California Senate Bill 145, signed by Governor Newsom on September 11, 2020, gave judges discretion over sex offender registration in cases involving voluntary oral sex, anal sex, or sexual penetration with a minor aged 14 to 17, when the older person is no more than 10 years older. That same discretion had existed for vaginal intercourse since 1944. SB-145 did not change the criminal penalties for any of these offenses. It changed only whether registration is automatic or decided by a judge.
What The Law Actually Changed
For decades, California’s registration law drew a line between types of sexual acts. When an adult had voluntary vaginal intercourse with a 14-to-17-year-old and was no more than 10 years older, a judge could weigh the circumstances and decide whether the sex offender registry made sense. Registration was not automatic.
For oral sex, anal sex, or sexual penetration in the exact same factual situation, registration was mandatory. The judge had no discretion, even when the prosecutor agreed the registry served no purpose.
SB-145 erased that split. It extended judicial discretion to convictions under Penal Code sections 286(b), 287(b), and 289(h) and (i), aligning them with how section 261.5 already worked.1California Legislative Information. SB-145 Sex Offenders Registration When the qualifying conditions are met, a judge now evaluates the specifics of the case rather than imposing registration by default.
The disparate impact on LGBTQ+ young people drove much of the push for the change. Under the old framework, a 19-year-old convicted of voluntary oral sex with a 17-year-old had to be placed on the registry, while a 19-year-old convicted of voluntary vaginal intercourse with the same 17-year-old might avoid it if the judge found registration unnecessary. Same-sex couples faced mandatory registration where opposite-sex couples in identical factual situations did not.
Criminal Penalties Are Unchanged
The most widespread misconception about SB-145 is that it legalized or softened sexual activity with minors. It did neither. Every offense covered by the bill carries the same punishment it always has. The bill answered one narrow question: after conviction and sentencing, does registration happen automatically, or does a judge decide?
The underlying offenses still carry serious consequences:
- Unlawful sexual intercourse under PC 261.5, when the older person is more than three years older than the minor, is punishable as a misdemeanor or felony with up to a year in county jail or a state prison sentence. If the adult is 21 or older and the minor is under 16, a felony conviction carries two, three, or four years in state prison.2California Legislative Information. California Penal Code 261.5
- Sodomy with a minor under PC 286(b) is punishable by state prison or up to a year in county jail, and is automatically a felony when the adult is over 21 and the minor is under 16.3California Legislative Information. California Penal Code 286
- Oral copulation with a minor under PC 287(b) carries the same structure: state prison or up to a year in county jail, with a mandatory felony when the adult is over 21 and the minor is under 16.4California Legislative Information. California Penal Code 287
- Sexual penetration with a minor under PC 289(h) and (i) works the same way: state prison or up to a year in county jail, with a mandatory felony for adults over 21 when the minor is under 16.5California Legislative Information. California Penal Code 289
A person convicted under any of these statutes still faces prosecution, potential prison time, and a criminal record. SB-145 does not reduce any of that. It changes only whether registration is added on top automatically or at a judge’s discretion.
Who Qualifies For Judicial Discretion
Discretion under SB-145 applies only when all of these are true:
- The minor was 14, 15, 16, or 17 at the time of the offense.
- The older person was no more than 10 years older than the minor.
- The conviction falls under PC 261.5(c) or (d), 286(b), 287(b), or 289(h) or (i).
- The offense is the person’s only conviction requiring sex offender registration.
All four conditions must be present.1California Legislative Information. SB-145 Sex Offenders Registration If any one fails — the minor was 13, the age gap was 11 years, or the person has a prior registrable offense — mandatory registration still applies. The discretion window is deliberately narrow.
When Discretion Does Not Apply
Certain offenses trigger mandatory registration regardless of the circumstances, and SB-145 does not touch them. Conduct involving force or violence is the clearest example. A conviction for rape committed through force requires registration and state prison time.6LegiScan. Bill Text CA SB145 2019-2020 Regular Session Chaptered
Other mandatory registration offenses include kidnapping with intent to commit a sexual offense, assault with intent to commit a sexual offense, and murder committed during the perpetration of a sexual offense. The full list is set out in Penal Code section 290(c).7California Legislative Information. California Penal Code 290 The common thread is conduct beyond a voluntary age-gap situation. Anything involving coercion, predatory behavior, or violence sits outside SB-145’s framework.
How A Judge Decides
When the qualifying conditions are met and a judge chooses to order registration under Penal Code 290.006, the court must state its reasons on the record. The judge considers factors including the nature of the offense, the age and number of victims, and whether the person has other criminal convictions.8California Legislative Information. California Penal Code 290.006
Discretion does not mean the judge will decline registration. It means the judge evaluates whether registration fits the case rather than imposing it regardless. A well-prepared defense can shape that decision. Evidence that the contact was genuinely voluntary, that the age gap was small, and that no exploitation or power imbalance existed all carry weight. Testimony from people who observed the relationship, communication records showing mutual interest, and the defendant’s lack of prior offenses can support the argument. Psychological evaluations addressing recidivism risk can also influence the court, particularly when they speak directly to the factors listed in PC 290.006.
The registration question is separate from the underlying conviction. Even when a guilty plea or conviction is inevitable, whether the registry is added remains its own decision with its own stakes at sentencing.