From 2006: Hofsheier Decision (Equal Protection)
From 2012: Case that said 311.11a cases weren’t subject to the Hofsheier Motion because there is no violation of the Equal Protection doctrine
Hofsheier, 311.11 and Equal Protection
- ·July 17, 2013
- ·14 Comments
The California Penal Code seems to be rather random and arbitrary when it comes to 290’s.
Apparently, you can rape /have intercourse/whatever with a minor under certain conditions and not have to register, but, if you chat with, send certain images or attempt to meet ala “To Catch a Predator” then it’s lifetime registration. So the penal code says it’s “okay” to have sex with a minor under certain conditions and get a misdemeanor, but God forbid you chat online with one. I’m so confused!!!
Here’s one for you…I was nailed on a bogus case because when coming across someone who was an investigator posing as a minor and trying to get me to expose myself on my webcam, I told them I believed them to be a cop and they should go first! Apparently, even if I stated my belief they were a cop and not a minor didn’t matter and they arrested and convicted me for trying to get a (fictional!) minor to expose herself!
mch, your problem with confusion is because you are trying to be sensible, logical, reasonable, even at least ever so slightly intelligent. None of those qualities have anything to do with the registration laws.
Here is the complete decision on file at the Court:
http://www.courts.ca.gov/opinions/archive/E054886.PDF
After reading the complete decision, there could be a Hofsheier Motion potentially for 311.11 cases if you can prove the actors in the images are 14 or over.
The case is discussed is pretty damn similar to mine. I sat for two years in therapy listening to others that had sex with minors, one of which when the minor in question was engaged in the relationship for almost two years since 15, and they don’t have to register. But 1 file that was on my computer, and I’m labeled a monster for life? Almost three years with zero prospects for work, and nearly had a job until they blatantly told me in the interview that they won’t hire someone “like” me because its a risk. Yep, no violation… Read more »
Not clear why this item from last year got posted now. Nonetheless, this ruling is not surprising. It goes right along with the original decision. The point here is that statutory rape and possession of child pornography are not so similar, they involve significantly different elements. As such, they are not comparable for purposes of equal protection. As the courts have ruled previously, the courts defer to the Legislature’s perogative to have someone convicted of possession of child pornography register while not applying the registration requirement to statutory rape. That is, the court has ruled that the test of equal… Read more »
This appellate blog commentator summed it up cleanly:
http://calapp.blogspot.com/2012/11/people-v-gonzalez-cal-ct-app-nov-19-2012.html
Actually, I’m surprised to see someone from CalApp write that. He knows that is not what the court said.
I will note though, I do think there should be some way to attack harsher treatment for a lesser offense. But the court says comparing equal treatment applies only to offenses with equal elements. Perhaps equal treatment is not the argument, but proportionality is. But as I recall, the courts have turned down the proportionality argument too, although I don’t at the moment recall their thinking on it.
He actually phrased it as a question–perhaps a rhetorical question.
I was thinking the Absurd Results doctrine should apply to treating 311.11a cases harsher than a contact offense.
If it were ruled out on equal treatment basis, the Legislature could solve the issue by making people convicted of statutory rape register as well. Aargh! That is, the ruling could be taken to mean they must add an offense to the SOR list, not subtract one!
The legislation is so screwed up. The problem is that politicians filter through so many bill proposals from special interest groups, searching for the “feel good” bills that will further their own political career. I see it this way: we have a battle on at least three fronts, 1) legislative; 2) judicial; and 3) public opinion. Its hard to fight on the judicial front when the laws are so screwed up in the first place. Its difficult to fight on the legislative front because political decisions are based on public opinion. How can we win with public opinion when it… Read more »
RIGHT ON, MH!!!!
I would of used equal protection to campaign with out being thrown in prison for it.
Also if a town limits where you can live it also limits how many can vote at the polls to change the laws.