Tuesday, March 16, 2010
Supreme Court: Sex Offender May Petition for Removal From Registry
By KENNETH OFGANG, Staff Writer
A person seeking to be removed from the sex offender registry based on a 2006 state Supreme Court ruling may seek that relief by writ petition, but not by postjudgment motion, the state Supreme Court ruled yesterday.
In a unanimous decision, the justices affirmed a Third District Court of Appeal ruling that a trial court has no jurisdiction to grant a motion to remove the lifetime sex offender registration requirement. But the high court expressly stated that a defendant seeking such relief may do so by petition for writ of mandate if he is no longer in custody and his appeals have been exhausted.
Justice Kathryn M. Werdegar, writing for the high court, said the Court of Appeal correctly dismissed former high school teacher Andrew Picklesimer’s appeal from the denial of his motion. She agreed that 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 sentences totaling four years and four months in prison.
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 The Court of Appeal disagreed, affirming in an unpublished opinion.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 over the age of 16 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.
The defendant, the Court of Appeal 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.
Werdegar agreed in her opinion for the Supreme Court. She pointed out that Picklesimer’s situation does not fall within any of the statutory exceptions to the rule, such as those allowing post-conviction motions to reduce a “wobbler” from a felony to a misdemeanor or to vacate a judgment on the ground that a defendant was not advised of the immigration consequences of a plea.
Nor, she wrote, did the defendant receive an “unauthorized” sentence, which could be corrected by the trial court at any time. The obligation to register, she wrote, is not part of the sentence but “a separate consequence of Picklesimer’s conviction automatically imposed as a matter of law.”
But because the processing of sex offender registrations and the listing of those offenders in the state’s registry is a ministerial act, Werdegar went on to explain, a defendant such as Picklesimer who has no other remedy may seek a writ of mandate in order to compel exercise of the trial court’s discretion as to whether the defendant must register.
The justice went on, however, to reject the argument that the court should treat the motion as a “mislabeled” mandate petition and order that Picklesimer be relieved of the registration requirement and removed from the registry.
“We determined in Hofsheier...and reiterate today,” the justice wrote, “that in cases where mandatory sex offender registration has been shown to violate equal protection, the procedure that most closely matches the legislative intent is not automatic removal of a sex offender from the state sex offender registry, but an after-the-fact discretionary determination whether removal is appropriate.”
The case is People v. Picklesimer,10 S.O.S. 1328.
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