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Name: People v. Garcia
Case #: B196863
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 03/27/2008

Remand was required for the court to properly exercise its discretion regarding appellant’s lifetime registration requirement for oral copulation with a 14-year old. Garcia appealed from an order denying his motion to be relieved of the requirement that he register as a sex offender under Penal Code section 290 pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185. Garcia had pled guilty in 1985 to oral copulation with a person under 16 (Pen. Code, sec. 288, subd. (b)(2)) and unlawful sex with a female under 18 (Pen. Code, sec. 261.5). He was placed on probation subject to mandatory registration pursuant to section 290, subdivision (a)(1)(A). Garcia moved in the trial court for resentencing or a hearing pursuant to Hofsheier, which held that the mandatory sex offender registration requirement of 290, subdivision (a)(1)(A), violated the equal protection clause because it required registration for oral copulation but not for sexual intercourse with a girl the same age. The trial court denied his motion, holding that it would have found Garcia subject under the discretionary provisions of section 290 because of the circumstances of the crime. The trial court refused to consider character letters and the fact that he had led a blameless life since 1985. The appellate court held that Hofsheier applied here, even though the conviction was under (b)(2) instead of (b)(1) as in the Hofsheier case. Information regarding the defendant’s behavior since the time of his original sentencing is relevant to the determination of the likelihood he would reoffend and the necessity for registration. Since the trial court did not consider this information in exercising its discretion, reversal was required. He was not entitled to a jury trial on the registration requirements under Cunningham. The trial court may impose a discretionary registration requirement even though that provision was not in existence at the time Garcia was originally sentenced.