth Amendment. [7] We have stated that the "direct" consequences of a guilty plea include the range of punishment ( Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 , 119 Cal.Rptr. 302 , 531 P.2d 1086 ), a restitution fine ( People v. Walker (1991) 54 Cal.3d 1013, 1022 , 1 Cal.Rptr.2d 902 , 819 P.2d 861 ), a mandatory parole term ( In re Moser (1993) 6 Cal.4th 342, 351-352 , 24 Cal.Rptr.2d 723 , 862 P.2d 723 ) and a sex offender registration requirement ( People v. McClellan (1993) 6 Cal.4th 367, 376 , 24 Cal. Rptr.2d 739 , 862 P.2d 739 ).

2001Rather, defendant's claim is bottomed on the Sixth Amendment. [7] We have stated that the "direct" consequences of a guilty plea include the range of punishment ( Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 , 119 Cal.Rptr. 302 , 531 P.2d 1086 ), a restitution fine ( People v. Walker (1991) 54 Cal.3d 1013, 1022 , 1 Cal.Rptr.2d 902 , 819 P.2d 861 ), a mandatory parole term ( In re Moser (1993) 6 Cal.4th 342, 351-352 , 24 Cal.Rptr.2d 723 , 862 P.2d 723 ) and a sex offender registration requirement ( People v. McClellan (1993) 6 Cal.4th 367, 376 , 24 Cal. Rptr.2d 739 , 862 P.2d 739 ).

2014Citing Kelly, In re Reed (1983) 33 Cal.3d 914, 919 [ 191 Cal.Rptr. 658 , 663 P.2d 216 ], states: “A misdemeanant may be released from this ‘penalty or disability’ [(the sex offender registration requirement)] pursuant to section 1203.4 . . . ,” 6 However, Reed's characterization of the registration requirement as punitive was considered and rejected by the California Supreme Court in Alva. ( Alva, supra, 33 Cal.4th at pp. 291-292 [“intervening developments . . . render unpersuasive Reeds characterization of sex offender registration as punitive”].) Second, in In re Birch (1973) 10 Cal.3d 314 [

2014(In re Birch, supra, 10 Cal.3d at p. 316 [“we have concluded that petitioner’s conviction must be set aside because the record does not reveal [he] was properly advised prior to his plea either of his right to counsel or of the sex registration requirement”]; People v. McClellan, supra, 6 Cal.4th at p. 376 [“Our initial inquiry, whether the trial court’s failure to advise defendant of the sex offender registration requirement violated its obligation to inform him of the direct consequences of the plea, easily is answered. . . .

2004Each of these cases found that there was no violation of the plea bargain because the parole period (In re Moser (1993) 6 Cal.4th 342 [ 24 Cal.Rptr.2d 723 , 862 P.2d 723 ]) or the sex offender registration requirement (People v. McClellan (1993) 6 Cal.4th 367 [ 24 Cal.Rptr.2d 739 , 862 P.2d 739 ]) that was not mentioned as a term of the plea bargain was nevertheless statutorily mandated and could not properly be the subject of plea negotiations.

2004Each of these cases found that there was no violation of the plea bargain because the parole period (In re Moser (1993) 6 Cal.4th 342 [ 24 Cal.Rptr.2d 723 , 862 P.2d 723 ]) or the sex offender registration requirement (People v. McClellan (1993) 6 Cal.4th 367 [ 24 Cal.Rptr.2d 739 , 862 P.2d 739 ]) that was not mentioned as a term of the plea bargain was nevertheless statutorily mandated and could not properly be the subject of plea negotiations.

2022Children, in particular, ‘are a class of victims who require paramount protection’ from sex offenders [citation], and mandating lifetime registration of those who prey on underage victims serves ‘to notify members of the public of the existence and location of sex offenders so they can take protective measures’ [citation].” (Johnson, at p. 877; see In re Alva, supra, 33 Cal.4th at p. 264 [“ ‘ “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely

2022Children, in particular, ‘are a class of victims who require paramount protection’ from sex offenders [citation], and mandating lifetime registration of those who prey on underage victims serves ‘to notify members of the public of the existence and location of sex offenders so they can take protective measures’ [citation].” (Johnson, at p. 877; see In re Alva, supra, 33 Cal.4th at p. 264 [“ ‘ “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely

2025(McKee, supra, 47 Cal.4th at p. 1211, fn. 14 ; Smith v. Doe (2003) 538 U.S. 84, 93, 96 , 105–106.) It is not punishment or penalty for purposes of constitutional analysis, including a due process challenge.

2024(People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14 ; Legg v. Department of Justice (2022) 81 Cal.App.5th 504 , 511.) Section 290 concerns sex offender registration for adult offenders, but it also requires a ward of the juvenile court to be registered pursuant to section 290.008. (§ 290, subd. (f).) Moreover, “the personal liberty interest of a minor is less comprehensive than that of an adult.” (In re Roger S. (1977) 19 Cal.3d 921, 927 .) “[E]ven where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its autho

2023(See People v. Picklesimer, supra, 48 Cal.4th at p. 335 [declining to treat motion challenging sex offender registration requirement as a petition for writ of mandate because, even if the defendant established the right to relief from mandatory sex offender registration, the record before it did “not conclusively establish” that the defendant was exempt from discretionary sex offender registration under § 290.006].) We also decline defendant’s request to remand with instructions for the trial court to remove the sex offender registration requirement unless it exercises its discretion to requir

2014(See Picklesimer, supra, 48 Cal.4th at p. 338 [refusing to apply § 187 to find the superior court had jurisdiction to hear a postjudgment motion for relief from an improper sex offender registration requirement]; Swarthout v. Superior Court (2012) 208 Cal.App.4th 701, 707-708 [ 145 Cal.Rptr.3d 760 ] [same as to a postconviction motion to transfer an inmate]; People v. Ainsworth (1990) 217 Cal.App.3d 247, 254-255 [ 266 Cal.Rptr. 175 ] [same as to postconviction discovery motion].) Drinkwater also suggests that “all courts have inherent supervisory or administrative powers which enable them to c

2023DISCUSSION California law requires persons convicted of specified sex crimes against a child, including violations of section 288, to register as a sex offender while they live, work, or attend school in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 4 60 Cal.4th 1044, 1048 .) Commencing January 1, 2021, Senate Bill No. 384 (2017-2018 Reg. Sess.) (SB 384) restructured the sex offender registration requirement, establishing three tiers of registration for sex offenders, primarily based on the offense of conviction, for periods of at least 10 years (tier one), at least 20 years (ti

2023“California law requires persons convicted of specified sex crimes against a child, including violations of section 288, to register as a sex offender while they live, work, or attend school in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 60 Cal.4th 1044 , 1048 . . . .) Commencing January 1, 2021, Senate Bill No. 384 (2017-2018 Reg. Sess.) . . . restructured the sex offender registration requirement, establishing three tiers of registration for sex offenders, primarily based on the offense of conviction, for periods of at least 10 years (tier one), at least 20 years (tier two),

2025(People v. Carmony, supra, 33 Cal.4th at p. 377 .) As stated above, one of the “purpose[s] of sex offender registration is to keep track of persons likely to reoffend” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 ), by assuring “ ‘that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future’ ” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 ), and “to notify members of the public of the existence and location of sex offenders so they can

2010As our Supreme Court noted in Hofsheier, supra, 37 Cal.4th at page 1197 ; “Although sex offender registration is not considered a form of punishment under the state or federal Constitution [citations], it imposes a ‘substantial’ and ‘onerous’ burden *40 [citations].” Nonetheless, whether the sex offender registration requirement is punitive or nonpunitive has no bearing on the question of whether a defendant is required to register.

2007Subsequently, Bunnell held that a defendant pleading guilty shall be advised of the direct consequences of conviction “such as the permissible range of punishment . . . [and] registration requirements, if any (e.g., § 290 . . .).” (Bunnell, supra, 13 Cal.3d at p. 605 .) In holding that a court is obligated to advise a defendant of the sex offender registration requirement, People v. McClellan, supra, 6 Cal.4th at page 376 specifically cited the language in Birch that registration is a “ ‘grave and direct consequence’ ” of a plea.

2001Rather, defendant's claim is bottomed on the Sixth Amendment. [7] We have stated that the "direct" consequences of a guilty plea include the range of punishment ( Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 , 119 Cal.Rptr. 302 , 531 P.2d 1086 ), a restitution fine ( People v. Walker (1991) 54 Cal.3d 1013, 1022 , 1 Cal.Rptr.2d 902 , 819 P.2d 861 ), a mandatory parole term ( In re Moser (1993) 6 Cal.4th 342, 351-352 , 24 Cal.Rptr.2d 723 , 862 P.2d 723 ) and a sex offender registration requirement ( People v. McClellan (1993) 6 Cal.4th 367, 376 , 24 Cal. Rptr.2d 739 , 862 P.2d 739 ).

2014Citing Kelly, In re Reed (1983) 33 Cal.3d 914, 919 [ 191 Cal.Rptr. 658 , 663 P.2d 216 ], states: “A misdemeanant may be released from this ‘penalty or disability’ [(the sex offender registration requirement)] pursuant to section 1203.4 . . . ,” 6 However, Reed's characterization of the registration requirement as punitive was considered and rejected by the California Supreme Court in Alva. ( Alva, supra, 33 Cal.4th at pp. 291-292 [“intervening developments . . . render unpersuasive Reeds characterization of sex offender registration as punitive”].) Second, in In re Birch (1973) 10 Cal.3d 314 [

2014Citing Kelly, In re Reed (1983) 33 Cal.3d 914, 919 [ 191 Cal.Rptr. 658 , 663 P.2d 216 ], states: “A misdemeanant may be released from this ‘penalty or disability’ [(the sex offender registration requirement)] pursuant to section 1203.4 . . . ,” 6 However, Reed's characterization of the registration requirement as punitive was considered and rejected by the California Supreme Court in Alva. ( Alva, supra, 33 Cal.4th at pp. 291-292 [“intervening developments . . . render unpersuasive Reeds characterization of sex offender registration as punitive”].) Second, in In re Birch (1973) 10 Cal.3d 314 [

2025(People v. Carmony, supra, 33 Cal.4th at p. 377 .) As stated above, one of the “purpose[s] of sex offender registration is to keep track of persons likely to reoffend” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 ), by assuring “ ‘that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future’ ” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 ), and “to notify members of the public of the existence and location of sex offenders so they can

2013(People v. Garcia, supra, 161 Cal.App.4th at p. 483 .) “[O]ne consideration before the court must be the likelihood that the defendant will reoffend.” (Id. at p. 485; accord, People v. Thompson (2009) 177 Cal.App.4th 1424, 1431 ; Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 .) C If, upon remand, the trial court exercises its discretion to again impose a sex offender registration requirement, it shall reinstate defendant’s sentence as originally imposed, with any update in, or recalculation of, defendant’s custody credits as may be appropriate.

2024(Stats. 2017, ch. 541, § 2.5; see § 290, subd. (d).) Defendant is a tier two sex offender subject to the 20-year registration requirement. (§ 290, subd. (d)(2); see § 290.5, subds. (a), (b).) Commencing July 1, 2021, Senate Bill 384 also established procedures for a person to seek termination from the sex offender registry if the person meets certain criteria, including completion of the mandated minimum registration period. (§ 290.5, subds. (a)– (c); People v. Thai (2023) 90 Cal.App.5th 427 , 432.) Pursuant to the statute, the prosecution may request a hearing and present evidence to establis

2007Compliance is essential to that objective; lack of compliance fatal.” [Citation.]’ [Citation.]” (People v. Sorden, supra, 36 Cal.4th 65, 73 .) Thus, the sex offender registration requirement is “a statutorily mandated element of punishment for the underlying offense” that “is not a permissible subject of plea agreement negotiation; neither the prosecution nor the sentencing court has the authority to alter the legislative mandate” that a person convicted of a qualifying offense “shall register as a sex offender pursuant to the provisions set forth in section 290.” (People v. McClellan (1993) 6

2010B Defendant’s assertion of a substantive due process violation asks this court to give immutable constitutional status to the proposition that a convicted sex offender has a right to privacy that the Legislature may not infringe upon by enacting a sex offender registration requirement. *1079 In evaluating defendant’s argument, we heed the admonition that “[d]ue to the inherently subjective factors that define substantive due process rights and the lack of precise 1 “guideposts for responsible decisionmaking in this unchartered area,” ’ courts are reluctant to expand the concept of substantive

2010B Defendant’s assertion of a substantive due process violation asks this court to give immutable constitutional status to the proposition that a convicted sex offender has a right to privacy that the Legislature may not infringe upon by enacting a sex offender registration requirement. *1079 In evaluating defendant’s argument, we heed the admonition that “[d]ue to the inherently subjective factors that define substantive due process rights and the lack of precise 1 “guideposts for responsible decisionmaking in this unchartered area,” ’ courts are reluctant to expand the concept of substantive

2003For reasons that follow, we part company with Division One of the Fourth Appellate District ( People v. Cox (2002) 94 Cal. App.4th 1371 , 115 Cal.Rptr.2d 123 ) [1] and conclude that genuinely forgetting to comply with a sex offender registration requirement is a defense to the charge of violating subdivision (g)(2) of section 290.

2003For reasons that follow, we part company with Division One of the Fourth Appellate District ( People v. Cox (2002) 94 Cal. App.4th 1371 , 115 Cal.Rptr.2d 123 ) [1] and conclude that genuinely forgetting to comply with a sex offender registration requirement is a defense to the charge of violating subdivision (g)(2) of section 290.

2015(People v. Tuck (2012) 204 Cal.App.4th 724, 739-740 (conc. opn. of Pollak, J.).) Specifically, section 4852.01, in relevant part, provides: “Any person convicted . . . of a misdemeanor violation of any sex offense specified in Section 290, the accusatory pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter . . . .” (§ 4852.01, subd. (c).) A certificate of rehabilitation; however, does not free some defendants, including defendant in this case, from the requirement that he reg

2013Section 288(a) prohibits lewd or lascivious acts with a child who is under the age of 14 years. 2 A. The Challenged Statutes Section 4852.01 and section 290.5 together provide a means by which some sex offenders, including section 288.7 offenders but excluding section 288(a) offenders, may obtain a certificate of rehabilitation and relief from the sex offender registration requirement. ( Tuck, supra, 204 Cal.App.4th at pp. 739-740 (conc. opn.).) Specifically, section 4852.01, subdivision (a) provides: “Any person convicted of a felony who has been released from a state prison . . . may file th

2010(See People v. McClellan (1993) 6 Cal.4th 367, 380 [ 24 Cal.Rptr.2d 739 , 862 P.2d 739 ] ["the sex offender registration requirement... *1291 is ... a statutorily mandated element of punishment for the underlying offense"]; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825 [ 83 Cal.Rptr. 819 , 464 P.2d 483 ] [§ 290 "applies automatically when a person is convicted of one of the enumerated offenses" (italics added)].) Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirem

2010(See People v. McClellan (1993) 6 Cal.4th 367, 380 [ 24 Cal.Rptr.2d 739 , 862 P.2d 739 ] ["the sex offender registration requirement... *1291 is ... a statutorily mandated element of punishment for the underlying offense"]; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825 [ 83 Cal.Rptr. 819 , 464 P.2d 483 ] [§ 290 "applies automatically when a person is convicted of one of the enumerated offenses" (italics added)].) Indeed, the current registration law in effect requires eligible offenders to register even before they are released from prison. (§ 290.016.) Clearly, the registration requirem

1993Moreover, in reaching this conclusion, we reasoned that, because the amount of an appropriate restitution fine imposed upon a defendant could vary significantly depending upon the specific facts of a given case, ‘the restitution fine should generally be considered in plea negotiations.’ (People v. Walker, supra, 54 Cal.3d at p. 1024 .)” By contrast, the sex offender registration requirement challenged in the present case is, like the parole term in Moser, a statutorily mandated element of punishment for the underlying offense. (§§ 290, 290.1; see also Barrows v. Municipal Court, supra, 1 Cal.3

1993Moreover, in reaching this conclusion, we reasoned that, because the amount of an appropriate restitution fine imposed upon a defendant could vary significantly depending upon the specific facts of a given case, `the restitution fine should generally be considered in plea negotiations.' ( People v. Walker, supra, 54 Cal.3d at p. 1024 .)" By contrast, the sex offender registration requirement challenged in the present case is, like the parole term in Moser, a statutorily mandated element of punishment for the underlying offense. (§§ 290, 290.1; see also Barrows v. Municipal Court, supra, 1 Cal.

2025(McKee, supra, 47 Cal.4th at p. 1211, fn. 14 ; Smith v. Doe (2003) 538 U.S. 84, 93, 96 , 105–106.) It is not punishment or penalty for purposes of constitutional analysis, including a due process challenge.