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California

CA Supreme Court Decision Harms Registered Citizens

The California Supreme Court today, in a vote of 5 to 2, overturned a prior court decision (People v. Hofsheier (2006) 37 Cal.4th 1185) that provided relief in the recent past to many individuals convicted of oral copulation. In the decision, the court found that there is a “rational basis” for providing harsher penalties to such as an individual as compared to other individuals who convicted of unlawful intercourse.

“Today’s decision by the California Supreme Court has the potential to harm hundreds if not thousands of individuals without increasing public safety,” stated California RSOL President Janice Bellucci. “It is yet another blow to the state and federal constitutions.”

The Court’s decision relied, in part, upon “legitimate purposes of sex offender registration” as well as legislative concerns. According to the Court, the legitimate purposes of registration are deterrence, preventing recidivism and protecting the public. The legislative concerns cited included stigmatization of a person that “might interfere with employment opportunities and the support of children conceived as a result of unlawful intercourse.”

According to the Court, today’s decision is retroactive and will apply to an unknown number of individuals whose requirement to register as a sex offender was previously terminated.

In a sharply worded dissent. Justice Werdegar noted that the government “acknowledge(s) that some form of notice will be necessary before a person, who after Hofsheier, was not required to register or who successfully petitioned for relief from mandatory registration could be convicted of the willful failure to register.” She added that the majority opinion of the Court “reinstitutes a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration.” Justice Liu concurred with this dissent.

Opinion

Related Media:

California Supreme Court sex-crime ruling criticized as unfair to gays – LA Times
Another rehearing alert: 5-2 Supreme Court overrules sex offender registration precedent
CA High Court Reverses Itself on Sex Offender Registration – Courthouse News Service

Related:

Janice’s Journal – A Reflection on Hofsheier – CA RSOL

Join the discussion

  1. Hofsheier

    The 2006 Hofsheier equal protection decision was reversed today by the California Supreme Court. Incredibly, they said it applies retroactively. The full decision is here:

    http://www.courts.ca.gov/opinions/documents/S209167.PDF

    This may be a disappointing harbinger of the Mosley and Taylor Residency restrictions decision expected in one month.

    • Joe

      Clearly I have not had a chance to read the entire decision, but right off the bat it seems that this deals with 288a(b)(2) – non-forcible OC with 14/15 year old, where Hofsheier dealt exclusively with 288a(b)(1) – non-forcible OC with 16/17 year old.

      Would you mind summarizing your opinion of this opinion? Thanks.

  2. Hofsheier

    Mr. Hofsheier and other 288a(b)(1)’s will now be subjected to re-registration in conjunction with Doe v Harris, 2013. Any relief provided by using a Hofsheier petition will be subject to retro applicability and the possible requirement to re register. Those not required to register for a Statutory Rape conviction, 261.5 (b), (c) or (d) will continue to not be required to registered.

    • NPS

      That explains why the court in my case refused to rule on this writ back in October even after granting me a reduction to misdemeanor and expungment. I only hope this doesn’t subject us to Megan’s Law website.

    • Joe

      Are you V. Hofsheier? If yes, what say you?

    • Anonymous Nobody

      Actually, Harris is not related here – Harris was about negative subsequent changes in the law affecting a plea bargain. That is very different than this. But Harris might be one good place to start a fight about this latest case being applied retroactively.

      Actually, this is not the first time people relieved of registration have had it reimposed on them later. That is what happened in the 1990s. You see, previously if you got probation and at the end of that got the 1203.4 relief, you could stop registering — that was the standard to meet to stop registering, probation was the test, probation was in effect where you had your due process to show you were not the danger that 1203.4 supposedly is protecting the public from.

      But then, they changed the statute that provided for that, no longer allowing those who got 1203.4 relief to stop registering, first affecting felons who got 1203.4 relief and later also affecting misdemeanants.

      With that, all those going back to 1947 who had been able to stop registering after getting 1203.4 relief suddenly had to start registering again — even though they had made ASSERTIVE steps to EARN the relief, unlike Hofsheier, where no assertive step or earning of relief was ever required. That is, what was done in the 1990s was even worse!

      All those people then had to meet the higher standard to once again seek relief – and fear that once they did that, the law might be changed again to again make them register. Imagine if they they got the relief by getting a COR, and then the law was changed to make the standard for everyone a full pardon and so they had to start registering yet again even though they had yet again met the standard for relief!

      In fact, this is the one angle not yet tested in a challenge to Harris: that people who entered a plea agreement knowing they would be able to stop registering after probation, so they pled out, THEY MADE THE PRESCRIBED ASSERTIVE STEPS and met the conditions imposed in probation to obtain the 1203.4 relief and, having EARNED it, obtained it, so were relieved of registration — they have that, they earned it, they took assertive steps to get it, and it is their’s to keep! I would say they even have a property right to it! They in effect paid for it! You can’t simply change the statute and so say their payment is null and void – they aren’t getting that payment back. The “contract” is not fluid forever more when there is a direct action to earn something and that something is awarded. Change the law later? Fine – but only affecting going forward when their has been a direct performance in trade for something.

      The Harris case has not yet been tested against a challenge that making the assertive steps to meet the standard and earning the relief bars the relief from being taken away later, bars that from being retroactive. Harris did not address assertive steps taken and earning the relief and it being given. That is quite different from taking it away when no assertive steps have been taken, when nothing has been earned – as in Hofsheier.

      Maybe now with two new justices being seated, and two who voted in the majority on this Hofsheier case leaving, it is time to make this new challenge against Harris.

      If you can’t win against Harris on behalf of people who took assertive steps and actually earned relief, there is nothing you can do to fight retroactivity in this latest case.

  3. Joe

    So how will they find these people – the ones who got off with a Hofsheier motion and the ones who were never ordered to register at sentencing? And if they do not run down to the police station by the end of business today, will they be arrested for Failure to Register?

    It is getting quite tiresome to hear the courts – the CA Supreme Court, no less – repeat ad nauseum that this registration is legitimate because it protects the public. Only because they say so. No other reason. And from what? From people like this guy?

    http://www.courthousenews.com/2013/12/23/63979.htm

    Who now at least is relieved of any uncertainty.

    • Anonymous Nobody

      By law, first the people affected will have to have knowledge, and that will mean the state or other will have to notify them of their new obligation to register. If they are not notified, and otherwise are not aware of it, they are not in violation, although at any time they can be notified and required to start at that time. To be be convicted of failure to register, the prosecution would have to show that they actually knew of their obligation, however it is they might have found out.

  4. wonderin

    According to the Court, the legitimate purposes of registration are deterrence, preventing recidivism and protecting the public.

    Am I missing something here? I thought the threat of being incarcerated AGAIN for an even longer time and losing your liberty and lively hood were sufficient deterrents. Furthermore, I thought the registry was only a tool to help law enforcement more easily apprehend re-offenders who’s compulsions were so strong they couldn’t control themselves?

    Logically, if the registry is a stand alone tool which performs as the court claims than we should never need prisons, mental hospitals and etc. to control registered citizens, except in the most severe of cases.

    First time offenders need never go to prison or attend therapeutic counseling.
    All that is needed is the “Registry”.

    • Joe

      SAYING something is legitimate does NOT make it so!

      If that were the case I would be rich, smart and handsome…

  5. Clark

    IF…IF there was a “legit purpose”….why not protect the public from far higher repeated crimes that registers their crime .???…….IF “legit” ..then why is this court allowing the higher rates of crime to the public go Unregistered ..?

    • Clark

      A legit purpose of public policy would be nonDiscriminating…it would therefore encompass all crimes of all people….that’s why this ca court decision is coward and extremely flawed.

  6. Stephen

    Everything I just read sounds like the Government talking, and not judges. Are CA judges elected, or Appointed. I’m sure they will start searching Motor Vehicle Records for Addresses. It’s my feeling that if you can’t get rid of the registry, then lets put everyone on one and then see how long it lasts. just base a suit on the same Government reasons. Remember the Bottom line is safety from those who pose a High risk.

    • sérviam

      California judges are elected at the local level; appellate and supreme court justices are appointed by the governor to fill vacancies. They can run for election once the term is up. Since voters (only 30% turned out last November, btw) rarely pay attention to judicial elections, the appointed justices are usually re-elected until they retire. Four out of the five justices who voted with the majority opinion were appointed by Deukmejian, Wilson, and Swarzenegger. Werdegar, who wrote the dissenting opinion was also appointed by Wilson. I expected her to vote in favor or reversal, I was surprised to see her write the dissent on this. Goodwin Liu, who concurred with Werdegar’s dissent, was appointed by Jerry Brown.

      • Anonymous Nobody

        Unfortunately, who appointed them is not very applicable to figure who will vote which way, as despite popular opinion, the Democrats have widely and wildly supported all these laws, including lots of Democrat-appointed jurists. And there are no liberals on the court.

        I note, all levels of state judges in California get appointed, even the trial court-Superior Court level. And all face election, at the next election following their appointment, and then for reelection at the end of their existing term. I’m not positive, but I think there can be an flat out open election, that is,with no incumbent, depending on the timing in which any particular judge might leave the court– possibly that can happen only at the Superior Court level. But outside that timing, even judges to the Superior Court are appointed.

        Brown has not been appointing liberals, ala Rose Bird. He has been appointing moderates, including Liu, who voted in favor of the Harris decision. Liu has been inappropriately called a liberal where he is actually a moderate, although maybe leaning to the left, but a moderate nonetheless.

        There is not a single liberal justice on the state or federal high courts, despite the media constantly referring to them as liberals simply because they are not so far right as the right wing loonies who now are all over the courts.

  7. Clark

    Remember …high risk was already used within parole..control…within parole assigned control risk…are we clear…Are We Clear..!!

    • Deirdra Duncan-Gonzalez

      Looking for certified copies of prop 83, facts that all offenses have to have a prior court order. Of a order to comply.

  8. Dr

    This makes me sick, one step forward two steps back

    • Tired of hiding

      I agree with you on that! All of this is total BS. Oh and while we are at it so is the “Supreme Court”. I have no respect for them. They are only people like you and I who have 75 years or so on this earth and then they are gone…doesn’t sound like they are supreme at all and certainly there is nothing supreme about their “god complexes” and their need to FEEL supreme.

      F them while we are at it. Lee

    • mike t

      “My dear, here we must run as fast as we can, just to stay in place. And if you wish to go anywhere you must run twice as fast as that.”
      ― Lewis Carroll, Alice in Wonderland

  9. Timmr

    Someone needs to make these judges read the CASOMB background reports on the tiering proposal and then give them a test on it. They would fail it because their disgust for the crimes comes before truth.

  10. Timmr

    It would seem to follow that, since pregnancy brings up issues of child support, then former offenders whose former victims are in the home and supported by the former offenders are “similarly situated” to gain relief from registration. This would mean that many people with 288(a) convictions, arguably less severe an act than intercourse, receive less relief than those who go “all the way.”

    • Anonymous Nobody

      So, in other words, we are now enforcing Islamic Law, whereby one can avoid convictions for such things as rape simply by marrying the victim and supporting them, whether she wants to marry or not? That is, all you have to do to get out from under registration is support your victim until they reach age 18?!

      Look at this opinion and you will see that is the logic presented.

  11. Eric Knight

    Very, very troubling implications. I didn’t read the decision, at first glance I get the feeling that this was horribly litigated on our part. Any time a judge proclaims that the public has a right to know” means that the recidivism rate was not properly argued, which should be Job 1 of any litigant arguing a sex offender issue case. The re-registration aspect is the most draconian aspect.

    • Timmr

      No, nowhere in the decision or the dissent do I see anything about reoffense rates. It’s as if they were talking about a hypothetical world in which truth need not enter.

    • Timmr

      I feel for all those who thought they were off the registry for good, and finally had a track to a better life, only to find they were put back in Hell. The resentment this creates will not go away.

      • C

        It must be like being told one’s cancer has come back. Maybe not quite as bad as that, but pretty bad. My thoughts and prayers to these poor folks and their families who have just been f’d over again by their government.

  12. Matt

    Although this is bad for the cause in the short term, it might actually help in the long term. If one of the primary arguments against the registry is that it has become too cumbersome to manage, adding all of these people to the registry retroactively will add to the problem. I acknowledge that it’s hard to see a silver lining here, but I encourage everybody to think long term. This is a marathon; not a sprint. The caseload that will be increased on law enforcement could be used to our advantage. The CSC made a decision based on emotions, not facts. That much is obvious. But at some point, all this “monitoring” needs to be paid for and implemented. Law enforcement may not appreciate this recent decision either.

    • Anonymous Nobody

      Your comment to think longterm is worthy. However, the longterm approach as already been taken – we are at the end of it, as far as I can see. Not everyone on the registry is a young newcomer. They are all ages, plenty in their 50s, 60s, even 70s and more. They don’t have any further longterm to wait for relief — they have already waited longterm, already hoped for longterm – and all they’ve gotten for that is worse, and worse and worse.

      The approach via the courts has been tested for decades now and is a complete failure or even worse. Another approach is mandatory. I can only suggest we must group and march in big numbers, we must make this a major local and statewide and even national debate, show we are real people, good people, suffering dearly and pointlessly, just like the gays did when they were subject to prosecution and, in California, registration.

      If we instead take the long view and just deal with the courts, we might as well give up. Most all of us will be dead before any such relief comes from the courts, if it ever comes from there. And the politicians dare not touch use, we are the third rail – until we make ourselves otherwise by marching.

      The reason we are getting this treatment is because we are waiting for someone else to do something to stop it. We are the ones who must do it, not someone else – -we must first do all possible to make it so others can do it,in the courts of the legislative realm. Nothing can happen in those places until we first march and make it possible.

      If we won’t do it, why should they?!

      • Matt

        I agree with all your points, and as I said, it’s hard to see this in a positive manner. My point was that registrants may actually get some help from law enforcement on this decision. If law has to re-register and monitor hundreds or thousands of new people, they may wind up helping the cause in terms of legislation. If they have to spend their time and resources on monitoring an influx of people, they may resist and help sponsor legislation for the tiered registry. I’m looking at this in a way that is similar to when the governor shifted thousands of state prison inmates to the county jails. The Sheriff’s departments all over the state were upset about that action. Something similar may happen here.

      • Anonymous Nobody

        How timely for this story today in the LA Times: The Ninth Circuit is loudly raising hell about widespread prosecutorial misconduct all over California, and the courts failing to do anything about it even though they are supposed to at least refer the prosecutors to the State Bar for discipline – they are not. In fact, the Ninth Circuit is complaining that despite finding the misconduct, the courts far too often are upholding the convictions anyway! In fact, the Ninth Circuit seems to suggests the courts actually have been complicite in supporting it.

        And the Ninth zeroed in on AG Harris, demanding she take note and do something: NOW. And she did, case was dropped, she doesn’t want negative noise when she wants to run for Senate. But gee, the Ninth getting it dropped instead of putting out a LOUD, devastating opinion, as it threatened to do, naming names, only leaves them too becoming complicit!

        http://www.latimes.com/local/politics/la-me-lying-prosecutors-20150201-story.html#navtype=outfit

        As I said, we cannot rely on the courts to save us. They are not going to do so. This is definitely not the court system most of us grew up with. This is the court system from hell — it shows no interest in justice. We must get out on the streets and march, we must raise this issue loudly, we must demand what America is supposed to stand for, our simple basic rights — we are not on parole or probation so this is an outrage to basic rights.

        We are not going to get that from the courts or the lawmakers. We have already tried that route for decades, and it is as complete a failure as can be. We are left to only ourselves to get out and do it. Asking someone else to do it has failed miserably.

  13. MM

    My anxiety level just raised tremendously. Waiting for the opinion on the Residency Restrictions (by March 2) is of the utmost concern for us. I pray this does not indicate how they view …… ugh.

    • Timmr

      Ugh…I heard this explosion and my ptsd returns like a passing shiver down my spine. Better not to imagine anything that hasn’t happened yet, and be ready to deal with when and if it happens.

      • MM

        I’m still trying to understand why the residency restriction 3003.5(b) isn’t clear to everyone that it applies to those on parole. Not to someone who has a charge from 1987.

        While searching the internet for a shred of hope anywhere … why do I believe that the case In re: E.J. would make the residency restrictions not apply?

        I also found on the CDCR site:

        “TEXT OF PROPOSED REGULATIONS” – Title 15, Division 3, Chapter 1. Article 1. Behavior.

        Section 3000 is amended to add the definitions below and merge them alphabetically with existing definitions in this section.

        Under Article 5. Sex Offender, 3571. Residence Restrictions
        (d) A person released on parole on or before November 7, 2006, who is required to register pursuant to PC sections 290 through 290.-23, inclusive, shall not be subject to a residence restriction in addition to subsection (b) above, or required by section 3582, unless that residence restriction is supported by circumstances found in the parolee’s criminal history.”

        While I am typing … I am guessing all of the above is really a moot point since it doesn’t matter what the CDCR states – it’s what is the “law” … am I correct in assuming that???

        • Nicholas Maietta

          ….A person released on parole on or before November 7, 2006, who is required to register pursuant to PC sections 290 through 290.-23…

          My conviction was in 2000.
          Violation of probation on technicalities sent me to prison in 2005.
          Paroled August 2007.
          Released from parole Aug 2012.

          I was sentenced to 3 years in prison. 3 years parole.
          Because I was convicted in 2000, the 3000 and 3000.1 clauses didn’t apply to me.

          Reality: I was forced to do 5 years parole after my time in prison by CDCR, forced to wear GPS tracking for 4 1/2 of those years.
          Reality: They retroactively forced me to abide by residency restrictions, even though my criminal office had nothing to do with proximity of any place where children congregate.

          Clearly, they were in violation of law.

          Finally out of the clutches and threats of CDCR, I am now living in a big city and in my own home. I operate a business from home and doing quite well for myself. At this time, residency restrictions do not apply to me. I have even Google’d to nearest schools and mileage checked. I don’t appear to be required to move even if is upheld for those NOT on parole.

          However:

          The residency restrictions issue has me concerned. Because parole was attempting to enforce the law under their definition of “where any children congregate” and by “congregate” they “mean 2 or more” at any time. I have never seen any case law or any modifications that support what i currently know which is “any tax payer funded place where children congregate” such as schools. parks, etc. This does not include state parks, beaches, etc.

          I am worried like may others that if this residency restriction gets upheld, i will be forced to move because they will also try and apply it retroactively.

          Just two years after being off parole and homeless, i am now in my own home, operating a successful business from home. Just in case, i have two motorhomes on standby, one geographically separated from the other. The minivan is loaded up with a full arsenal of camping gear and fully fueled up. I have taken every step and precaution to operate “on-the-go”. In the event this happens, i am fully ready to place my hat into the ring of lawsuits and i WILL be looking for suitable financial compensation for my troubles.

        • Janice Bellucci

          Yes, you are correct. CDCR is an executive branch agency of the state and as such is charged with implementing the law. They are not charged to create law (legislative branch) or to interpret law (judicial branch).

        • CA

          Janice, my question is, if the California supreme court upholds the residency restrictions law, people vs. Mosley, does that mean EVERY SINGLE REGISTERED SEX OFFENDER IN CALIFORNIA will be subject to the residency restrictions? Even those never on parole? I never did prison time. my conviction predicated 11/8/2006, I WAS NEVER ON PAROLE! I ALSO REMEMBER HEARING THAT YOU CAN STAY IN THE RESIDENCE IF YOU WERE THERE BEFORE THE LAW PASSED, IS THAT TRUE? THIS QUESTION IS IN TWO PARTS. thank you

  14. David

    @Stephen, I would cynically have to agree with you: Eventually, the Registry will collapse under its own weight as the result of overburdened enforcement agencies, a lot of wasted taxpayer dollars, and when everyone in the general population is related to or knows a Registered Citizen.

  15. Joe

    Here is a random thought…. hear me out.

    1. It is a crime for ANYONE (the ‘other’ party need not be an adult) to engage in penetrative sexual conduct with a person under 18 years of age. PC 261.5 (before 1970 part of PC 261), PC 288a, PC 286, PC 289. THAT is a FACT.

    2. Engaging in criminal conduct is still a crime even if one does not get caught and charged / prosecuted / convicted. For a judge, at least, it would be unethical to sit and rule on a case involving such activities. That is my sincerest hope.

    3. I would seem that an officer of the court – the highest court of the State, no less – who has ever participated in the very criminal activity (either as a perpetrator or victim) that is before him or her has an inherent conflict of interest and needs to recuse him / herself from the case. That would be my assumption.

    Is it reasonable to assume that ALL 7 judges who heard this case never ONCE engaged in the conduct so here ruled on? Again – either as a perpetrator or victim, or both. Is it reasonable to assume that all 7 judges – they were young once – sat home on Friday nights, every Friday night? That all 7 judges never conjugated anything beyond irregular verbs for French or Latin class?

    Would it be reasonable to request that all 7 judges certify – under oath and threat of perjury – that they never participated in this sort of conduct that was before them, or otherwise recuse themselves from the case?

    Outrageous? Is it?

    • Harry

      A long time police chief, whom I went to high school with, was the biggest partier, even after his graduation. I can remember one party, when he was 18+, were he had his hands under the bra of a <16 year old female. It became so steamy I departed that company, quickly.

      • The Unforgiven

        To take that a step further, at least in CA, most if not all past and present people who engaged in sexual activities under the age of 18 are sex offenders. Even though said people agreed upon the act, since they are minors, they can’t legally give consent I believe. We should technically arrest & jail far more people than we do. Let’s start with all the high schools and go from there. Since the majority’s attitude is be gone with ALL offenders..let’s do it.

        • Catch 22

          Busting the HS kids might be a positive thing making the whole thing collapse due to the tremendous increase of RSOs . There would be so many of us we could not be ignored . Making RSOs is a “Hate Crime” perpetrated by the Government .We are the only unprotected group left .

  16. David

    This doesn’t hurt the tiered law registry bill does it

  17. Timmr

    If there is a legitimate purpose, I would put preventing the guy who is impregnating minors as a higher priority than preventing the other guy who is using more caution, showing a little more concern for life altering consequences. Do or did any of these judges have children themselves?

  18. JM

    So…it sounds like the moral of this story is…if you have sex with a 16/17 year old, make sure you “go all the way” as we used to say. Because if you go all the way, there’s a chance that it would produce a child and the state does not want to be burdened with supporting said child. Their actions are irrational, idiotic and incompetent!

  19. it is what it is

    this ruling seems to discriminate against gay people and could be in conflict with other CA laws based on this discrimination.

    If you are 20 and have a 17 year old girlfriend and have sex with her, this court thinks you should not have to register because a child could be created from it.

    What if a 20 year old lesbian or gay guy has another form of sex (oral) with his or her 17 year old girlfriend or boyfriend? They can’t really have it the “traditional” way, so that means they have to register as a sex offender for life simply because their sexual orientation precludes them from having the kind of sex this court thinks deserves relief from registering?

  20. Jo

    While Thursday’s decision applies retroactively to Johnson’s case – meaning he will continue to register as a sex offender – the majority said “we need not and do not decide whether our decision overruling Hofsheier should be given retroactive application in all cases.”

    • Justice For ALL

      Huh?? Wouldn’t that open up a huge can of worms then? People that had a ruling based on this can sneak by, but HE has to go back to registering?? Wow, I can see the storm brewing already.

  21. Sue

    My relative is a lesbian. Her offense was oral copulation with a minor who was 16 years old. They met “online” and each lied to the other about their age – the girl stating she was 19 (complete with a photo that the judge even said was too hot to handle). In discovery for the trial, the defense investigation spoke with the “victim” (whose parents pushed for the prosecution) and she told the investigator that she had told my relative she was 19 and that when it was discovered she was just 16, she was told to go home because what they were doing was not right.

    In preparation for a Hofsheier writ my relative underwent a psychological examination for an opinion as to whether she would “reoffend”, which resulted in the opinion there was no way anything like what occurred would happen again.

    Long story short, the Court was set to hear the writ on January 15, 2015, but it was dismissed without prejudice and the judge suggested the writ be filed in Civil rather than Criminal court, which the attorney had originally filed in.

    Now with Hofsheier being overruled by the Supremes, there appears nothing more my lesbian relative can do. Had she been capable of intercourse with the girl, her registration would be discretionary. But she doesn’t have the “hardware” (no pun intended) for that, now does she?

    It wasn’t having to register every year that created the problem. It was her inability to get sustainable employment because most of the conventionally respected corporations will not hire people with this type of record, even with an explanation.

    It is a shame that because of one mistake – even though being deceived by the girl’s lie – her life has been changed forever. No prior criminal record of any kind, except traffic tickets.

    This law does discriminate against gays and lesbians. There isn’t any other way to view it. Just too sad…

    • Joe

      What a sordid tale… from what you describe a Certificate of Rehabilitation would be a viable alternative for your relative. This has a lengthy waiting period but a decade or two is better than life. Look in the FAQ on this site as well as under Resources.

      It never ceases to amaze that there is a whole branch of the criminal justice system (juvenile justice) to hold minors accountable for their actions and mis-deeds – often as adults as young as 11, but when it comes to their own sexuality not only are they incapable of making any decision like saying yes or no, but they are absolved of any active deception that may have aided in or instigated the offense. That is truly unique to this country, to the Victorian / Puritan heritage and something that is hard to fathom.

      In retrospect it sounds like your relative was lucky she did not get charged with and convicted of receipt and possession of Child Pornography, ha ha…. the minor for producing it? Not in a million years. The poor child! How could she form any decision?

      It should be noted that criminal sexual activity (like that with a willing 16/17 year old child(!)) that does not involve good old fashioned reproductive sexual intercourse (like Oral Copuation, Sex Penetration or Sodomy) to this day is listed in the “Crimes against Nature” section of the Penal Code.

      This law not only discriminates against same sex oriented people, it is an assault on common sense snd reason.

      Only in America!

      … end of rant. Tell your relative to find out about a COR and be sure to do everything necessary to file for that when the time is right. All the best to her.

      • Johnson v DOJ

        Joe- After this Supreme court decision, a COR is no longer available to provide relief at any point in time for these offenses [288a(b)(1)], voluntary oral cop with a 16 or 17 year old. A COR granted for ‘sexual intercourse’ with a 16/17 yo DOES relieve an offender the duty to registry, if in the very rare case it was ever imposed.

        I’ve not yet come across a single California Megan’s listing of a 261.5(c) or 261.5(d), ‘sexual intercourse’ with a 16 to 17 yo minor as an offense, but many “oral cop” listed ‘equivalent’ offenses are listed.

        • NPS

          A Certificate of Rehabilitation DOES apply to 288a(b)(1) provided that it is a misdemeanor offense.

        • Joe

          I am fairly certain that this is not true. There is nothing in Johnson vs DOJ that has any bearing on ending registration after getting a COR for a conviction of voluntary oral sex with a 16/17 year old.

          A 288a(b)(1) or 289(h) or 286(b) is not prohibited from setting the conviction aside pursuant to PC 1203.4. Unless the above convictions are felonies a COR will end the termination requirement, as they are not an offense listed for exclusion in PC 290.5. And unless the sentence included a prison stay or a suspended prison sentence a felony can be reduced to a misdemeanor under PC 17(b).

          None of this is changed, even addressed in this decision. Is it easy? No. Can it be done? Yes.

          And you will never see a 261.5 on the Megan’s Law web site, nor a 288a(b)(1), 289(h) or 286(b). PC 290.46(b) and (c) list the offenses that are published on the web site – in the full address or the zip code category. Those are not among them.

          Unless a defendant has been convicted of an offense that warrants publication in addition to the ones mentioned above, those offenses will not be listed.

  22. Johnson v DOJ

    NPS, Yes, correct. Thanks for the clarification. But it has to be originally charged as a misdemeanor, not reduced by a 17(b) motion.

    • Joe

      No, a reduction under 17(b) will do, even if the original conviction was a felony UNLESS the sentence included a prison sentence (actual or suspended). The reduction motion is just a checkbox on the 1203.4 form.

      @Sue, be sure to get your relative to check this out.

      • Johnson v DOJ

        Joe, Sue & NPS, All this may be correct and of course checking with a qualified attorney on post conviction relief is required. All of this is less then two weeks old and we will certainly need and get clarification down the road.

        I do call to attention of those interested, the appellate case of D.M. v DOJ, 2012, A131325, the first citable case where having a 288a(b)(1) COR entitled a person to relief.

        “Plaintiff appealed from an order denying his petition for writ of mandate seeking to be relieved of the duty to register as a sex offender under Penal Code section 290. The registration requirement was imposed in 1987 because of his conviction for violating section 288a, subdivision (b)(1), oral copulation with a person 16 or 17 years of age. Plaintiff obtained a certificate of rehabilitation pursuant to section 4852.13, subdivision (a). Then, plaintiff filed a petition for a writ of mandate in the trial court, which was denied and the court ordered him to register as a sex offender pursuant to section 290.006. The Court of Appeals found that section 290.5, subdivision (a)(2)(N), which denied the automatic registration relief conveyed by a certificate of rehabilitation to persons convicted of unlawful oral copulation with a minor under section 288a, subdivision (b)(1), although such relief was available to those convicted of unlawful sexual intercourse with a minor under section 261.5, resulted in the denial of equal protection under the principles enunciated in People v. Hofsheier (2006) 37 Cal.4th 1185. Because of the constitutional invalidity of section 290.5, subdivision (a)(2)(N), plaintiff necessarily was entitled to relief from the duty to register as the consequence of having obtained a certificate of rehabilitation. Hence the court need not consider whether the trial court abused its discretion in disregarding plaintiff’s evidence that he poses no threat of reoffending, nor need the court consider plaintiff’s numerous additional arguments as to why his petition was erroneously denied. Accordingly, the order denying the petition for writ of mandate was reversed.

        Section 290.5, subdivision (a)(2)(N) resulted in a denial of equal protection under Hofsheier, thus, it was constitutionally invalid and plaintiff was entitled to relief”

        • Joe

          Thanks for the link to that decision… interesting. Here is how I understand this.

          – Defendant was convicted of Felony 288a(b)(1)
          – Defendant was sentenced to 4 years in prison (at this point the felony sticks forever and ever)
          – Defendant obtained COR (nothing that says he cannot)
          – Defendant was not relieved of registration requirement because Felony 288a(b)(1) is excluded from relief, per PC 290.5
          – Defendant sued per Hofsheier asserting that it is a violation of Equal Protection for 290.5 to exclude Felony 288a(b)(1) but not Felony 261.5 from obtaining relief from registration with a COR.
          – Court agreed with defendant under Equal Protection
          – with the reversal of Hofsheier this is invalidated and defendant is back to where a COR does not relieve registration for a FELONY 288a(b)(1).

          Am I reading this correctly?

          It seems the big difference between this case and Sue’s relative’s case is that DM is stuck with a felony. Because he was convicted of a felony to begin with and sentenced to prison there is no way to reduce it under 17(b). He argued successfully that this provision in PC 290.5 violates Equal Protection. Which it totally does (my opinion). The missing ingredient here is the level of Sue’s relative’s conviction and whether or not she was sentenced to prison. For some reason I was under the impression that Sue’s relative did not end up in prison, but true, she did not say.

          Bottom line – for anyone registering due to a conviction of 288a(b)(1) at the misdemeanor level (either from the beginning or with a subsequent reduction) who has or wants to obtain a COR this latest Hofsheier decision has zero impact.

      • Johnson v DOJ

        Joe: Good summary. That is my understanding as well. Charged as a misdemeanor, loss of Hofsheier, zero impact on COR based relief. It is somewhat unclear (or unsettled law now) if a reduced 17(b) can qualify. My attorney thought it did not, but I should have him thoroughly review the issue now in light of Johnson. Even if a court or Judge agrees, it will rest with Cal DOJ for final determination.

        The one small silver lining, is a Felony 288a(b)(1) COR will now be easier to get since it does not involve the scrutiny of relief. And if you do have a COR, when (hopefully) California enacts a tiered registry, it will be within the first tier and there wouldn’t be any grounds for relief denial or hesitation. Again, small consolation.

        Btw, this afternoon Marilee Marshall, appellate attorney for this Johnson Supreme court case filed a petition for decision review. (Not likely to be granted, but maybe.)

        • Joe

          If your attorney thinks a 288a(b)(1) felony reduced to a misdemeanor under 17(b) does not qualify for registration relief with a COR you really need to talk to a different attorney.

          Please keep us posted about any review progress.

  23. David

    Good L.A. Times article. I hope Johnson appeals for a rehearing by the new Cal Supreme Court (Baxter gone; two new Justices).
    http://touch.latimes.com/#section/-1/article/p2p-82676173/

  24. Joe Crushed

    PC 288a(B)(1)

    I am badly confused as to if I can obtain a Certificate of Rehabilitation in the wake of the Hofshier reversal or if my only hope is a tiered registry.

    I have never had much hope for a tiered registry, so I have always aimed for a CoR in 2018.

    My “victim” was 17 and I was a young adult in 2007 and we engaged in some terribly inappropriate behavior. So, here I am…

    Now incidentally, I found this law firm on Orange County which appears to claim that they can use another case to obtain leverage. Here’s the link to their site:

    http://www.wksexcrimes.com/sex-offender-registration.shtml

    They claim a “Writ of Mandate” can be used in some cases. It is unclear if it would be of any use to me.

    http://www.wksexcrimes.com/practice-areas/sex-offender-registration/writ-of-mandate/

    Any information or insight?

    Thanks.

    • Joe

      This recent Hofsheier reversal has no impact on a COR. A 288a(b)(1) is not categorically excluded from applying for a COR. A COR WILL terminate the registration requirement for a 288a(b)(1) IF the offense is a misdemeanor at the time the Certificate is granted. Meaning it was either charged originally as a misdemeanor or reduced to one under PC 17(b) after a felony conviction which did NOT result in a prison sentence. That is what is called a ‘wobbler’.

      If you were convicted of a felony AND sentenced to prison you can still get a COR but it will not stop your 290 registration. And then what is the point.

      The first step is to dismiss / set the conviction aside under PC 1203.4, and at the same time reducing it (if necessary and / or possible) under 17(b). This can be done as soon as probation is complete and there is no reason to wait for the 10-year COR waiting period. I would do that asap as they are not going to make it easier in the future.

      Here is the form. The public defender in your county can / will / should help you. It is pretty straight forward, there is a filing fee but it is not that big a deal. Be sure to address a felony reduction if necessary.

      http://www.courts.ca.gov/documents/cr180.pdf

      Then apply for a COR after 10 years, assuming that you have no other offenses (the archaic language specifically mentions a ‘sober’ lifestyle – so a DUI would not be helpful) and hoping that they do not change the law in the meantime. If you do not get it the first time, try try again. Good luck.

      Pickelsimer clarified the proper vehicle with which to apply for Hofsheier relief. But that ship sailed last week with the reversal. Unless they rehear and reverse it again. But if you were sentenced and required to register in 2007 (after Hofsheier made registration for this offense no longer mandatory in 2006), the registration was imposed by the court’s discretion anyway and possibly not a Hofsheier case anyway.

      Finally I would like to note that I find nothing inappropriate – or at least criminal – about a 17 year old engaging in willing sexual conduct with a person of their choosing. But then again I am not living in some fantasy land.

  25. Joe Crushed

    Joe,

    I spoke by phone with an attorney today and he told me precisely what you laid out yourself.

    The only thing that matters is that my charge has been reduced to a misdemeanor, which is was, and is a misdemeanor at the time I apply for my CoR. If does not matter if the charge was originally a felony, only that it is a misdemeanor at the time I apply for the CoR.

    This much is good news. Although a tiered registry would still be best for California and public safety.

  26. sadandmad

    so because there is the POTENTIAL for pregnancy, they dont have to register? so why dont they just say, if the sex resulted in pregnancy, you dont have to register, but every one else does… not like that would violate peoples rights or anything…

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