PC 17(b) Relief on 664-288.2 Doesn’t End 290 Reporting

Our office has received several calls from potential clients or those just seeking to discuss registration as a sex offender after being convicted of a felony count of attempted distribution of “kiddie porn” to a minor (Penal Code §§ 664 / 288.2). Quite often, the discussion will include a description of what Senate Bill 384 provides and what Penal Code § 17(e) states, much to the disappointment of some of our callers.

The following summary of a recent California Court of Appeal ruling from the First Appellate District exemplifies seemingly all the issues and answers that many of our callers seek to discuss.

In 2006, Mr. Junaid Manzoor pleaded guilty in Contra Costa County Superior Court to a felony violation of Penal Code §§ 288.2 and 664 for attempting to distribute harmful material to a minor.

As a result of his conviction, he was required to register as a sex offender for life under former Penal Code § 290(a)(2)(A).

About fourteen years later, the trial court in Contra Costa County granted his petition under Penal Code § 17(b)(3) to reduce his conviction from a felony to a misdemeanor. The trial court also granted relief under Penal Code § 1203.4 (“expungement”).

After this, Senate Bill No. 384 was passed into law, amending Penal Code § 290 to provide for a tiered system of registration time periods. It merits mention that a conviction for a violation of Penal Code § 288.2 is classified as a “Tier 3” crime with a lifetime registration period.

In 2020, Mr. Manzoor was residing in Alameda County (and where he was required to register) and therefore filed a petition under Penal Code § 290.5 for relief from his registration requirement. He argued that the reduction of his offense from a felony to a misdemeanor meant he did not need to register anymore because Penal Code § 290.006 imposes no obligation to register for a misdemeanor violation of Penal Code § 288.2, although the Sex Offender Registration Act (Penal Code §§ 290 – 290.04) specifies that a felony violation of 288.2 obligates one to register for life.

The local law enforcement agency submitted a report to the judge stating that Mr. Manzoor was subject to a “lifetime” mandatory registration period.

The trial court judge summarily denied Mr. Manzoor’s petition.

Mr. Manzoor then appealed to the First Appellate District Court in San Francisco. The First Appellate District affirmed the trial court, explaining that under the amended Penal Code § 290, a defendant is a “Tier 3” offender subject to lifetime registration if “[t]he person was convicted of violating . . . Section 288.2.” Penal Code § 290(d)(3)(C)(x).

Further, a judge is not authorized “to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.” Penal Code § 17(e).

Here, Mr. Manzoor was charged with and pleaded guilty to a violation of Penal Code § 288.2, an offense that required registering as a sex offender. Thus, the reduction of a defendant’s felony violation of § 288.2 to a misdemeanor did not affect Mr. Mansoor’s lifetime duty to register as a sex offender based on Penal Code § 17(e)’s plain language.

In People v. Kennedy (2011) 194 Cal. App. 4th 1484, the defendant was charged with and pleaded no contest to attempted distributing or exhibiting harmful matter to a minor by the Internet in violation of sections 288.4 and 664. A couple years later, the court granted the defendant’s motion to reduce the section 288.2 offense from a felony to a misdemeanor pursuant to Penal Code § 17(b)(3). Mr. Kennedy then moved for an order terminating his sex offender registration requirement and the court denied his motion.

Mr. Kennedy then appealed to the Sixth Appellate District, which affirmed the trial court and noted that relief under Penal Code § 17(b) is not retroactive in operation.

Furthermore, Mr. Mansoor presented no evidence that the amendments to Penal Code § 290 reflected a legislative intent to relieve a defendant of their lifetime registration obligation in the context of Mr. Mansoor’s offense.