The Duty to Register as a Sex Offender in Light of People v. Hofsheier
Posted by: Marc Levinson
November 12, 2009
Topic: Cancellation of Sex Offender Registration
The California Supreme Court held that California Penal Code Section, 290 is unconstitutional as applied to certain categories of offenders. See People v. Hofsheier, 37 Cal.4th 1185 (2006). The defendant in Hofsheier was a 22-year-old man who pleaded guilty to felony oral copulation with a 16-year-old minor. He was granted probation, and the court ordered his registration as a sex offender. The defendant appealed his duty to register, and the Court of Appeal agreed that the obligation must be eliminated.
The California Supreme Court granted the Attorney General's petition for review. It held that the mandatory lifetime registration requirement violated the defendant's equal protection right inasmuch as one convicted of unlawful sexual intercourse with a 16-year-old was not subject to the mandatory requirement. The proper remedy, therefore, was invalidating the requirement for persons in defendant's class of offenders, and remanding the case for resentencing so that a judge could decide whether the defendant was subject to discretionary registration as a sex offender.
In order to prevail on a claim under the equal protection clause, an attorney must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. Groups are similarly situated when there is no rational basis for treating them differently for purposes of the law challenged.
The issue in Hofsheier was explained in the recent case, People v. Garcia, 161 Cal.App.4th 475, 482 (2nd Dist., March 27, 2008):
The crucial issue before the court was whether there is any rational basis for making a distinction between oral copulation and sexual intercourse when determining who must register [pursuant to § 290]. The Supreme Court concluded there is not. It noted that "[i]f there is no plausible reason, based on reasonably conceivable facts, why judicial discretion is sufficient to protect against repeat offenders who engage in sexual intercourse but not against repeat offenders who engage in oral copulation, then to deny the latter group the recourse of judicial discretion is to deny them the equal protection of the laws." Id., 161 Cal.App.4th 475, 482 (2nd Dist., March 27, 2008); citing Hofsheier at 1204.
Despite the Hofsheier court's attempt to limit its holding, "the principles on which the decision rests have broader application." Garcia at 482.
Whether a particular offender's case is affected by the Hofsheier decision is a complicated analysis of the statutes of conviction and recent updates to case law. Legal counsel familiar with California's sex offender registration statutes should be consulted as soon as possible.
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The Duty to Register as a Sex Offender in Light of People v. Hofsheier
