California Criminal Jury Instructions (CALCRIM) (2017)

1170. Failure to Register as Sex Offender

Download PDF
(iv) Failure to Register
1170.Failure to Register as Sex Offender (Pen. Code, § 290(b))
The defendant is charged [in Count ] with failing to register as a
sex offender [in violation of Penal Code section 290(b)].
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> in California);
3. The defendant actually knew (he/she) had a duty under Penal
Code section 290 to register as a sex offender [living at
<insert specific address or addresses in California>]
and that (he/she) had to register within five working days of
<insert triggering event specified in Penal Code
section 290(b)>;
AND
<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).]
<Alternative 4B—birthday>
[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.
[Residence means one or more addresses where someone regularly
resides, regardless of the number of days or nights spent there, such as
a shelter or structure that can be located by a street address. A
921
0213
residence may include, but is not limited to, houses, apartment
buildings, motels, hotels, homeless shelters, and recreational and other
vehicles.]
New January 2006; Revised August 2006, April 2010, October 2010, February
2013, February 2014, August 2014, August 2015
BENCH NOTES
Instructional Duty
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, 2006. The instruction may not be appropriate for offenses that occurred before
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 1, if the specific offense triggering the registration requirement is
spousal rape, the instruction must include the requirement that the offense involved
the use of “force or violence.” (People v. Mason (2013) 218 Cal.App.4th 818,
822–827 [160 Cal.Rptr.3d 516].)
In element 3, choose the option “living at <insert specific address
in California> if there is an issue whether the defendant actually knew that a place
where he or she spent time was a residence triggering the duty to register. (People
v. Cohens (2009) 178 Cal.App.4th 1442, 1451 [101 Cal.Rptr.3d 289]; People v.
LeCorno (2003) 109 Cal.App.4th 1058, 1068–1069 [135 Cal.Rptr.2d 775].
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(b).) 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, § 290.012.)
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, 96 P.3d 507]; 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. 1170 SEX OFFENSES
922
0214
CALCRIM No. 250, Union of Act and Intent: General Intent, as explained in the
Related Issues section to CALCRIM No. 250.
AUTHORITY
• Elements. Pen. Code, §§ 290(b) [change in residence], 290.012 [birthday];
People v. Garcia (2001) 25 Cal.4th 744, 752 [107 Cal.Rptr.2d 355, 23 P.3d
590].
• Spousal Rape Not Registerable Offense Absent Force or Violence. People v.
Mason (2013) 218 Cal.App.4th 818, 825–826 [160 Cal.Rptr.3d 516].
• Definition of Residence. Pen. Code, § 290.011(g); People v. Gonzales (2010)
183 Cal.App.4th 24, 35 [107 Cal.Rptr.3d 11].
• Willfully Defined. Pen. Code, § 7(1); see People v. Barker (2004) 34 Cal.4th
345, 360 [18 Cal.Rptr.3d 260, 96 P.3d 507].
• 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, 96 P.3d 507]; 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].
• Jury May Consider Evidence That Significant Involuntary Condition Deprived
Defendant of Actual Knowledge. People v. Sorden (2005) 36 Cal.4th 65, 72
[29 Cal.Rptr.3d 777, 113 P.3d 565].
• People Must Prove Defendant Was California Resident at Time of
Offense. People v Wallace (2009) 176 Cal.App.4th 1088, 1102–1104 [98
Cal.Rptr.3d 618].
• Defendant Must Have Actual Knowledge That Location is Residence for
Purpose of Duty to Register. (People v. Aragon (2012) 207 Cal.App.4th 504,
510 [143 Cal.Rptr.3d 476]; People v. LeCorno (2003) 109 Cal.App.4th 1058,
1067–1070 [135 Cal.Rptr.2d 775].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment
§§ 136–149.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.04[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
SEX OFFENSES CALCRIM No. 1170
923
0215
Challenges to Crimes, § 140.20[1][a], Ch. 142, Crimes Against the Person,
§ 142.21 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
RELATED ISSUES
Other Violations of Section 290
This instruction applies to violations under Penal Code sections 290(b) and
290.012. 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, §§ 290.013–290.014; People v. Smith (2004) 32 Cal.4th 792, 800–802
[11 Cal.Rptr.3d 290, 86 P.3d 348] [under former Pen. Code, § 290(f), which
allowed notice of change of address in writing, there is 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 when 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, § 290.010; 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; opinion cites former
section 290(a)(1)(B)]; 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, § 290.011.)
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, § 290.012.) 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, § 290.002.)
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, providing false information on the registration form is a violation of
CALCRIM No. 1170 SEX OFFENSES
924
0216
section 290.018. (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, 96
P.3d 507].) 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(c).) The mandatory registration requirement for consensual oral copulation
with a minor does not deny equal protection of laws. (Johnson v. Department of
Justice (2015) 60 Cal.4th 871 [183 Cal.Rptr.3d 96, 341 P.3d 1075] [overruling
People v. Hofsheier (2006) 37 Cal.4th 1185, 1191, 1205–1206 [39 Cal.Rptr.3d 821,
129 P.3d 29]].)
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.3d 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 former Pen. Code, § 290(b), after October 13, 2007, section
290.017; People v. Garcia (2001) 25 Cal.4th 744, 754, 755–756 [107 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
SEX OFFENSES CALCRIM No. 1170
925
0217
must actually know of his duty to register.” (People v. Garcia, supra, 25 Cal.4th at
p. 754.)
1171–1179. Reserved for Future Use
CALCRIM No. 1170 SEX OFFENSES
926
0218