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SB 384: What is Discretionary 290 Registration?

Under Penal Code § 290.006, a judge may order a defendant to register as a sex offender when he or she finds defendant committed a crime, which does not require registration, “as a result of sexual compulsion” or “purposes of sexual gratification.”  This could be for any crime.
It is rarely invoked by judges, in our experience, as judges are keenly aware of the collateral effects and stigma attached to having to register as a sex offender.  However, if such an order is made, the judge must state on the record the reasons for its finding and the reasons requiring registration.
Why This Article Matters: A judge has the discretionary power under Penal Code § 290.006 to order a defendant to register as a sex offender usually as a Tier One offender under SB 384 even though the conviction for the crime does not require it, but when the judge finds that the defendant committed the crime as a result of sexual compulsion or for purpose of sexual gratification.
When a judge so orders registration, the defendant is considered to be Tier 1 under Senate Bill 384 for purposes of ending the registration obligation.  This is true for all discretionary registration orders prior to January 1, 2021.  However, after January 1, 2021, the judge may specify that the order is as Tier 2 or Tier 3, not Tier 1, but the judge must include a statement on the record explaining the facts and reasons for such a requirement.

When could this happen or why could such an obligation to register arise?  We believe it could arise, for example, if one was convicted of, or is a repeat offender of any of the following offenses:
  • solicitation of prostitution (Penal Code § 647(b));
  • loitering for purposes of prostitution (Penal Code § 653.22);
  • lewd conduct in public (Penal Code § 647(a));
  • disturbing the peace (Penal Code § 415);
  • statutory rape (Penal Code § 261.5);
  • stalking (Penal Code § 646.9);
  • violation of a civil harassment restraining order (Penal Code § 166(a));
  • loitering by a public toilet to engage in or solicit lewd conduct (Penal Code § 647(d));
  • peeking (“being a Peeping Tom”) (Penal Code § 647(i) or Penal Code § 647(j));
  • invasion of privacy (Penal Code § 647(j));
  • trespass (Penal Code § 602);
  • making or sending harassing phone calls (Penal Code § 653(m); or
  • even public urination (Penal Code § 372 or various municipal code statutes)
when the facts otherwise would not require registration, but due to the specific facts about defendant and the circumstances of the crime lead to serious concerns by the judge.

We believe a judge certainly may require registration when a person is convicted of an attempted sex offense or is found to be guilty of engaging in a conspiracy to commit a sex offense.

Less obvious examples may also include, as another attorney suggested on his website, a defendant convicted of theft, but for stealing women’s underwear.

We believe it could also arise in a case wherein defendant goes to jury trial and is convicted of certain offenses that do not require registration, but acquitted of others that do require registration and the judge nonetheless finds that the crime took place as a result of sexual compulsion or for purposes of sexual gratification.  The defendant may have a medically diagnosed, long-standing condition of nymphomania, sexual compulsiveness or hypersexuality that is resistant to treatment and that has been a cause of criminal conduct.

It is important to understand that, depending upon the facts proven, admitted or stipulated to, an out-of-state conviction, federal conviction or a conviction in a military court may trigger an obligation to register under California Penal Code § 290 as well, even though that conviction did not require registration in another state (see Penal Code § 290(d)(4)).  A California judge may find that the conviction is the legal equivalent to a corresponding registrable offense in California.

Lastly, it is important to note that there is no discretionary registration in juvenile cases.

In closing, we wish to emphasize that while the discretion of a judge is broad in this area, we have never seen a judge exercise such power to order sex offender registration when not otherwise mandated by the specific conviction.  Instead, we have seen judges recognize the issue and instead order that defendant receive extensive sexual compulsiveness counseling and/or therapy to address the apparent issue(s).

For more information about sex offender registration issues, please click on the following articles:
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