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Name: People v. Toloy
Case #: H041657
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/26/2015

Each time a Penal Code section 290 registrant is released from custody after being incarcerated for more than 30 days, he must be notified that he has a duty to reregister as a sex offender. Toloy was a sex offender who had registered with police at least 20 times since his release from prison in 2011. (See Pen. Code, § 290.) He served time in custody on seven occasions for parole violations, including in 2014, when he served two months in jail. When he was released from jail in April 2014, he was not informed that he was required to reregister within five days. In May 2014, he was arrested and charged with failing to register. (Pen. Code, § 290.015.) He was convicted and appealed. Held: Affirmed. When a person who must register as a sex offender is released from custody after being incarcerated for 30 days or more, he or she must register within five working days of his release. (Pen. Code, § 290.015, subd. (a).) Section 290.017, subdivision (a) provides that the sex offender must be informed of the duty to register prior to his release from custody. Here, the Court of Appeal rejected the Attorney General’s argument that section 290.017 did not require repeated notifications upon each release from custody. “Section 290.017’s express language does not limit its notification provisions to a section 290 registrant’s initial release from confinement.” The legislative history of section 290.017 and related statutes supports this conclusion.

The failure to advise a registrant of the duty to register after each release from 30 or more days in custody is not a defense to a section 290.015 charge. Toloy also argued that the jail officials’ failure to comply with section 290.017 when he was released from jail meant that he could not be convicted of failing to reregister. The Court of Appeal disagreed. Although there was no evidence that Toloy was informed of his duty to reregister when he was released, this violation of section 290.017 does not mean that Toloy could not be convicted of failure to reregister because section 290.017 is directory rather than mandatory. The distinction between directory and mandatory requirements is based on whether the failure to comply with a procedural requirement will or will not have the effect of invalidating the governmental action to which the requirement applies. The basic question is whether invalidation is necessary to promote the statutory design. The current sexual registration statutory scheme does not provide that failure to give a required notice is a defense to a failure to register charge, although former section 290, subdivision (l) did provide for such a defense in certain circumstances. The Legislature’s elimination of this defense in the 2007 revisions to the scheme demonstrates its intent to preclude it. Because there was substantial evidence that Toloy had actual knowledge of his duty to register after his April 2014 release from jail, the failure to notify him of this duty did not preclude a conviction for failing to register.