Penal Code § 667.71 sets forth this punishing sentence enhancement. Under § 667.71, a “Habitual Sex Offender” is someone convicted of any one of thirteen specified felony sex crimes and then later convicted of the same felony or another sex specified sex crime. The first conviction may be from outside California.
It merits mention that under § 667.71(d), the legislature stated that a judge cannot strike a prior conviction under § 1385 (“in the interest of justice”) to help a defendant avoid the mandatory twenty-five years to life sentence. In other words, there is no way a defendant can avoid such a sentence like a “Third-Striker” might by having a
motion granted.
For a judge to impose this heavy twenty-five years to life sentence on defendant, the prosecutor must allege this sentencing enhancement in the complaint. In other words, if the complaint or information does not allege that such a sentence enhancement applies, the judge may not impose it. Naturally, a good defense attorney would ask the prosecutor to strike such an allegation if the equities in the case suggest such a draconian sentence would be inappropriate in the case.
For example, striking such an allegation may be appropriate if defendant had one of the thirteen conviction at age 19, perhaps with mitigating circumstances (due to alcohol or drug use, a coerced confession, mistaken identity, etc.). Then at age 53, he was again arrested for such behavior, but the victim may have her own credibility issues and the defendant lived a crime-free live since age 18. Under such facts, the prosecutor may agree to strike the habitual sex offender sentence enhancement allegation, thereby preventing the judge from imposing such a heavy sentence.
The new law concerning tiered sex offender registration requirements, Senate Bill 384 (SB 384), does not modify Penal Code § 667.71 in any way.
In the past, there have been other legislative attempts to safeguard the public from such individuals through residency restrictions that prohibited the individual from living within 2,000 of any school, lengthened parole periods to up to ten years and requirements that such folks continuously wear a GPS monitor that police could track.