A person convicted of specified sex offenses must register with law enforcement officials and update the registration within five working days of the person’s birthday; “willful” failure to comply is a felony. (Pen. Code, § 290.) In People v. Barker (2004) 34 Cal.4th 345 [18 Cal.Rptr.3d 260, 96 P.3d 507] (Barker), this court held that forgetting to update the registration constitutes willfully failing to register within the meaning of section 290. I dissented. I explained: “Forgetting cannot be willed; it is an unplanned malfunction of the conscious mind. For this reason, a person who intends to do something, but forgets to do it, has not willfully failed to do that thing.” (Barker, supra, 34 Cal.4th at p. 366 (dis. opn. of Kennard, J.).)
Left open in Barker was the question whether “forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence might negate the willfulness required for a section 290 violation.” (Barker, supra, 34 Cal.4th at p. 358, fn. omitted.) The majority’s response today is that “the willfulness element of the offense may be negated by evidence that an involuntary condition—physical or mental, temporary or permanent—deprived a defendant of actual knowledge of his or her duty to register.” (Maj. opn., ante, at p. 69.) The majority notes that “[o]nly the most disabling of conditions” would qualify under this standard; as examples, it cites “[sjevere Alzheimer’s disease” and “general amnesia induced by severe trauma.” {Ibid.)
Applying that definition to the facts of this case, the majority concludes that defendant’s proffered evidence, which would have shown that he forgot to update his registration because he was suffering from depression, would not have demonstrated that he lacked actual knowledge of his duty to register, but would have shown only that he forgot to register. Thus, it holds, the trial court properly excluded this evidence. (Maj. opn., ante, at p. 73.)
As I understand the majority opinion, it draws a distinction between two groups of defendants suffering from a mental disease or disorder: (1) defendants who have “forgotten” the duty to register and cannot currently bring it to mind, but who still retain a subconscious knowledge such that, when reminded, they remember that they had a duty to register; and (2) defendants who, because of an involuntary physical or mental condition, *75no longer have a subconscious memory of the duty to register and, when reminded of that duty, would not remember it but must learn it anew. It is a dauntingly difficult distinction to apply, and one that depends upon concepts of retained subconscious memory that may or may not be scientifically valid. But, as the majority explains, this line must nevertheless be drawn “to avoid any due process problems.” (Maj. opn., ante, at p. 72.)
I adhere to the view that the majority was wrong in Barker, supra, 34 Cal.4th 345, for equating forgetfulness with willfulness. Had my view prevailed, there would have been no need to draw the difficult distinction I just discussed, because neither of the two groups of defendants mentioned would come within the ambit of Penal Code section 290. But the majority’s holding in Barker is now the law, and the distinction that the majority in this case has drawn may be the best way in which to reconcile Barker's holding with the due process concerns noted by the majority.