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Name: Lewis v. Superior Court
Case #: H032621
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/15/2008

A person convicted of oral copulation with a minor under the age of 18 (Pen. Code, sec. 288a, subd. (b)(1)) is not subject to mandatory registration as a sex offender under Penal Code section 290, and is subject to discretionary registration under Penal Code section 290.006 only if the record supports a basis for the court’s order in the exercise of its discretion. Lewis was convicted of two counts of section 288a, subdivision (b)(1) in 1987 and ordered to register as a sex offender pursuant to section 290. His 2007 motion in superior court to relieve him of the requirement was denied with the court finding the crime was committed for sexual gratification with the then 22-year-old Lewis taking advantage of the 17 year-old victim. The appellate court, first established that the appropriate vehicle in this case was a petition for writ of mandate. It hen held that under People v. Hofsheier (2006) 37 Cal.4th 1185, there is no mandatory registration for this crime. Further, assuming that discretionary registration applied to the 1986 incident, the record here did not support an order requiring appellant to register. There was no transcript of the victim’s testimony in the record, and the record reflected that the trial court had granted a Penal Code section 1118.1 motion as to the forcible oral copulation counts.