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ACSOLJanice's Journal

Janice’s Journal: A Reflection on Hofsheier

The California Supreme Court continues to bludgeon registered citizens with decisions that deny their civil rights. In the latest in a string of misguided decisions, the Court stripped away another fundamental right – the equal protection clause of the U.S. Constitution – by deciding that individuals convicted of oral copulation with a minor should be required to register as a sex offender for life while individuals convicted of intercourse with a minor should not be required to register at all.

The Court’s reason for this decision is difficult for even a veteran court watcher to believe much less understand. That is, intercourse with a minor could result in the birth of a child who, in turn, must be supported by its father, a father who will not be able to get a job and pay child support if he is required to register as a sex offender.

What? The Court is now formally recognizing that an individual who is required to register as a sex offender won’t be able to get a job. Tell me it isn’t so!

Of course, it is true. It is also true, as the two dissenting justices point out, that anyone who is required to register is stigmatized and may not be able to find a place to live.

The majority of the court says its decision is justified based upon three factors: deterrence, preventing recidivism and protecting the public. But how can this be true when, according to state government reports, the rate of re-offense for registered citizens is 1.8 percent while on parole and about 3 percent overall? These essential facts are conveniently absent from the Court’s decision.

Also absent from the Court’s decision is the quality of integrity. In its place are myths that continue to be repeated. The principle myth, of course, is that “sex offender registration is not punishment”.

But what can we expect from a Court that decided in 2013 that the government can unilaterally change the terms of a plea bargain entered into by a registered citizen? For a state that requires virtually every sex offender since 1947 to register for life the consequences of that decision have been devastating. For example, a person convicted more than 50 years ago when the internet did not yet exist now has his name, photo, and home address published on a public website that subjects him to vigilante violence, even death.

Tell me it isn’t so. Then tell it to the relatives of Michael Dodele who was stabbed to death in his home, to Bobby Ray Rainwater who was decapitated while walking in a trailer park and to Donald Crisp who was shot to death in the driveway of his home.

There is a small glimmer of hope in this case. That is, the defendant’s attorney has requested a rehearing, which if granted would be conducted before two newly appointed liberal justices. If they were to agree with the two dissenting justices, a new majority could reverse this unfortunate decision which if left intact will punish hundreds if not thousands of individuals.

By Janice Bellucci

Related: CA Supreme Court Decision Harms Registered Citizens

Join the discussion

  1. Bluewall

    I hope and pray for something sane to come out of this… until then you have my support and donations

  2. MM

    I wish I had eloquent words to write … Like so many others do. I don’t. I’m just sad. I’m sad that the judges don’t look past what they believe to be truth, when in fact …. They are deciding on what they “believe” to be true … Like many of us, until you are affected … it doesn’t matter. Shame on them.

    • Matt

      Judges at any level are not supposed to care about who wins. They are supposed to take the emotion out of the argument and make decisions based on what is fair, factual, and constitutional. Clearly in this case and many, many others, that hasn’t happened. My guess is that the registry will, in time, become so cumbersome and costly that it will collapse under its own weight. I think this has everything to do with the suggestions from the management board. I think the arguments based in facts like the recidivism rates, etc., are valid, but the seem to be ineffective. Any winning argument will probably be about the money and the utilization of limited resources.

  3. Joe

    Beautifully written, to the point and so true! I only wish I had read this before struggling through the 50 page decision 🙂

    Thank you!

    PS: What is the last part about a rehearing? Is that possible?

  4. Eric Knight

    I would be most interested in looking at the transcripts of the actual arguments. Something tells me the case was HORRIBLY argued. I can’t believe that the judges would completely ignore the recidism argument had it been brought out in the original arguments and properly documented with sources that are available from a multitude of credible sources.

    Even the dissenters didn’t bring out that point, instead focusing on the mechanics of the offense as opposed to the actual danger. Something about this STINKS, and unfortunately, it’s not just from the justices, but in this case from the litigants.

  5. Ron

    Janice, any chance you can contact the defendant and ask to be part of any further proceedings. This is certainly an importance issue and not many attorneys have the knowledge and experience you have with these issues. Maybe his attorney would at least accept your advise on a proper argument against this bad ruling. These type of losses can certainly hurt our chances at reform of SO laws.

    It’a a shame that it’s so hard to find good attorneys out there. I myself am suffering from hiring a poor quality attorney that often bragged about how he was a Harvard graduate, but turned out to have little knowledge about how to provide a proper defense. Once you realize you have a bad attorney, it’s very difficult to get a new one due to the expense and timing involved.

  6. Q

    I’m in full agreement with Eric Knight’s statement ” Something about this STINKS.” Whatever happened to factual evidence? Whatever happened to truth? It’s been proven beyond a shadow of doubt by the “essential fact’s” that the courts basis for this decision (deterrence, preventing recidivism and protecting the public) are indeed unsound and in no way based on factual evidence.

    With a overall re-offense rate of 3% one must conclude the logic of these justices is tantamount to being based on superstition, myth, and I strongly feel prejudice. This decision seems to have been based on “emotional logic” (baaad; very baaad!!!) and seemingly is not based upon or grounded in jurisprudence.

  7. Ron

    Does anyone know of a factual study of what the reoffence rate was before the public internet shaming started? Is there any factual basis for a politition to say recitivism rates are only low due to the public postings?

  8. Timmr

    What do think of this as a silver lining? The majority judges basically had to use the argument that the registry is punitive in order to make their point, which is, that some need to be be excluded from negatively life altering, mandatory registration.

  9. it is what it is

    based on my reading, the judges have said in this decision that the stigma of children conceived during a sex offense is valid, but the stigma of children of sex offenders who weren’t conceived as a result of the offense means nothing to them.

    What about someone convicted of oral sex who has children? They will suffer the same consequences having their parent registered as a sex offender, I don’t understand what difference it makes whether the offending act conceived them or not.

  10. it is what it is

    The funny thing about this whole Hofshier argument is that I knew about this odd discrepancy before the original case ever went to court. I was convicted of a “statutory rape” scenario (me 23, victim 16, consensual) but it involved oral sex and penetration sex. I knew from my own research that people convicted of similar types of crimes but who had penetrative vaginal sex were not being forced to register yet I was because my conviction was from oral sex. I even wrote the ACLU and my state assembly representative at the time. I still have the letter I got back from my state assembly representative that told me their legal team had looked into it and there is no discrepancy. Funny, because a couple years later, Hofshier was decided proving the response I got from my state rep was completely wrong and that there WAS a valid legal argument there.

  11. it is what it is

    Sorry for so many posts here, just want to correct my post above: my conviction was for oral sex only and did NOT involve penetration sex.

    One other angle of this whole thing that I’m interested in – does it discriminate against gay people? 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 because their sexual orientation tat ion precludes the, from having the kind of sex this court thinks deserves relief from registering?

    • Joe

      So did you try a Hofsheier motion between 2006 and now?

      Have you looked into a Certificate of Rehabilitation? Unless you were sentenced to prison that sounds like a viable alternative.

  12. it is what it is

    Joe – I have a certificate of rehab. My lawyers looked into Hofshier vs COR and decided COR was a better route to take. After seeing this court decision, I’m extremely glad that’s what we decided to do.

    • Joe

      Then you must no longer be having to register? Good for you, and good for you to be sticking around here.

      • It is what it is

        Thanks, Joe. Correct, I no longer have to register, but I did have to register for over 15 years and it’s still a cause that I believe in and I check in here from time to time. So many “exceptions” are allowed by politicians and the courts for sex offenses that would never be accepted for any other crime. I also don’t trust the politicians and the courts (many of the courts, there are some good judges out there who refuse to be intimidated and stand up for what’s right). If they are willing to retroactively rip away people’s relief via Hofshier, who is to say they won’t try to rip away the relief of those of us with CORs?

  13. Anonymous Nobody

    About some of the comments, I note, stigmatism is a psychological condition that has been considered to be punishing, psychologically punishing. These justices who are pointing out that registrants are stigmatized have previously insisted registration is not punishment! They are failing to keep their assertions consistent — as I have in the past pointed out is difficult to do when you are lying, especially when you are really stretching the lie. So do not miss it when they accidentally speak truth, and cite that to use against them.

    I note, citing the interference with the father getting a job so he can support some offspring from a rape (or illegal intercourse) — that is Islamic Law! Under Islamic law, rapists can avoid conviction if they marry the victim, whether the victim wants to marry or not, and so supports them. When did our courts start enforcing Islamic Laws?! Gee, this ruling is a violation of the separation between state and church!

    As for the three factors the court says the law is there for – where does the law say anything at all about any of them. The courts previously ruled the law was to provide for surveillance, as why else would you be registered, and I believe that surveillance language has been added to the law — but no language about deterrence is in it,and that is not so automatic as surveillance might(or might not) be — its only deterrence value would be if it were punitive, but they say it is not punitive – again, they are tripping over their own lies! Use it against them! The second they call it deterrence, they have inseverably said it is punishment!

  14. Anonymous Nobody

    I must say, about any rehearing, I hope so, but I seriously doubt it. That would basically be up to the two new justices who join the court next week. Gee, neither has even been a justice before on any court! That is not a likely scenario to expect the first thing they will do is a major assault on their predecessors on a very hot ticket item that surely would see them face a major challenge to their confirmation election.

    And besides, neither is a liberal, nor is there anything in their background to presume they don’t support this ruling.

    Nothing to lose in a rehearing, but it is even a longshot when you don’t have two new justices just seated who have never been on a court before.

  15. mike

    It’s crazy that the AG in the mosley case has put forth a better and more complete argument for sex offenders then any of these other attorneys have. We really need Janice or someone to argue these cases with the facts so as to force these court decisions to be based on the real facts and leave them no option to fall back on their lies and false information with every decision they make

  16. Jo

    Its like we are in a bad dream, that keeps spiraling down and down, deeper into darkness and inanity. When will it ever end? It honestly feels like it would be easier to just end it all were in not for someone fighting for us.

  17. G4Change

    S.C.O.T.U.S.! It’s time!

  18. td777

    Janice, is there any hope that the court’s formal recognition of registrants being less likely to find employment or even a place to live being used to establish that registration in itself is cruel and unusual punishment?

  19. steve

    Yeah I don’t get it. SCOTUS said Registration is not punishment and there is no stigma. But here the justices admit there is?

  20. michael

    Let’s hope the mosley case goes better for us all. If the residential restrictions end up applying to all rso and AB201 gets passed it will be devastating for rso and their families not to mention it will pave the way for even more unjust laws including the implemation of the lifetime gps. Thank god we have someone like Janice and her team to at least give us some hope in all this.

  21. USA

    Wow, this is nuts! I plead to a battery with a masseuse/wobbler/summary probation. Its since been reduced/expunged and 20 years have elapsed! Yet, I’m still required to register. So, I could have had sexual intercourse with a minor and not been required to register? Yet, I plead to touching someone inappropriately and still required to register?

  22. Mr. G.

    Dear Janice, I need to know if we as people (sex offenders) all stand together and we start a movement would or could we make a difference? I wish I knew someone from where I live, so I could come to more meetings and put in my two cents.

    Thank you for the letter to Captain Mondary in the Joshua Tree Sheriff office. I sure do hope he gets my message from your words!

    When I read the words you put down about the California Supreme Court Decision, about oral copulation. I almost fell down laughing! When did the court turn to being the Gods for the law?

    So now do we go the a higher court to get it over turned?

    Thanks again and please put me in touch with someone who I can share a ride with to get to some of these courts and meetings.

  23. amom

    Janice, If the two new liberal justices agree that indeed it is cruel and stigmatizing punishment to have to be on the registry in this case, would this help get better momentum for fighting against all registry, period?

  24. amom

    Janice, one more thing….So happy that you do what you do for the SO’s cause! You are our hero. How can we connect all registrants together so we can stand united strong?

  25. Someone who cares

    I was wondering about a peaceful protest myself. Put together with the families rather than the registrants, just to show how this affects all of us, and not just the actual person on the registry. This is cruel and unusual punishment for all the innocent people who are caught in this mess.

  26. David

    Janice – Could this be the rehearing that has been requested?:
    Grants and Holds

    People v. Fields (2014) 230 Cal.App.4th 184, review granted 1/14/2015 (S222445/A135605). Briefing deferred pending decision in Johnson v. Superior Court (Jan. 31, 2013, E055194) [nonpub. opn.], review granted 5/1/2013 (S209167), which includes the following issues: 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))? Should the court overrule People v. Hofsheier (2006) 37 Cal.4th 1185?

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