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Habitual Sex Offender

What is a Habitual Sex Offender?

California Penal Code 667.71 PC imposes a state prison sentence of 25-years-to-life for habitual sex offenders. It's legally defined as someone convicted of certain sexual-related offenses, then convicted again later of the same sex crime or another qualifying sexual offense.

Habitual Sex Offender Law in California – Penal Code 667.71 PC
Penal Code 667.71 imposes severe penalties for sex offenders with prior sex-related convictions.

The California criminal justice system deems sex crimes a severe matter. Sex offenders with multiple felony sex crime convictions are believed to pose a threat to the public.

In response to this serious threat to society, the state legislators have passed specific laws to keep them incarcerated. Charges expunged don't count as a prior conviction under Penal Code 667.71 PC.

However, readers should note that the most serious sexual-related charges and felonies can't be expunged in California in the first place. Further, sex crime convictions typically remain on someone's criminal record permanently and are not removed after some time.

A habitual sex offender is an individual who has been convicted of a specific sex crime and then gets convicted again of the same crime or another listed sex offense. Some examples of how someone can be deemed a habitual sex offender include:

  • An individual is convicted of rape, serves prison time, and is again convicted of rape after being released from prison;
  • An individual is convicted of sodomy, then is convicted of lewd acts with a minor;
  • An individual is convicted of oral copulation with a minor two times.

In this article by our Los Angeles criminal defense attorneys, we will examine this topic in much more detail below to better understand this law.

What Are the Qualifying California Sex Offenses?

Qualifying sex offenses for habitual sex offender designation are listed within the California Penal Code at 667.71(a) PC. They are as follows:

  • Rape – Penal Code 261 PC,
  • Rape, spousal rape, or penetration in concert – Penal Code 264.1 PC,
  • Lewd or lascivious acts – Penal Code 288 PC,
  • Sexual penetration with a foreign object – Penal Code 289 PC,
  • Continuous sexual abuse of a child – Penal Code 288.5 PC,
  • Sodomy – Penal Code 286 PC,
  • Oral copulation with a minor – Penal Code 287 PC,
  • Kidnapping – Penal Code 207 PC,
  • Kidnapping to commit a sex crime – Penal Code 208 PC,
  • Aggravated sexual assault of a child – Penal Code 269 PC,
  • Any offense in another jurisdiction that mirrors a California offense.

Any combination of the crimes listed above will result in habitual sex offender status after the second conviction.

What are the Potential Penalties? 

Being deemed a habitual sex offender will significantly increase potential penalties imposed by a court. If someone is considered a habitual sex offender, they are guilty of a felony and can face 25 years to life in state prison.

If the individual is released from prison, they face the requirement to register as a sex offender for life. There is generally no possibility of probation for a habitual sex offender conviction.

Related Content: Spousal Rape Law Repealed in California

Can this Crime Be Expunged?

No. Felony convictions in California cannot be expunged, so a conviction as a habitual sex offender is not eligible under state law. The best way to avoid a lifetime criminal record that shows a sex offense conviction is to avoid getting the sentence in the first place with the best defense possible.

Sex offense crimes are viewed and treated the most harshly by judges and courts across the country. California is no different.

What Are Some Related Sex Offenses?

In California, there are two state offenses related to habitual sex offenders under PC 667.71(a); they are rape or lewd acts with a minor child. They are defined as follows.

Penalties for Habitual Sex Offender in California
Habitual sex offenders will face a significant increased penalty of 25 years to life in state prison.

Penal Code 261 PC – Rape. This California law prohibits a forced non-consensual sexual act accomplished by threat, force, fraud, or with a victim who is not capable of consent.

 A conviction will result in a felony on your criminal record and can result in three, six, or eight years in a California state prison. If the victim in the case is a minor under the age of 18, then the punishments are raised to seven, nine, or eleven years in prison. If the victim in the case is a minor under the age of 14, then the punishments are raised further to nine, eleven, or thirteen years in prison.

Penal Code 288 PC – Lewd acts with a minor child. This California law prohibits anyone from touching a child under the age of 16 for sexual purposes or causing the child to touch themselves or another for sexual purposes. Convictions can result in lengthy state prison time.

What About Spousal Rape?

Spousal rape involves an individual engaging in sexual intercourse with their spouse without consent. It is a non-consensual act accomplished by threat, force, fraud, or with a spouse unable to consent.

Spousal rape original could be located at 262 PC and was a law in California for many years that resulted in more lenient sentences for spousal rape convictions. The law has since been repealed by Assembly Bill 1171, signed into law in October 2021.

What Defenses Are Available Against a Habitual Sex Offender Charge?

The only way to avoid a habitual sex offender designation if you have a previous sex offense conviction is to avoid being convicted a second time. Several defenses can exist for a sex offense charge. The most common defenses to a sex offense charge include:

  • False accusation. This involves attacking the accuser's credibility and alleging that the allegations are untrue;
  • No physical evidence. This involves attacking the strength of the case as physical evidence should have been present and is not;
  • Police misconduct. This can involve Constitutional violations such as coerced confessions or illegal searches.

Perhaps we argue that the police lacked probable cause to arrest you, which means there must be a reasonable belief you committed a crime.

Defenses for a Habitual Sex Offender Charge
There are several legal defenses we can potentially use to avoid a habitual sex offender designation.

Each case is unique, so it is critical to have an experienced criminal defense attorney evaluate your case to determine the best available defense. In some cases, we might be able to successfully negotiate with the prosecutor for lesser charges or even get the case dropped.

Also, prefiling negotiations with law enforcement and the DA's Office might be an option to persuade them from filing formal criminal charges before the first court appearance, commonly known in the legal field as a “DA reject.”

Suppose you or a family member was accused of violating California Penal Code 667.71 PC. In that case, you will need to consult with experienced legal counsel to review all the details and legal defense strategies moving forward.

Eisner Gorin LLP is located in Los Angeles, and we serve people throughout the state of California. You can contact our firm for an initial case review by calling (310) 328-3776 or filling out the contact form.

Related Content: 
Sex or Pornography Addiction as Mitigating Sentencing Factor

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