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PC 288(a) & PC 290.5 Tier System Confusion in CA’s New Termination of Sex Offender Registration Law

As a sex crimes criminal defense attorney, one of the most common questions I am asked is ‘does a PC 288(a) conviction require a tier-two or tier-three sex offender registration requirement under California’s new sex offender registration tier system?’ Well, the answer is that it depends on several factors unique to the defendant's conviction.


In other words, a PC 288(a) conviction, also known as a conviction for lewd and lascivious act upon a child under fourteen (14), may be classified as either a tier two (20-year sex offender registration requirement), or a tier three (lifetime sex offender registration requirement) under California’s new PC 290.5 law "Termination of Sex Offender Registration Requirement."


In this article, we discuss the confusion related to the application of PC 290.5 for PC 288(a) crimes, how to correctly identify the proper tier level for registrants convicted of Penal Code 288(a), how to dispute a tier-level designation from the Department of Justice (DOJ), how to petition the court for termination of sex offender registration after a PC 288(a) conviction, and other post-PC 288(a) conviction relief options.


Note: This article does not discuss the termination of sex offender registration requirements for non-PC 288(a) cases. The reason is that most sex crimes, and their respective tier-level designation, is straight forward and easy to understand, but PC 288(a) tier level designation has caused great confusion, even among criminal defense attorneys who do not practice sex crimes post-conviction relief law.


For information on Termination of Sex Offender Registration for non-PC 288(a) crimes, see PC 290.5 Petitions, Duty to Register as a Sex Offender, and California’s New Sex Offender Three-Tiered Sex Offender Registration Law.


Confusion Related to PC 288(a) Tier Level Designation


Confusion in PC 290 Law: Part of the confusion as to whether a PC 288(a) falls under tier two or a tier three classification stems from the language of law of PC 290 itself. The law's only reference to PC 288(a) is in tier three (PC 290(d)(3)), but certain conditions must apply for PC 288(a) to be considered a tier three classification. If those conditions don’t apply, the reader must figure out what tier level he is in by reference to other obscure laws, such as PC 1192.7(c), PC 667.5(c), PC 290.004, and so forth. For non-lawyers, this can be difficult to navigate.


Confusion in PC 290.5 Legal Forms: Another reason there is confusion as to whether PC 288(a) falls info a tier two or tier three classification is that the forms that are required in any petition to terminate sex offender registration refer to a PC 288(a) conviction as a tier three. As stated, this is a proper classification in some PC 288(a) cases, but not all PC 288(a) cases.


Confusion in PC 288(a) v. 288a: Furthermore, confusion as to whether a PC 288(a) conviction falls under a tier two or three classification under California’s new three-tiered sex offender registration law is caused by the fact that PC 288(a) and PC 288a look very similar, but in fact, they are very different laws. PC 288(a) refers to a lewd and lascivious act upon a child under the age of fourteen, and PC 288a refers to oral copulation crimes that were charged before 2017. Some former PC 288a crimes are classified as tier three level registration without exception.


Note: In 2017, and before the passage of PC 290.5 (Termination of Sex Offender Registration Petitions) oral copulation crimes were charged under PC 288a, which obviously looks very similar to PC 288(a) to persons who do not practice criminal defense law. To avoid further confusion between these penal code sections, the law of oral copulation crimes was changed from PC 288a crimes to PC 287 crimes, while PC 288(a) remained the penal code section that reference the crime of lewd and lascivious act on a child under 14.


How to Properly Identify PC 288(a) Tier Level Designation


A PC 288(a) conviction, also known as a conviction for lewd and lascivious act upon a child under fourteen (14), is classified as a tier two, twenty (20) year duty to register as a sex offender, under California’s new tier system for sex offender registration, unless any of the following apply:


The defendant’s conviction for PC 288(a) follows a conviction for a registerable offense (Prior sex crimes conviction) [PC 290(d)(3(A) Abbrev.)]


The defendant’s conviction for PC 288(a) required a commitment to a state mental hospital as a sexually violent predator (PC 290(d)(3)(B) Abbrev)).


The defendant’s PC 288(a) conviction was in connection to attempted murder (PC 290(d)(3)(C)(i) Abbrev.)).


The defendant’s PC 288(a) conviction was committed during the course of a kidnapping (PC 290(d)(3)(C)(ii) Abbrev.)).


The defendant’s risk level on the static risk assessment instrument for sex offenders (SARATSO & STATIC-99) is well above average risk at the time of defendant’s release into the community (PC 290(d)(3)(D) Abbrev.).


The defendant was convicted of two or more violations of penal code 288(a) in separate proceedings, which were tried separately (PC 290(d)(3)(F) Abbrev.).


The defendant was ordered to register as a sexually violent predator after a conviction for PC 288(a) (PC 290(d)(3)(H) Abbrev.).


When Is My Tier Level Designation Assigned


A tier level for PC 288(a) is assigned within twenty-four (24) months after the defendant’s release from custody or release from probation. In some cases, a PC 288(a) designation may be classified as “to be determined” while the Department of Justice (DOJ) attempts to place the defendant in the proper tier level. When the classification is "to be determined," the PC 290 registrant must continue to register as a sex offender until the correct classification is resolved.


How to Dispute Tier Level Designation in PC 288(a) Cases


A tier level designation for penal code 288(a) crimes may be disputed by using the “Department of Justice Tier-Level Dispute Form.” For more information on disputing a PC 290 tier level for PC 288(a) crimes, contact our sex crimes criminal defense lawyers for a free consultation.


How to Petition the Court for Termination of Sex Offender Registration (PC 290.5)


To petition the court for termination of sex offender registration pursuant to PC 290.5, please see our page on termination of sex offender registration. Keep in mind that the page on termination of sex offender registration is general information; PC 288(a) crimes require more careful analysis due to confusion of tier-level designation PC 288(a) convictions.


Parole Length Unchanged


As stated, a Penal code 288(a) conviction requires either a two-two (20 years sex offender registration) or tier-three (life-time sex offender registration). Either way, the parole length after a prison sentence for PC 288(a) does not change. The minimum parole length for PC 288(a) convictions is twenty years from the date of release on parole, but this length of parole may be extended or shortened under certain conditions. For more information, contact our sex crimes criminal defense attorneys for a free consultation.


More PC 288(a) Post-Conviction Relief Options


Additional post-conviction relief options for PC 288(a) crimes include: withdraw of a guilty or “no contest” plea; appeal the felony conviction after trial; apply for a direct pardon from the California Governor, and more.


For more information on the law regarding termination of sex offender registration for lewd and lascivious act upon a child under 14 (PC 288(a)), or more information on California’s new sex offender tier level designation for PC 288(a) convictions, contact our sex crimes criminal defense attorneys today for a free consultation. Our award-winning sex crimes defense lawyers have successfully handled hundreds of lewd and lascivious act cases in the Inland Empire, including the cities and court of Redlands, Ontario, Rancho Cucamonga, Fontana, Rialto, Victorville, Riverside, Colton, Yucaipa, San Bernardino, and more. Call today!


909-913-3138


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