When will a judge strike down a discretionary registration order made by a defendant at a hearing to reinstate her probation?

California, United States of America


The following excerpt is from People v. Himmelspach, C084970 (Cal. App. 2019):

We need not address these contentions because there is a more fundamental objection to the registration order, which the People properly point out: the trial court could not lawfully make that order at a hearing reinstating defendant's probation. A discretionary registration order under section 290.006, subdivision (a) may issue only if the court makes the required findings and states the required reasons for the order "at the time of conviction or sentencing." ( 290.006, subd. (a), italics added; People v. Allexy (2012) 204 Cal.App.4th 1358, 1363.) The court did not make any registration order or offer any findings and reasons to support such an order when defendant entered her plea ("the time of conviction"), and "the time of . . . sentencing" had not arrived because the court did not impose sentence at the violation of probation hearing. Therefore, the order is unauthorized and we must strike it.

The People contend this court can salvage the order by deeming it made only for the term of defendant's probation. We decline to do so. If a distinction is to be drawn between lifetime registration and registration for the duration of probation (People v. King (2007) 151 Cal.App.4th 1304, 1308-1309), this decision must be made by the trial court in the first instance.

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