Will Reduction of a Felony to a Misdemeanor End 290?

In April 2006, defendant Junaid Manzoor pleaded guilty in Contra Costa County Superior Court to felony attempt to distribute harmful material to a minor in violation of Penal Code sections 664 and 288.2.  

The trial court judge suspended imposition of his sentence and placed him on formal probation for three years with a 90-day jail term, which he was allowed to satisfy with electronic home monitoring in Santa Clara County.  As a result of his felony conviction, Mr. Manzoor was required to register as a sex offender for life pursuant to former Penal Code § 290(a)(2)(A).  

In February 2020, nearly fourteen years after his conviction and well after he completed probation, Mr. Manzoor successfully petitioned the trial court to exercise its discretion under Penal Code § 17(b)(3) to reduce his felony to a misdemeanor and then under Penal Code § 1203.4 to dismiss the case.  His obligation to register as a sex offender, however, remained.

Thereafter, effective January 1, 2021, the Sex Offender Registration Act (Penal Code § 290, et seq.) was amended by the Legislature under Senate Bill No. 384 to provide for a tiered system of registration period that depended on the offense for which the defendant was convicted.

Under the amended version of § 290, a defendant who is convicted of a “felony conviction of Section 288.2” is considered a “tier three offender” and still subject to lifetime registration.  

The current version of the statute does not expressly mention misdemeanor violation of § 288.2.  However, under Penal Code § 290.006, “[a]ny person . . . who is not required to register pursuant to Section 290 can only be required to register for life if the court finds, upon consideration of certain statutorily enumerated factors, including his or her behavior before and after conviction and his or her present risk of re-offense, that lifetime registration is appropriate.”  Penal Code § 290(c).

In other words, if Mr. Manzoor were convicted today of a misdemeanor violation of Penal Code § 288.2 (as opposed to having his felony conviction reduced to a misdemeanor), he would not be subject to a mandatory lifetime registration requirement unless the court considers specific factors and states its reasoning on the record.  

In November 2021, Mr. Manzoor filed a petition for relief from the sex offender registration requirement in Alameda County, where he resided and was required to register.  He argued that under recent amendments to § 290, the current version of the statute “provides no obligation to register for those convicted of misdemeanor 288.2.” even though a felony conviction of 288.2 was a “tier three” offense subject to lifetime registration.

He argued that his registration obligation was therefore under tier one (registration for ten years) unless otherwise directed by the sentencing court, which was not so directed in his case.  He therefore argued he was eligible for relief from registration.

The local law enforcement agency submitted a report stating that Mr. Manzoor was required to register for life.  The prosecutor in Alameda County also argued that the petition should be denied because Mr. Manzoor was a lifetime registrant under tier three. 

In February 2022, the trial court judge denied Mr. Manzoor’s petition because he found that Mr. Manzoor did not qualify for relief because he was a lifetime registrant.

Mr. Manzoor then appealed to the First Appellate District Court, arguing that when the court reduced his felony to a misdemeanor, it also resulted in a reduction in his registration obligation from lifetime (tier three) to ten years (tier one).

The First Appellate District affirmed the trial court, noting that Penal Code § 17(e), as added in 1998, states that noting in Penal Code § 17(b) authorizes a judge to relieve a defendant of the duty to register as a sex offender under Section 290 if the defendant was charged with and convicted of a sex offense that required registration.  

People v. Kennedy (2011) 194 Cal. App. 4th 1484, a Sixth Appellate District ruling, considered the effect of a 17(b)(3) reduction in an attempted 288.2 conviction from a felony to a misdemeanor, like Mr. Manzoor.  Mr. Kennedy, after his conviction was reduced to a misdemeanor, argued that he no longer had to register because a misdemeanor violation of 288.2 is not listed under Section 290.  The Sixth Appellate District ruled that Mr. Kennedy’s sex offender registration obligation was not terminated by the reduction of the charge to a misdemeanor.

The First Appellate District therefore ruled that Mr. Manzoor remained a tier three registrant, not a tier one, and therefore he was ineligible for relief under the amended version of 290.