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Name: In re J.P.
Case #: A118858
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 02/05/2009

A juvenile adjudicated for Penal Code section 288a, subdivision (b)(1) (non-forcible oral copulation of a person under 18) is not subject to registration pursuant to Penal Code sections 290 and 290.008, as it would result in a violation of equal protection. When appellant was 12, a petition alleging a violation of section 288a, subdivision (b)(1) was sustained, and he was declared a ward of the court, with wardship ultimately terminating in 2006. In 2007, appellant, then an adult, was charged with failure to register as a sex offender. He filed a motion in juvenile court to set aside the registration requirement. The motion was denied. Relying on People v. Hofsheier (2006) 37 Cal.4th 1185, the appellate court reversed, finding that a defendant convicted of section 288a, subdivision (b)(1) is similarly situated to one convicted of section 261.5 who under section 290.008, subdivision (a) is not required to register as a sex offender. Therefore, registration of the person adjudicated for 288a, subdivision (b)(1) would violate equal protection where the only difference between the two offenses is the nature of the sexual act involved. The court concentrated on the juvenile adjudication and rejected the People’s position that would call for the court to look beyond the statutory elements of the offense admitted and, instead, consider the underlying facts of the offense in determining whether the defendant was subject to registration.