Sex offenses in California are taken seriously. People who have been convicted of several sex offenses are considered a threat to the public. As a result, the legislature enacted certain statutes to keep them incarcerated. Also referred to as the ‘’Habitual Sex Offender Law, " California Penal Code 667.71 is a sentencing enhancement. It was enacted to keep in custody for a long time those considered to be repeat sex offenders. You will face severe repercussions if you are guilty of violating Penal Code 667.71. Some of the penalties you could face include a jail term that ranges from 25 years to life imprisonment. You will also be subjected to a mandatory registration as a California sex offender for the remainder of your life. Consult a skilled criminal defense attorney immediately if you are facing habitual sex offender charges.

Understanding ‘’Habitual Sex Offender’’

People who have been previously convicted of one or more sex offenses are considered habitual sex offenders according to Penal Code 667.71. The sexual violations listed under this law include:

  • Kidnapping under Penal Code 207(b)
  • Kidnapping to commit certain sex crimes under Penal Code 208(d)
  • Kidnapping with the intent to commit certain sex crimes under Penal Code 209(b)
  • Rape under Penal Code 261(a)(3) or 261(a)(6)
  • Spousal rape under Penal Code 262(a)(1)/262(a)(4)
  • Rape, sexual penetration in concert, or spousal rape under PC 264.1
  • Aggravated sexual assault of a child under Penal Code 269
  • Sodomy under Penal Code 286(c) or 286(d)
  • Lewd/lascivious acts under PC 288(a) or 288(b)
  • Oral copulation under PC 288a(c) or 288a(d)
  • Continuous sexual abuse of a child under PC 288.5
  • Sexual penetration under Penal Code 289(a) or 289(j)
  • Any crime committed in another state or country that includes all of the elements of any of the above violations

Expunged charges are not considered prior convictions according to Penal Code 667.71. However, some severe violations and felony charges cannot be expunged. A sex offense conviction will remain on your criminal record indefinitely and will not be removed after some time.

Elements Of Penal Code 667.71

The prosecutor must prove certain legal elements beyond a reasonable doubt for this law to apply to the charges. Some of the elements include:

Past Conviction For A Qualifying Sexual Violation

You must have at least one previous conviction for a specific serious sex violation listed under Penal Code 667.71. The prosecutor must provide sufficient evidence to show that the prior conviction occurred and that it is one of the qualifying violations listed in this statute.

Current Conviction For A Qualifying Sex Violation

You must also be convicted of a current violation of one of the qualifying violations listed under this law. This means you previously committed a qualifying sexual violation and are now convicted again for another qualifying sexual violation. Past qualifying sexual violations and new qualifying violations can earn you habitual sexual offender status.

Qualifying Violation From Another State

Penal Code 667.71 will also apply if the previous conviction happened outside California and the crime includes all the elements of a qualifying California sex crime. For example, a rape conviction from another jurisdiction with similar legal elements.

The Previous Conviction Must Be Admitted or Proven

The past conviction must be proven true by the judge or jury or admitted by the offender in open court. Some of the evidence includes your admission, fingerprint comparisons, past convictions, and certified court records.

The Past Conviction Must  Appear In The Charging Document

The prosecutor must include the past conviction in the accusatory pleading, like the complaint or information. He/she must inform you and the court that he/she is pursuing the habitual sexual offender enhancement. The enhancement cannot be applied if the prosecutor fails to allege the prior conviction.

Penalties For Violating Penal Code 667.71

You could face the following penalties if you are guilty under Penal Code 667.71:

  • A jail term of at least 25 years before qualifying for parole. The parole board will decide if you can be released after 25 years.
  • Mandatory lifetime sex offender registration. You will also be ordered to update your registration frequently with the local police. Failure to register will be treated as a separate crime.

The Relationship Between Penal Code 667.71 And California’s ‘’Three Strikes Law’’

A violation of Penal Code 667.71 is also referred to as a violent felony strike. Future convictions will result in prolonged jail terms under the Three Strikes Law.

Penal Code 667.71 And Probation

Probation is not allowed under Penal Code 667.71 because the law requires a mandatory prison sentence for life for offenders categorized as habitual sexual offenders. The court has no authority to put you on probation instead of prison time. This law was enacted to incapacitate repeat sexual offenders.

You can only be granted probation if the Penal Code 667.71 charges do not apply or are dropped. This can happen in the following circumstances:

Prior Conviction Is Invalid

If your attorney successfully challenges the previous conviction because of constitutional issues, the habitual sexual offender enhancement does not apply.

Charges Are Reduced

Your charges can be reduced if they do not trigger the habitual sexual offender statute. Probation can be possible in this situation, depending on the new charge.

Enhancement Is Not Proven 

The habitual offender enhancement will be dropped if the prosecution fails to prove the previous qualifying conviction. If this happens, you will only be sentenced for the underlying crime, and probation can be available based on the offense.

You will face the following restrictions if you are granted probation:

  • Regular reporting to a probation officer
  • Restrictions on social media or internet use
  • Restrictions on contact with minors
  • GPS monitoring
  • Mandatory sex offender treatment or counseling

Parole And Penal Code 667.71

Parole is the conditional release of a defendant before the completion of their maximum sentence. The defendant is allowed to stay in the community but under strict supervision rather than staying in custody. Some of the features of parole include:

  • Conditions of release include avoiding certain individuals or places, not committing another offense, and enrolling for treatment or counseling programs
  • Revocation possibility if you fail to comply with the terms of parole. This can attract a re-arrest and incarceration.
  • You must report regularly to a parole officer

Parole is freedom with restrictions because it is a supervised reintegration into the community.

How Parole Works And Eligibility

The minimum sentence you should serve must be at least 25 years in a state prison. You will qualify for a parole hearing after 25 years. During a parole hearing, the parole board will take into account several factors, including:

  • Psychological evaluations
  • Victim impact statements
  • Risk of reoffending
  • Engagement in rehabilitation programs, and
  • Your conduct while in prison

You could be denied parole if the board establishes that you still pose a danger to the community.

In most situations, the minimum parole period is ten years if you are convicted under Penal Code 667.71. However, exceptions also exist. For example, parole supervision will be 20 years or more if the crime involved a minor below 14 years. Sometimes, parole can be a lifetime if the victim was a child below 14 years old.

Defenses Against Penal Code 667.71 Charges

Some of the defenses you can use to fight Penal Code 667.71 charges include:

Lack Of Probable Cause For Arrest

The police must have a reasonable belief, based on evidence or facts, that you violated Penal Code 667.71 before arresting you. This is a requirement according to the Fourth Amendment of the U.S Constitution that protects suspects from illegal searches and seizures. The facts that can create probable cause include police observations, your confessions, surveillance video, physical evidence, and witness statements. Your arrest can be deemed unlawful if the police arrest you without sufficient facts.

Your criminal defense attorney can allege a lack of probable cause if:

  • The evidence used to justify your arrest is unreliable or was fabricated
  • Your arrest was based on bias or racial profiling
  • The law enforcement misinterpreted the facts
  • Your arrest was based on speculation or rumors, and
  • The arresting officer had no factual evidence associating you with the underlying offense

If the judge establishes that your arrest was made without probable cause, the evidence can be suppressed, or the charges can be dropped.

Constitutional Rights Violations

Your criminal defense attorney can allege that the police violated your rights guaranteed by the U.S Constitution, making the charges or evidence legally invalid. The rights often come from the following provisions:

  • The Fourth Amendment protects citizens from unreasonable searches and seizures
  • The Fifth Amendment protects people against self-incrimination
  • The Sixth Amendment, which gives offenders the right to an attorney and a fair trial
  • The Fourteenth Amendment, which gives offenders rights to due process and equal protection

The judge can remove the evidence obtained illegally or drop your case if the above rights are violated. The common constitutional violations in California include:

  • Due process violations like prosecutorial misconduct and withholding exculpatory evidence
  • Denial of the right to legal representation
  • Miranda rights violations
  • Forced or coerced confession
  • Arrest without probable cause, and
  • Unlawful search and seizure

Alibi Defense

An alibi defense is a defense in which an offender alleges that he/she was at another place when the alleged violation happened, making it impossible for them to have committed the crime. The prosecutor’s case will be weakened if your attorney proves beyond a doubt that you were somewhere else at the time of the offense. You must provide sufficient evidence showing that you were not at the crime scene for the alibi defense to be admissible in court. Some of the evidence you can present for this defense to succeed includes:

  • Timeline consistency where the alibi should match the actual time the offense happened.
  • Documentary evidence like work attendance records, credit card transactions, GPS location data, flight tickets, hotel receipts, and security camera footage
  • Reliable witnesses like security guards, hotel staff, co-workers, family members, and friends
  • Stating the specific time and place where you were at the time of the offense

Challenging Aggravating Factors

Aggravating factors are circumstances which can make a violation more severe, attracting severe penalties. In cases involving Penal Code 667.71, some of the aggravating factors include:

  • Premeditation or planning
  • Several victims
  • Kidnapping
  • Victim vulnerability
  • Great bodily injury to the victim
  • Use of a weapon
  • Intimidation or threats
  • Use of violence or force

The prosecutor can use the above factors to seek an enhanced life sentence. However, your attorney can allege that the prosecutor did not prove the aggravating factors needed for the enhanced sentence. This defense aims at eliminating or reducing the enhanced penalties. You can avoid the 25-year-to-life habitual offender sentence. Your criminal defense attorney can also claim that the prosecutor misinterpreted the law and violated your constitutional rights.

Prior Conviction Does Not Qualify

Your criminal defense attorney can claim that the past crime the prosecutor is relying on does not meet the legal threshold according to Penal Code 667.71. The sentence enhancement can be dropped if your attorney convinces the judge. Your attorney can present the following arguments for this defense to be admissible in court:

  • The alleged violation did not involve the required elements
  • The previous conviction happened in another jurisdiction
  • Insufficient evidence of the previous conviction
  • The previous conviction was reduced
  • The previous offense is not one of the listed crimes

Your attorney will review the following to prove that the previous conviction does not qualify:

  • Court transcripts
  • Sentencing records
  • Jury instructions from the previous lawsuit
  • Plea agreements, and
  • Charging documents

You Are A Victim Of Illegal Search And Seizure

The Fourth Amendment of the U.S Constitution protects defendants from unreasonable searches and seizures by the police. This law requires law enforcement to secure a valid warrant before searching you, your car, your home, or your property. If law enforcement violates this law, the evidence they obtained could be excluded from court according to the Exclusionary Rule.

A search can be deemed unlawful if:

  • An arrest lacked probable cause
  • The traffic officers stopped you without reasonable suspicion
  • The police searched the places not listed in the warrant
  • The warrant lacked probable cause
  • The law enforcement searched your car, phone, house, or person without a warrant and without a valid exception

However, the following situations can allow police to search without a warrant:

  • Automobile exception
  • Plain view doctrine
  • Consent searches, and
  • Emergencies

Your attorney can file a motion to suppress evidence under PC 1538.5 if the search was illegal.

Insufficient Evidence

Your criminal defense attorney can allege insufficient evidence if the prosecutor fails to provide substantial evidence to establish guilt beyond a reasonable doubt. This defense can be admissible in the following situations:

  • Where illegally collected evidence was removed
  • Where the prosecutor failed to prove the elements of the offense
  • Where there is weak circumstantial evidence
  • Where there is no physical evidence, and
  • Where there are no credible witnesses

The habitual offender enhancement can be dropped if the prosecutor fails to prove the elements associated with the offense.

You Are A Victim Of Mistaken Identity

You can also allege that you were wrongly identified as the perpetrator of the alleged offense. Mistaken identity can occur because of similar physical appearance, memory distortion, suggestive police procedures, cross-racial identification, or eyewitness errors. Your criminal defense attorney can use the following to prove a mistaken identity claim:

  • Inconsistencies in witnesses descriptions
  • Expert testimony
  • Cell phone location data
  • DNA evidence
  • Surveillance video, and
  • Alibi evidence

Your charges can be dropped if your attorney creates a reasonable doubt about your identity.

You Are A Victim Of False Accusation

You can use a false accusation as a defense if you did not commit the alleged offense, and the allegations are fabricated or untrue. Someone can raise false accusations against you in a sex case because of the following:

  • Mistaken identity
  • Pressure from others
  • Misunderstanding
  • Relationship conflicts
  • Custody disputes, or
  • Revenge

The strategies your attorney can use in a false accusation defense include:

  • Claiming a coerced confession
  • Alleging mistaken identity
  • Claiming alibi evidence
  • Proving motive to lie
  • Alleging a lack of physical evidence, and
  • Using inconsistent statements

The judge will drop your charges if your attorney successfully convinces the court.

Coerced Confession

You can use the coerced confession defense if you are accused of violating Penal Code 667.71. Your criminal defense attorney can claim that you made the confession through intimidation, threats, pressure, or improper police tactics. The law enforcement cannot force you to confess under the Fifth Amendment and due-process law. The judge will drop your charges if he/she establishes that you were coerced into confessing.

Find an Experienced Criminal Defense Attorney Near Me

The California habitual sex offender law is outlined under PC 667.71. A person convicted of two or more qualifying sexual crimes could face imprisonment of 25 years to life. Convicted offenders are also subject to a lifetime registration as sex offenders and face strict residency restrictions. The qualifying sex offenses include rape, spousal rape, sodomy, and aggravated sexual assault of a child, among others.

A conviction as a habitual sex offender is not eligible for expungement under the law. If you face charges under PC 667.71 and require reliable legal guidance, contact the Los Angeles Criminal Lawyer. Call us at 310-502-1314 to speak to one of our attorneys.