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Criminal Defense Attorneys

Failure to Register as a Sex Offender, PC § 290.012(a)

Penal Code § 290.012(a) states that “Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (b) of Section 290.”

We start our article with this quoted section to point out that there is no obligation to tell one’s police department of sheriff’s department, with whom one registers, that one is about to move.  There is no requirement, in other words, to go to the agency and give them a courtesy “goodbye” or notice that one will be leaving .  We recently represented an individual where our client simply registered in the new state he moved to from California.  The case was dismissed.

A violation of this law is a “straight felony” if the underlying conviction imposing the registration requirement was a felony.  It is not a wobbler.  The punishment is sixteen months, two years or three years in state prison as well as a fine of up to $10,000.  Probation is possible.

A violation is a misdemeanor if the underlying conviction was a misdemeanor with punishment being up to one year in county jail and a fine of up to $1,000.  Probation is possible as well.

In addition, a failure to register as a felony adds three years (one year if a misdemeanor) to one’s time he or she must register before being eligible for termination of the obligation to register, under the new Tier system under Senate Bill 384. 

Our office has recently seen an uptick in such cases related, we think, to the COVID-19 pandemic because, according to some of our clients, law enforcement refused to register the offender because they were under strict social distancing restrictions in the police or sheriff’s station.  One of our clients was told more than once to call back the following month, only to find himself facing a failure to register case.

We find prosecutors are particularly “blood thirsty” on such cases, as it is a sex offense.  One of our clients, who had merely stayed at his friend’s house a mile away from his house for a week to house sit it while his friend was out of town received 60 days in county jail.  We have heard of several other felony failure to register cases where sixteen months is the punishment.

Prosecutors do not want sex offenders to be casual with their registration obligations, so a heavy sentence is common, even when the sex offender may have registered religiously, without fail, for twenty years in a row.

The strongest defense to such a charge is that one was not given notice of an obligation to register, but this is rare.  Nowadays, the obligation to register as a sex offender is a primary concern, if not the only concern, with many defendants facing sex offense charges.  It is almost more significant than the jail time or prison time because the registration obligation lasts well after one leaves custody (it does not start until one leaves custody).

A second defense, related to COVID-19 “turn aways,” would be to have the police agency acknowledge they did ask certain 290 registrants to wait to register until the next month or two months or even longer, but we have yet to find a law enforcement officer who will cooperate with us on this.

A third defense, which certainly could take place, is that law enforcement lost the registration documents for a registrant, so the registrant could not register as required.

Lastly, the registrant may have been in the hospital and unable to go to the police station to register or the person could be in custody and unable to get out of custody to drive over to his or her local police or sheriff’s station to register.

We bring this article to the reader’s attention because we find that those who are registered sex offenders often have no other prior criminal history.  They are often regarded as upstanding citizens who are responsible and law-abiding, but that person can easily find himself or herself with a failure to register case and the nightmare begins all over.

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