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

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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.

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.

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.

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”.

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 ..?

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.

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

This makes me sick, one step forward two steps back

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.

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.”

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.

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.

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.

@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.

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?

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

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?

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!

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?

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.”

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…

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

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/

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,

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.