What is the current state of the law on the defense of forgetting to register?

A trial court must instruct on a defense "only if substantial evidence supports the defense." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.) Because there was no evidence meeting the Sorden standard, the trial court properly instructed that forgetting "by itself" was not a defense.

Nor do we accept defendant's view that the instruction permitted the jury to convict him even if it found his mental state precluded actual knowledge. The jury was instructed that, in order to prove willfulness, the People had to show defendant did something "willingly or on purpose." The challenged instruction did not tell the jury to ignore defendant's mental state, it merely stated--correctly--that forgetting to register was not "by itself" a defense. The unrebutted arguments of defense counsel made the defense theory clear. (See People v. Hughes (2002) 27 Cal.4th 287, 363 ["defense counsel's unrebutted closing argument . . . emphasized and 'pinpointed' for the jury the defense theory" that intent to rob was formed after killing].) Although the People vigorously (and properly) contested whether the facts supported the defense, they did not challenge its viability.

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In short, the trial court's instruction that forgetting "by itself" was not a defense was correct on these facts.⁴