May Sex Offenders Petition for Removal From Registry in California ?

In People v. Hofsheier (2006) 37 Cal.4th 1185, the defendant, age 22, was convicted of engaging in oral copulation with a minor age 16 in violation of Penal Code section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1192.) The Hofsheier court noted that its analysis was concerned with the validity of mandatory registration for the section 288a, subdivision (b)(1) category of voluntary oral copulation with a minor age 16 or 17. (Hofsheier, supra, 37 Cal.4th at p. 1195.) The court held it was a violation of equal protection to impose the mandatory sex offender registration requirement for commission of voluntary oral copulation with a minor age 16 or 17 ( 288a, subd. (b)(1)), given that no such requirement was imposed for commission of voluntary sexual intercourse with a minor age 16 or 17 ( 261.5, subd. (c)). (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1206-1207.) The Hofsheier court reasoned that defendants convicted of the two offenses were similarly situated for purposes of evaluating the registration requirement because "both offenses concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act." (Id. at p. 1200.) After finding the defendant had satisfied the similarly situated requirement for his equal protection claim, the Hofsheier court considered whether there was a rational reason for mandating registration when a defendant engaged in oral copulation, but not when a defendant engaged in sexual intercourse. Relevant to this inquiry, the court noted that the purpose of the registration requirement is to protect the public from repeat offenders. (Hofsheier, supra, 37 Cal.4th at pp. 1196, 1204, fn. 6.) Finding no rational basis for the classification, the court rejected the Attorney's General argument that absent a contrary showing by the defendant, the court should assume that adults who engaged in voluntary oral copulation with minors age 16 or 17 are more likely to repeat their offense than adults who had voluntary sexual intercourse with minors of the same ages. (Id. at p. 1203.) The court reasoned that the absence of empirical evidence from the defendant regarding recidivism should not dictate the result. (Ibid.) Further, the court concluded the claim of increased recidivism by defendants who engaged in voluntary oral copulation with minors age 16 or 17 was speculative and did not provide rational grounds for the classification when considered in light of the fact that only discretionary registration was imposed on defendants who engaged in voluntary sexual intercourse with victims in the same age group. The court explained: "Requiring all persons convicted of voluntary oral copulation with minors 16 to 17 years of age to register for life as sex offenders, while leaving registration to the discretion of the trial court for those convicted of sexual intercourse with minors of the same ages, cannot be justified by the speculative possibility that members of the former group are more likely to reoffend than those in the latter group. To sustain the distinction, there must be some plausible reason, based on reasonably conceivable facts, why judicial discretion is a sufficient safeguard to protect against repeat offenders who engage in sexual intercourse but not with offenders who engage in oral copulation. . . . No reason has been suggested why judicial discretion is insufficient, and none comes to mind." (Id. at pp. 1203-1204.) The Hofsheier court also rejected the Attorney General's argument that sexual intercourse was distinguishable from oral copulation because the former can result in pregnancy, and imposing a lifetime registration requirement on the father of the child could operate to the social or financial detriment of the mother and child. (Hofsheier, supra, 37 Cal.4th at pp. 1204-1205.) The court reasoned that persons who engage in sexual intercourse often also engage in oral copulation, and "if the possibility of pregnancy is a reason for avoiding mandatory registration of persons convicted of sexual intercourse, the same reason for avoiding mandatory registration applies to persons convicted of voluntary oral copulation, because those persons may have also engaged in intercourse (whether they were convicted of it or not) and a pregnancy may have resulted." (Id. at p. 1205.) The Hofsheier court further rejected the possibility that the Legislature had chosen to impose the mandatory registration requirement for oral copulation but not sexual intercourse based on a "one-step-at-a-time" approach designed to address acute problems first. (Id. at pp. 1205-1206.) The court observed that the legislative history of the sex offender statutes revealed that the Legislature was "not engaged in a process of fine-tuning its sex offender registration statutes" but rather the registration statutes "stand as a comprehensive, enduring statutory scheme--not a temporary pilot program--and the classifications it includes cannot be sustained unless they rest on a rational basis." (Id. at p. 1206.) Additionally, the court noted that when the section 290 sex offender registration statute was enacted in 1947, all voluntary oral copulation was criminal. (Ibid.) The court discerned that "mandatory lifetime registration of all persons convicted of voluntary oral copulation in violation of Section 288a (b)(1) stands out as an exception to the legislative scheme, a historical atavism dating back to a law repealed over 30 years ago that treated all oral copulation as criminal regardless of age or consent." (Ibid.) The Hofsheier court concluded: "We perceive of no reason why the Legislature would conclude that all persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of ' "particularly incorrigible offenders" ' who require lifetime surveillance as sex offenders." (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207.) The court remanded the case to the trial court to determine whether the defendant should be required to register under section 290's discretionary registration provision. (Id. at p. 1208-1209.) In In re Derrick B. (2006) 39 Cal.4th 535, the Court held that the discretionary power conferred by section (a)(2)(E) applies only to adult offenders, not to juveniles, unless they are remanded for trial as adults. (Derrick B., supra, 39 Cal.4th at pp. 545-546.) The juvenile defendant in Derrick B., like C.R. here, had been sexually victimized himself, had failed in several group home placements, and had admitted to having sexually assaulted a number of victims. (Derrick B., at pp. 537-538.) Nonetheless, he challenged the validity of an order requiring him to register as a sex offender under section 290 because his offense, sexual battery ( 243.4), was not among the offenses listed in subdivision (d)(3) of the statute. (Derrick B., at pp. 537-538.) The Court agreed that the registration requirement did not apply to him, noting that the Legislature had carefully distinguished between offenses requiring sex offender registration by adults, listed in section 290, subdivision (a)(2)(A), and those requiring registration by juveniles (allegations found true), listed in subdivision (d)(3). In the absence of a clear expression of legislative intent, it could not be said that the Legislature meant to abandon this differentiation when it enacted subdivision (a)(2)(E). (Derrick B., at p. 546.)