Metropolitan News-Enterprise


Tuesday, August 31, 2004


Page 1


State Supreme Court Rules:

Forgetfulness No Defense to Sex Offender Registration Charge


By KENNETH OFGANG, Staff Writer/Appellate Courts


Mere forgetfulness is no defense to a charge of failing to update one’s registration as a sex offender, the California Supreme Court ruled yesterday.

In a 6-1 decision, the justices affirmed Donald Barker’s conviction for failing to complete a new sex offender registration form within five working days of his birthday in 2000.

“Section 290 imposes a duty upon all registrants, once they have received and understood advisement of the duty to register, to remember and fulfill that legal obligation,” Justice Janice Rogers Brown wrote for the court. “We do not believe the Legislature intended that a defendant could successfully evade this duty by claiming that ‘I totally forgot about it.’”

Kennard Dissents

Justice Joyce L. Kennard was the lone dissenter, arguing that it is impossible to “willfully” fail to comply with an obligation if one forgets that he is so obligated.

Barker, a convicted rapist sentenced to nine years in prison by a San Mateo Superior Court judge for violating the registration update requirement of Sec. 290(a)(1)(C), was in a residential program at the time of his arrest. He testified that he had been notified of the requirement but was “too busy” with his duties as a house manager and “totally forgot about it.”

The testimony was that the five-day period ended on a Friday, and the following Monday a police officer assigned to processing registrations called him. He returned the call within 15 minutes and went to the station within an hour to register, a fact cited by the judge in sentencing him as a second- rather than a third-strike offender.

Barker had 10 prior convictions for serious or violent felonies, including several violent sexual assaults on elderly women, and served three separate prison terms. Judge Dale A. Hahn struck nine of the 10 prior for three-strikes sentencing purposes and imposed a three-year upper term, doubled under the second-strike provision, plus three one-year enhancements.

Hahn correctly instructed the jury that forgetfulness was not a defense, Brown wrote. Barker knew he had to register because he was told of the requirement, which he admitted, the justice said.

Brown cited Wright v. Superior Court (1997) 15 Cal.4th 521, in which the court—also in an opinion by Brown—held that failure to register at a new address was a continuing offense, so that a defendant who claimed to have moved at a time when the crime was a misdemeanor was subject to a new law, in effect at the time of his arrest, elevating the offense to a felony.

Requiring the prosecutor to prove that the defendant moved after the date of the new law would be inconsistent with the purpose of the statute, Brown wrote in Wright.

‘Straightforward’ Matter

Similarly, she said yesterday, proving a violation of the registration statute should be a “straightforward” matter of presenting documentary evidence that the defendant was advised of the requirement and did not comply, rather than forcing the prosecutor to show that the defendant had been reminded of the duty to register.

“In summary, we conclude that countenancing excuses of the sort given by defendant—that he just forgot about his registration obligation—‘would effectively “eviscerate” the statute’ just as surely as characterizing violation of the statute as an instantaneous offense [in Wright] would have eviscerated it,” Brown wrote.

Kennard argued in dissent that the majority’s interpretation of the law left a defendant who registers a day late, such as Barker, and whose lateness is inadvertent, open to harsh penalties, including a potential life sentence if the Three Strikes Law is held applicable.

Such a penalty, she said, might constitute cruel and unusual punishment. Rather than countenance a potentially unconstitutional construction of the statute, she argued, the court should interpret it as applying only where the failure to register is not inadvertent.

The case is People v. Barker, 04 S.O.S. 4744.


Copyright 2004, Metropolitan News Company