What is a “Habitual Sexual Offender?”
A “habitual sexual offender” is a person who has been convicted of any sex crime listed in California penal code section PC 667.71(c), and who has previously been convicted of one or more sex crimes listed in that same section (See PC 667.71(c) List of Crimes).
Example: In 2023, Jason is convicted of the crime of lewd and lascivious act upon a child under fourteen (PC 288(a)). In 2013, ten years before Jason’s 2023 PC 288(a) conviction, he was convicted of the same offense against a different victim. Result: PC 288(a) is a crime listed in PC 667.71(c). Therefore, upon Jason’s second PC 288(a) conviction, he will be considered a “habitual sexual offender.” This assumes Jason is charged with the special PC 667.71 allegation along with his subsequent PC 288(a) charges, and that allegation is found true by the trier of fact.
Separate Conviction in Separate Proceedings Required
Per PC 667.71, a separate conviction in a separate proceeding is required for the defendant to be classified as a “Habitual Sexual Offender.” Also, as stated, the special PC 667.71 allegation must be plead and proved against the defendant before the defendant will be classified as a "Habitual Sexual Offender."
Example: In 2023, David is convicted of three counts of lewd and lascivious act upon a child under fourteen (PC 288(a)). All three of David’s PC 288(a) charges were part of the same criminal proceeding and David has no criminal history prior to his 2023 conviction. Result: David will not be classified as a “Habitual Sexual Offender” under PC 667.71 because all three PC 288(a) convictions were in the same proceeding.
Not all California sex crimes qualify as “habitual sexual offender” crimes in California. Only the sex crimes listed in PC 667.71(c). California sex crimes that are notably absent from the “Habitual Sexual Offender” statute include indecent exposure (PC 314), annoy or molesting a child (PC 647.6), possession of child pornography crimes (PC 311.1, 311.11, 311.311.(c)(2), & More), incest (PC 285), sexual battery (PC 243.4), lewd and lascivious act upon a minor 14 or 15 years of age (PC 288(c)(1)), statutory rape (PC 261.5), revenge porn (PC 647(j)(4)), pimping, pandering, and prostitution crimes (PC 266, 266h, 266i, & PC 647(b)), send harmful material to a minor (PC 288.2), and a few more.
Example: In 2018, Rosa is convicted of indecent exposure (PC 314). Subsequently, in 2023, Rosa is convicted of sending harmful material to a minor (PC 288.2). Result: Rosa will not be classified as a “Habitual Sexual Offender” under PC 667.71. This is true even though both PC 314 and PC 288.2 are classified as registerable sex crimes in California. This is because neither PC 314, nor PC 288.2 is a crime covered by the “Habitual Sexual Offender” statute.
Also, some categories of sex crimes have subsections that may, or may not, be listed in PC 667.71. In other words, it is not the name of the sex crime offense that controls whether it is listed in PC 667.71, but rather, the seriousness of the alleged sex crime offense.
Example: the crime of oral copulation, charged as PC 287(b) [oral copulation on a minor under 18], is not included in the list of crimes in PC 667.71(c); however, the crime of oral copulation, charged as PC 287(c) [oral copulation by force], is a crime covered under the PC 667.71(c) statute.
PC 290(c) List of Crimes Related to “Habitual Sexual Offender”
The following sex crimes are listed as registerable sex offenses in California (Abbrev. List).
Rape in Concert… charged as PC 264.1
Sexual Penetration in Concert… also charged at PC 264.1
Sexual Penetration… charged as either PC 289(a) or PC 289(j)
Continuous Sexual Abuse of a Child… charged as PC 288.5
Oral Copulation… charged as PC 287(c) or PC 287(d)
Kidnapping to Commit a Sex Crime… charged as PC 209(b)
Aggravated Sexual Assault of a Child… charged as PC 269
Note: The list of crimes in PC 667.71 does not include a few of the most serious sex crimes, including PC 288.7 (sexual conduct against a child under 10). The reason for an exclusion of the some of the most serious sex crimes from the “Habitual Sexual Offender” statute is curious, but it is probably because these crimes already carry a life sentence upon conviction.
PC 667.71 Punishment
Prison Sentence: The "Habitual Sexual Offender" shall be punished by imprisonment in the state prison for 25 years to life (PC 667.71(b)). Also, no part of the habitual sexual offender’s prison sentence may be served out of prison on work release (aka “split prison sentence”) or suspended (aka “Joint Suspended Prison Sentence”) [PC 667.71(e) Abbrev.].
Note: The 25 years to life prison sentence for habitual sexual offenders only applies if the defendant’s status as a habitual sexual offender is alleged in the accusatory pleading (criminal complaint), and the defendant either admits the PC 667.71 special allegation in open court, or the special allegation of PC 667.71 is found to be true by the trier of fact (i.e., jury or judge in “court trial”) (PC 667.71(f) Summarized).
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. However, a probation sentence is not available for a defendant who is found to be a “Habitual Sexual Offender” (PC 667.71(e) Abbrev.).
Sex Offender Registration: A person convicted of any crime listed PC 667.71(c) is required to register as a sex offender for the remainder or his or her life (See Sex Offender Registration Requirements and California’s Tier System for Sex Offender Registration.
Additional Punishment: In addition to any prison sentence, if found guilty of the “Habitual Sexual Offender” statute, or PC 667.71, the defendant will suffer direct and indirect negative consequences and punishments related to military service, professional licensing, immigration status, civil lawsuits from victims, restitution to victims, criminal protective orders in favor of victims, court fines and fees, loss of scholarship for schooling, lengthy parole after prison, and more.
PC 667.71 Defenses
Every “Habitual Sexual Offender” special allegation is different. With that said, common defenses to PC 667.71 allegations include insufficient evidence to prove the underlying sex crimes offense, coerced confession, illegal Search and Seizure by law enforcement that leads to the inadmissibility of evidence, alibi defense, consent to sexual conduct (Not applicable in sex crimes against minors), insanity, and more.
Limitations on Consent Defense: The defense of consent does not apply to sex crimes cases where the victim is a minor in California (Under 18 years of age), or where the defendant could not consent (disabled victim, unconscious victim, intoxicated victim, confined victim, etc.).
Note: Depending on the circumstances, the statute of limitations defense might apply in some penal code 667.71 cases. The statute of limitations defense, as applied to serious and violent sex crimes listed in PC 667.71, is a complex subject beyond this overview. For more information, See Statute of Limitations in Sex Crimes and contact our Sex Crimes Defense Lawyers for a free consultation.
For more information about California’s “Habitual Sexual Offender” statute, or penal code 667.71, contact our sex crimes criminal defense attorneys today for a free consultation. Our sex crimes defense team has successfully handled hundreds of sex crimes in the Inland Empire. Our award-winning trial attorneys will patiently explain your rights and defense options. We are available every day of the week for expert advice. Call today!
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