May 27, 2014 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
There are few things more devastating than suffering a criminal conviction, which requires a lifetime requirement to register as a sex offender under California Penal Code 290.
Like many criminal defense attorneys in Los Angeles, I am often asked whether or not obtaining a dismissal (commonly known as expungement, even though it really does not expunge anything from your record) pursuant to Penal Code Section 1203.4 or 1203.4a will end the obligation to register as a sex offender.
Unfortunately, according to a recent decision by the California Court of Appeal, the answer is “no.” In People v. Hamdon, the first district court of appeal held that the requirement to require as a sex offender is not for the purposes of punishment, it’s merely “regulatory.” Citing language from a California Supreme Court case called In re Alva (2004) 33 Cal.4th 254,
“[T]he purpose and intent of registration are regulatory, as a means of assisting law enforcement in dealing with the serious problem of recidivist sex offenders. Moreover, registration is not punitive in effect notwithstanding the legislative intent. Registration has not historically been viewed as punishment, imposes no direct disability or restraint beyond the inconvenience of compliance, and has a legitimate nonpenal objective. Though registration may have incidental deterrent or retributive effects, and applies to conduct which is already a crime, these features are not sufficient to outweigh the statute’s regulatory nature.”
So what does this mean in plain English? It means that even though you may have successfully completed probation and even though you may qualify to have your conviction dismissed and set aside, you are still required to register as a sex offender.
So, aside from either being acquitted by a jury or having the case dismissed prior to trial, how does one avoid registering as a sex offender for life? Every case is different and there is no one-size-fits-all answer, but sometimes it is possible for a criminal defense attorney to negotiate the case down to a charge that is a non-registerable offense. Often this requires an evaluation from a forensic psychologist or psychiatrist to show the prosecutor that the defendant is not at risk of sexual violence. Other times a probationary disposition can be negotiated, which involves a short term of registration (even if the defendant is not convicted of a registerable offense. But this is a complex strategy and needs to be discussed thoroughly with an attorney. In other situations, counseling or sexual boundaries classes can be ordered for a period of time instead of registration.
But again, every sex offense case in California is different. If you or a loved one are accused of a sex offense in California, you can contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or (310) 210-0744 for a confidential consultation. You can also use this confidential email contact form.