Metropolitan News-Enterprise


Friday, January 30, 2015


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State High Court Reverses Itself on Sex Offender Registration

Panel Says Hofsheier, Which Made Registration Discretionary in Some Cases, Was Wrongly Decided




California laws giving judges discretion to decide whether a defendant convicted of unlawful sexual intercourse with a minor must register as a sex offender, but mandating that those committed of other non-forcible sexual offenses against minors register, are not unconstitutional, the state Supreme Court ruled yesterday.

In a 5-2 decision, the justices concluded that People v. Hofsheier (2006) 37 Cal.4th 1185, was wrongly decided. The court held in that case that mandating sex offender registration for defendants convicted of oral copulation of a minor was unconstitutional because there was no rational basis for treating that offense differently than unlawful sexual intercourse.

Baxter Opinion

Retired Justice Marvin Baxter, writing for the high court while sitting on assignment yesterday, explained:

“Upon reexamination, we find Hofsheier’s constitutional analysis faulty...Although Hofsheier accepted the reasonableness of the Legislature’s determination that, generally, mandatory registration promotes the policy goals of preventing recidivism and facilitating surveillance of sex offenders who prey on underage victims, the decision failed to adequately appreciate that, among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood.  Given that unique potential, legislative concerns regarding teen pregnancy and the support of children conceived as a result of unlawful sexual intercourse provide more than just a plausible basis for allowing judicial discretion in assessing whether perpetrators of that crime should be required to register, while mandating registration for perpetrators of other nonforcible sex crimes.”

Overruling its precedents is not something the court does lightly, Baxter wrote, but the “broad impact” that Hofsheier is having on equal protecion analysis in the context of sex offender registration requirements, and the difficulty of resolving the problems through legislation, justifies doing so in this case.

The ruling came in rejecting a claim by a San Bernardino County offender, James Richard Johnson, who invoked Hoffsheier to argue that he should no longer be required to register based on a 1990 conviction for nonforcible oral copulation by a person over 21 years of age with a minor under 16 years of age, a felony.

Held Retroactive

Baxter said there was no reason not to apply the court’s holding to Johnson, since his convictions occurred prior to Hoffsheier, so there was no reliance on the prior law that would make retroactive application unfair.

Baxter was joined by Chief Justice Tani Cantil-Sakauye, Justices Ming Chin and Carol Corrigan, and Sixth District Court of Appeal Justice Franklin Elia, sitting on assignment.

Justice Kathryn M. Werdegar was joined in dissent by Justice Goodwin H. Liu.

Werdegar argued:

“…Hofsheier’s holding rests on a sound equal protection analysis.  Our registration law establishes a statutory discrimination between oral copulation and sexual intercourse….This discrimination does not rest on a rational ground of legislative distinction but is an anachronistic holdover from a period (before 1975, when California laws on consensual adult sex acts were liberalized) when oral copulation and sodomy were regarded as abhorrent sexual perversions closely associated with homosexuality and were therefore outlawed regardless of the participants’ ages.”

The case is Johnson v. Department of Justice (People), 15 S.O.S. 553.


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