1170. Failure to Register as Sex Offender
The defendant is charged [in Count ______] with failing to register as a sex offender.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was previously (convicted of/found to have committed) <specify the offense for which the defendant is allegedly required to register>;
2. The defendant resided (in <insert name of city>, California/in an unincorporated area or a city with no police department in <insert name of county> County, California/on the campus or in the facilities of
<insert name of university or college>);
3. The defendant actually knew (he/she) had a duty to register as a sex offender under Penal Code section 290 [within five working days of (his/her) birthday] wherever (he/she) resided;
<Alternative 4A—change of residence>
[4. The defendant willfully failed to register as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus or its facilities) within five working days of (coming into/ [or] changing (his/her) residence within) that (city/county/campus).]
[4. The defendant willfully failed to annually update (his/her) registration as a sex offender with the (police chief of that city/sheriff of that county/the police chief of that campus) within five working days of (his/her) birthday.]
Someone commits an act willfully when he or she does it willingly or on purpose.
The court has a sua sponte duty to give this instruction defining the elements of the crime. This instruction is based on the language of the statute effective January 1, 2004. The instruction may not be appropriate for offenses that occurred prior to that date. Note also that this is an area where case law is developing rapidly. The court should review recent decisions on Penal Code section 290 before instructing.
In element 4, give alternative 4A if the defendant is charged with failing to register within five working days of changing his or her residence or becoming homeless. (Pen. Code, § 290(a)(1)(A).) Give alternative 4B if the defendant is charged with failing to update his or her registration within five working days of his or her birthday. (Pen. Code, § 290(a)(1)(D).) If alternative 4B is given, also give the bracketed phrase in element 3.
If the defendant is charged with a prior conviction for failing to register, give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the truth of the prior conviction. (See People v. Merkley (1996) 51 Cal.App.4th 472, 476 [58 Cal.Rptr. 2d 21]; People v. Bouzas (1991) 53 Cal.3d 467, 477-480 [279 Cal.Rptr. 847, 807 P.2d 1076]; People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].)
For the charge of failure to register, it is error to give an instruction on general criminal intent that informs the jury that a person is "acting with general criminal intent, even though he may not know that his act or conduct is unlawful." (People v. Barker (2004) 34 Cal.4th 345, 360 [18 Cal.Rptr.3d 260]; People v. Edgar (2002) 104 Cal.App.4th 210, 219 [127 Cal.Rptr.2d 662].) The court should consider whether it is more appropriate to give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State, or to give a modified version of CALCRIM No. 250, Union Of Act And Intent: General Intent, as explained in the Related Issues section to CALCRIM No. 250.
Elements. Pen. Code, § 290(a)(1)(A) [change in residence] & (a)(1)(D) [birthday]; People v. Garcia (2001) 25 Cal.4th 744, 752 [107 Cal.Rptr.2d 355, 23 P.3d 590].
Willfully Defined. Pen. Code, § 7, subd. 1; see People v. Barker (2004) 34 Cal.4th 345, 360 [18 Cal.Rptr.3d 260].
Actual Knowledge of Duty Required. People v. Garcia (2001) 25 Cal.4th 744, 752 [107 Cal.Rptr.2d 355, 23 P.3d 590].
Continuing Offense. Wright v. Superior Court (1997) 15 Cal.4th 521, 527-528 [63 Cal.Rptr.2d 322, 936 P.2d 101].
General Intent Crime. People v. Barker (2004) 34 Cal.4th 345, 360 [18 Cal.Rptr.3d 260]; People v. Johnson (1998) 67 Cal.App.4th 67, 72 [78 Cal.Rptr.2d 795].
No Duty to Define Residence. People v. McCleod (1997) 55 Cal.App.4th 1205, 1219 [64 Cal.Rptr.2d 545].
Registration is Not Punishment. In re Alva (2004) 33 Cal.4th 254, 262 [14 Cal.Rptr.3d 811, 92 P.3d 311].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 184-188.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93, Disabilities Flowing From Conviction, § 93.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.20[a], Ch. 142, Crimes Against the Person, § 142.21 (Matthew Bender).
Other Violations of Section 290
This instruction applies to violations under Penal Code section 290(a)(1)(A) and (a)(1)(D). Section 290 imposes numerous other duties on persons convicted of sex offenses. For example, a registered sex offender must:
1. Notify the agency where he or she was last registered of any new address or location, whether inside or outside California, or any name change. (See Pen. Code, § 290(f)(1) & (3); People v. Smith (2004) 32 Cal.4th 792, 800-802 [11 Cal.Rptr.3d 290] [sufficient notice if defendant mails change of address form even if agency does not receive it]; People v. Annin (2004) 116 Cal.App.4th 725, 737-740 [10 Cal.Rptr.3d 712] [discussing meaning of "changed" residence]; People v. Davis (2002) 102 Cal.App.4th 377, 385 [125 Cal.Rptr.2d 519] [must instruct on requirement of actual knowledge of duty to notify law enforcement moving out of jurisdiction]; see also People v. Franklin (1999) 20 Cal.4th 249, 255-256 [84 Cal.Rptr.2d 241, 975 P.2d 30] [construing former Pen. Code, § 290(f), which did not specifically require registration when registrant moved outside California].) 2. Register multiple residences wherever he or she regularly resides. (See Pen. Code, § 290(a)(1)(B); People v. Edgar (2002) 104 Cal.App.4th 210, 219-222 [127 Cal.Rptr.2d 662] [court failed to instruct that jury must find that defendant actually knew of duty to register multiple residences]; People v. Vigil (2001) 94 Cal.App.4th 485, 501 [114 Cal.Rptr.2d 331].)
3. Update his or her registration at least once every 30 days if he or she is "a transient." (See Pen. Code, § 290(a)(1)(C).)
A sexually violent predator who is released from custody must verify his or her address at least once every 90 days and verify any place of employment. (See Pen. Code, § 290(a)(1)(E).) Other special requirements govern:
1. Residents of other states who must register in their home state but are working or attending school in California. (See Pen. Code, § 290(a)(1)(G).)
2. Sex offenders enrolled at, employed by, or carrying on a vocation at any university, college, community college, or other institution of higher learning. (See Pen. Code, § 290.01.)
In addition, proving false information on the registration form is a violation of section 290(g)(2). (See also People v. Chan (2005) 128 Cal.App.4th 408 [26 Cal.Rptr.3d 878].)
Forgetting to Register
If a person actually knows of his or her duty to register, "just forgetting" is not a defense. (People v. Barker (2004) 34 Cal.4th 345, 356-357 [18 Cal.Rptr.3d 260].) In reaching this conclusion, the court stated, "[w]e do not here express an opinion as to whether forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence, might negate the willfulness required for a section 290 violation." (Id. at p. 358 [italics in original].)
Registration Requirement for Consensual Oral Copulation With Minor
Penal Code section 290 requires lifetime registration for a person convicted of consensual oral copulation with a minor but does not require such registration for a person convicted of consensual sexual intercourse with a minor. (Pen. Code, § 290(a)(2)(A).) Two cases are currently pending before the Supreme Court currently raising the question of whether this distinction violates equal protection.
Moving Between Counties—Failure to Notify County Leaving and County Moving To Can Only Be Punished as One Offense
A person who changes residences a single time, failing to notify both the jurisdiction he or she is departing from and the jurisdiction he or she is entering, commits two violations of Penal Code section 290 but can only be punished for one. (People v. Britt (2004) 32 Cal.4th 944, 953-954 [12 Cal.Rptr.2d 66, 87 P.3d 812].) Further, if the defendant has been prosecuted in one county for the violation, and the prosecutor in the second county is aware of the previous prosecution, the second county cannot subsequently prosecute the defendant. (Id. at pp. 955-956.)
Notice of Duty to Register on Release From Confinement
No reported case has held that the technical notice requirements are elements of the offense, especially when the jury is told that they must find the defendant had actual knowledge. (See Pen. Code, § 290(b); People v. Garcia (2001) 25 Cal.4th 744, 754, 755-756 [10 Cal.Rptr.2d 355, 23 P.3d 590] [if defendant willfully and knowingly failed to register, Buford does not require reversal merely because authorities failed to comply with technical requirements]; see also People v. Buford (1974) 42 Cal.App.3d 975, 987 [117 Cal.Rptr. 333] [revoking probation for noncompliance with section 290, an abuse of discretion when court and jail officials also failed to comply].) The court in Garcia did state, however, that the "court's instructions on 'willfulness' should have required proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register." (People v. Garcia, supra, 25 Cal.4th at p. 754.)
(New January 2006)