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Name: People v. Picklesimer
Case #: S165680
Court: CA Supreme Court
District CalSup
Opinion Date: 03/15/2010

A noncustodial sex offender who is no longer subject to mandatory sex offender registration should seek Hofsheier relief via a petition for writ of mandate. In 1993 defendant pled guilty to committing intercourse with minor (Pen. Code, sec. 261.5), oral copulation with minor (sec. 288a, subd. (b)(1)), and sexual penetration of minor (sec. 289, subd. (h)) and was sentenced to prison. In October of 2006, after the California Supreme Court, in People v. Hofsheier (2006) 37 Cal.4th 1185, invalidated mandatory sex-offender registration for defendants convicted of a section 288a, subdivision (b)(1) offense, appellant filed a motion in the trial court asking to be removed from the state’s sex-offender registry and relieved of his registration obligation. The trial court found it lacked jurisdiction to hear the motion, as appellant’s case was final. The Court of Appeal affirmed the trial court’s decision. The Supreme Court agreed the trial court had no jurisdiction to entertain appellant’s motion, but found appellant nonetheless had recourse to seek relief. If appellant had still been in actual or constructive custody a petition for writ of habeas corpus is the preferred method by which to challenge circumstances or actions found unconstitutional after a conviction becomes final. In this case, appellant was out of custody and off parole, making a habeas petition unavailable to him. However, the Court found that Code of Civil Procedure, section 1085, which provides for writs of mandate, is available to compel a public agency to perform acts in accordance with the law. Further, placement in, or removal of, a person from the state’s sex-offender registry is a ministerial act contingent only on a person having been convicted of a section 290 offense requiring mandatory registration, or a trial court’s discretionary order for registration under section 290.006. Thus, a noncustodial party seeking Hofsheier relief, can seek a writ of mandate directing the Department of Justice to remove that person from the state sex offender registry. The Court rejected the appellant’s ex post facto and Apprendi arguments regarding retroactive application of section 290.006 (former section 290, subd. (a)(2)(E)) to his case. Thus, in cases where mandatory sex-offender registration has been shown to violate equal protection, relief from the registration requirement is not required as a matter of law. Such cases require an after-the-fact discretionary determination whether registration is appropriate.