Penal Code § 290 Obligation Not Changed When Felony Reduced

Over about a one month period in late 2006, Defendant Brian Roger Kennedy engaged in a sexually explicit Internet conversation with an undercover San Jose police officer who Kennedy believed was 13 years old and named “Tiffany.”  Kennedy sent “Tiffany” a picture of his erect penis, as well as videos and webcams of himself masturbating.  He also communicated with her via instant messaging and e-mail.
Synopsis:  Lifetime Requirement to Register as Sex Offender Not Eliminated When Felony Conviction Reduced to Misdemeanor.
When he arranged to meet with her, police officers arrested him at the designated meeting spot.  Kennedy had one-tenth of an ounce of cocaine in his pocket.

Kennedy was charged with attempted lewd or lascivious acts on a child under 14 (Penal Code §§ 664, 288(a)), attempted distribution and exhibition of harmful matter to a minor by electronic mail, the Internet or a commercial online source (Penal Code §§ 664, 288.2(b)), a “wobbler,” and possession of a controlled substance (Health and Safety Code § 11350(a)).

As part of a plea deal, the 288(a) charge was dismissed and Kennedy pled guilty to the 288.2(b) and 11350(a) charges, was placed on five years of formal probation and ordered Kennedy to register as a sex offender under Penal Code § 290. 

About two years later, Kennedy filed a motion under Penal Code § 17(b)(3) for an order reducing the 288.2 offense from a felony to a misdemeanor.  The trial court then granted the motion.

About one year later, in 2010, Kennedy then filed another motion, this time for an order terminating his sex offender registration requirement, which is a lifetime requirement.  The trial court denied this motion, claiming Penal Code § 17(e) barred any change in the lifetime registration requirement.

Kennedy then appealed to the Six Appellate District.  In an opinion filed on May 4, 2011 (People v. Kennedy (2011 DJDAR 6377)), the Appellate District affirmed the trial court’s decision.  In refusing to reverse the trial court, the Court noted that section 17(e) explicitly states, “nothing in this section authorizes a judge 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 as a sex offender is required. . .” 

Since Defendant pled no contest to a charge of 288.2(b) as a felony, he was found guilty of the charge by the trial court and the lifetime registration requirement attached.  Citing to a 2004 case, Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1777, 1482 – 1483, the Court decided the relief requested by Kennedy could not be retroactive.  The Court also examined the legislative history of 17(e) and found that the Committee on Public Safety specifically addressed this issue and stated that the lifetime requirement could not be lifted when a felony was reduced to a misdemeanor.

So while Kennedy could find some relief in not being a convicted felon, he could not escape a lifetime registration requirement as a sex offender until and if our legislature changes such a law.

For more information about sex offender registration issues, click on the following articles:
  1. Court Decides California Sex Offender Law Is Unconstitutional By Barring Those Convicted of Misconduct with Persons Under 14 From Relief From PC 290 Registration
  2. Conviction Related to Sexting Properly Required Sex Offender Registration
  3. Judge Makes Mistake in Sex Offender Registration After Sentencing for Felony Child Endangerment
For case summaries of selected sex offense cases our firm has handled, click here.

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