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Equal Protection -- Sex Offender Registration

Do the equal protection principles of People v. Hofsheier (2006) 37 Cal.4th 1185 bar mandatory sex offender registration for a defendant convicted of oral copulation between a "person over the age of 21 years" and a "person who is under 16 years of age" (Pen. Code, 288a, subd. (b)(2))?

On December 18, 2013, the Supreme Court ordered supplemental briefing on the following issue: Should the court overrule People v. Hofsheier (2006) 37 Cal.4th 1185? The parties may wish to address the following questions: (1) What level of equal protection scrutiny applies to the statutory difference in sex offender registration requirements between those convicted of violating Penal Code section 288a and those convicted of violating Penal Code section 261.5? (2) Has Hofsheier presented practical difficulties of application in the trial and appellate courts? (3) Has Hofsheier been extended beyond the sex offender registration context in ways that could not have been anticipated at the time of the decision? (4) Absent the limitations on Hofsheier's application asserted in People v. Manchel (2008) 163 Cal.App.4th 1108, the validity of which is challenged in the present case, what principles, if any, constrain the application of Hofsheier? (5) Does Hofsheier's equal protection analysis logically extend beyond the context of sex offender registration? (6) If Hofsheier's holding is overruled, would and should the court's decision apply retroactively to offenders who have been convicted or released from custody since the decision in Hofsheier without registration orders or who have obtained relief by writ petition from preexisting registration requirements?

Held: People v. Hofsheier (2006) 37 Cal.4th 1185, is overruled because there is a rational basis to mandate different sex offender registration requirements for unlawful sexual intercourse offenders and unlawful oral copulation offenders. Johnson pled guilty to one count of unlawful oral copulation in violation of Penal Code section 288a, subdivision (b)(2), which mandated sex offender registration. Relying on Hofsheier, which found the mandatory registration required for a section 288a, subdivision (b)(1) offense violated equal protection, Johnson sought relief from the registration requirement. The petition was denied in superior court but granted by the Court of Appeal. Review was granted. Held: Reversed. In Hofsheier, the court found those offenders convicted of nonforcible oral copulation with a minor 16 or 17 years old, which mandates registration, were similarly situated to offenders convicted of unlawful sexual intercourse with a minor (Pen. Code, 261.5), for which registration is discretionary. Hofsheier concluded there was no rational basis for this disparity and that mandatory registration for a section 288a, subdivision (b)(1) offense violated equal protection. Thereafter, the Courts of Appeal extended Hofsheier's holding to additional nonforcible sex offenses covered by section 290, thus denying significant effect to that section. Section 290's registration requirement seeks to promote the state's interests in controlling crime, preventing recidivism, and allowing police to track sex offenders. The problems of teen pregnancy and its associated costs, in addition to the possible stigma of registration, that might interfere with employment and the support of children, provides a plausible basis for treating unlawful sexual intercourse offenders differently from other types of sex offenders. Since Hofsheier was decided, the Legislature has not added unlawful sexual intercourse to the list of mandatory registration offenses. In light of the legitimate purposes of sex offender registration, the different treatment between section 261.5 and 288a offenders does not "so lack rationality that it constitutes" a denial of equal protection.

The overruling of Hofsheier is retroactive unless restricted on grounds of equity and public policy. "A decision of a court overruling a prior decision is typically given full retroactive effect." However, an appellate court may restrict retroactive application based on grounds of equity and public policy. There is no reason to "deny retroactive application where, as here, a sex offender has taken no action in justifiable reliance on the overruled decision." (Johnson v. Department of Justice (2015) 60 Cal.4th 871 (S209167). This case was decided on 1/29/2015.

Updated: 1/29/2015

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