Metropolitan News-Enterprise


Thursday, July 3, 2008


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High Court Ruling on Sex Offenders Not Retroactive—C.A.




A state Supreme Court ruling that allows judges to free defendants convicted of oral copulation of minors from the sex offender registration requirement is not retroactive, the Third District Court of Appeal ruled yesterday.

Dismissing Andrew Picklesimer’s appeal from the denial of his motion to remove the requirement and remove the former high school teacher from the state sex offender registry, the court said the trial judge was correct in ruling that he lacked jurisdiction because the defendant’s conviction became final long before the motion was filed.

Picklesimer has been subject to sex offender registration since 1993, when he entered into a plea bargain in Trinity Superior Court. Originally charged with offenses against two minors, he pled guilty to unlawful sexual intercourse, oral copulation, and digital penetration, all involving a 17-year-old girl.

As part of the plea, he acknowledged that the digital penetration and oral copulation convictions required him to register as a sex offender.

Charges involving a younger girl, who was said to be reluctant to testify, were dismissed.  Judge William Lund imposed consecutive upper term sentences.

Picklesimer raised only one issue on appeal, arguing that the separate sentences violated Penal Code Sec. 654, which prohibits multiple punishments for the same crime. The Court of Appeal disagreed, affirming in an unpublished opinion.

Years later, the state Supreme Court decided People v. Hofsheier (2006) 37 Cal.4th 1185, holding that mandating sex offender registration for all defendants convicted of oral copulation of a minor was unconstitutional as a matter of equal protection because the crime is similar to unlawful sexual intercourse, as to which the trial court has discretion as to whether to require registration.

To remedy the violation, the high court declared that judges have discretion as to whether to require registration for those convicted of oral copulation.

Following the decision, Picklesimer moved to lift the requirement that he register. In support, he filed a psychological report purporting to show that he had no sexual compulsion and was unlikely to reoffend. The district attorney argued in opposition that the court had no jurisdiction, that the plea bargain precluded relief from the registration requirement, and that relief, even if available, was unwarranted in light of the defendant’s conduct.

Judge James Woodward agreed with respect to jurisdiction and denied the motion without a ruling on the merits.

On appeal, the defendant and the attorney general agreed that the matter should be remanded to the trial court so that the judge could exercise his discretion as to whether to grant the motion. But the Court of Appeal said they were both wrong, the trial judge was correct, and the order was non-appealable. 

Justice Fred Morrison, writing for the court, explained that Hofsheier did not address the effect of the holding on cases in which appellate rights were exhausted.

The defendant, Morrison said, had shown no basis for an exception to the general rule that a court may not alter the consequences of a criminal conviction that has become final.

Exceptions to that rule exist, he acknowledged, where created by statute or where the prior disposition was “unauthorized.” But there is no statute that allows a court to remove the sex offender registration requirement post-conviction, he noted, and he rejected the argument that Hofsheier rendered the disposition of Picklesimer’s case “unauthorized.” 

“It was not unauthorized when it became final, and Hofsheier still allows registration for persons who commit the crimes of which defendant stands convicted,” Morrison wrote. “The judgment is not unauthorized within the meaning of the rule that an unauthorized sentence may be corrected at any time.”

 The case is People v. Picklesimer, C056385.


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