Friday, October 17, 2008
High Court Agrees to Hear Sex Offender Registration Case
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday agreed to decide whether its 2006 ruling that allows judges to free defendants convicted of oral copulation of minors from the sex offender registration requirement is retroactive.
The justices, at their weekly conference in San Francisco, voted unanimously to review the Third District Court of Appeal’s July 2 ruling in People v. Picklesimer, 164 Cal.App.4th 723. The lower panel held that People v. Hofsheier (2006) 37 Cal.4th 1185 does not apply to defendants who exhausted their appeals before that case was decided.
The high court normally holds its conference on Wednesday, but this week’s was moved to avoid conflict with a state judicial conference.
Hofsheier held that a provision mandating sex offender registration for all defendants convicted of oral copulation of a minor is 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.
The Third District, however, dismissed 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, saying the trial judge was correct in ruling that he lacked jurisdiction because Picklesimer’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. 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 The Court of Appeal disagreed, affirming in an unpublished opinion.
But several years later, when the Supreme Court handed down Hofsheier and declared that judges have discretion as to whether to require registration for those convicted of oral copulation, 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.
The court said that Picklesimer 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.
In other conference action, the justices:
•Declined to review a ruling by this district’s Div. Six that controversial self-proclaimed disability rights activist Jarek Molski exposed himself to an adverse fee award by pursuing litigation to enjoin technical violations of California’s disability access statutes under Civil Code Sec. 55.
The court held on July 7 in 164 Cal.App.4th 786, that an award of more than $33,000 was a reasonable and necessary consequence of Molski’s “scorched earth strategy,” invoking the Unruh Civil Rights Act, Disabled Persons Act, and Sec. 55 over an alleged access barrier at the Arciero Winery in San Luis Obispo County.,
•Agreed to resolve a dispute concerning how repurchased service credits in the California Public Employees’ Retirement System are treated when the employee has divorced, remarried, and divorced again during the period of public employment.
The case involves former Monterey County Sheriff Gordon Sonne, who was a deputy sheriff for 27 years and sheriff for four years before retiring in 2002. After he and his second wife divorced, she elected to cash out her share of the community interest in his CalPERS benefits, and he later elected to repurchase those credits, using funds that were the community property of him and his third wife.
A Monterey Superior Court judge hearing divorce proceedings between the former sheriff and third wife Theressa Sonne ruled that the repurchased service credits were community property, and that when Gordon Sonne dies, Theressa Sonne will be entitled to his entire survivor benefit.
The Sixth District Court of Appeal held on July 16 that the ruling on the repurchased credits was not an abuse of discretion, but that the ruling on the survivor benefit was erroneous because it failed to account for Gordon Sonne’s separate and community interest in the benefit.
The case is In re Marriage of Sonne, 164 Cal.App.4th 1331.
•Declined to review a July 31 ruling of the Fourth District’s Div. One that the Legislature did not unconstitutionally amend the initiative governing medical marijuana use when it enacted a law requiring identification cards. The case is County of San Diego v. San Diego NORML, 165 Cal.App.4th 798.
Copyright 2008, Metropolitan News Company