The Purpose California Penal Code Section 290

"'"'The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. '"' In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. (See Stats. 1996, ch. 908, 1, subd. (b), p. 5105.)" (People v. Hofsheier (2006) 37 Cal.4th 1185 at p. 1196.) However, only the sex offenses specified in section 290, subdivision (c) require mandatory registration. All other sex offenses are subject to registration at the sentencing court's discretion "if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." ( 290.006.) Thus, it appears that the purpose of the mandatory registration statute is to enable the police and the public to keep track of sex offenders that the Legislature considers unable to control their sexual impulses and are more likely to present a danger to the public. In Hofsheier, supra, 37 Cal.4th 1185, the California Supreme Court found the mandatory lifetime sex offender registration requirement of section 290 unconstitutional as it applied to a defendant who had been convicted of oral copulation of a minor. (Id. at pp. 1192, 1194-1196; 288a, subd. (b)(1).) The defendant in Hofsheier was a 22-year-old man who had engaged in "voluntary" oral copulation with a 16-year-old girl. (Id. at pp. 1192-1193.) The high court used "the term 'voluntary' in a special and restricted sense to indicate that the minor victim willingly participated in the act and to the absence of various statutory aggravating circumstances: the perpetrator's use of 'force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person' ( 288a, subd. (c)(2)); the perpetrator's 'threatening to retaliate in the future against the victim or any other person' ( 288a, subd. (c)(3)); and the commission of the act while the victim is unconscious ( 288a, subd. (f)) or intoxicated ( 288a, subd. (i))." (Hofsheier, supra, at p. 1193, fn. 2.) The 22-year-old defendant contended that he was similarly situated to a defendant charged with voluntary unlawful sexual intercourse with a 16- or 17-year-old minor ( 261.5, subd. (c)), an offense that did not require mandatory registration. The Supreme Court compared the two statutes in question, noting that "both section 288a and section 261.5 follow a pattern of imposing greater punishment on offenses involving younger victims . . . ." (Hofsheier, supra, 37 Cal.4th at p. 1195.) The court also stated, "We are not here concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse. (See 264 rape, 288 lewd or lascivious acts with victim under the age of 14, 288a, subd. (c)(1) oral copulation with a minor under 14 years of age, 288a, subd. (c)(2) forcible oral copulation, 290, subd. (a)(2) convictions requiring registration.)" (Hofsheier, at p. 1198.) The Supreme Court in Hofsheier observed that "section 288a(b)(1) and section 261.5 both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors 'are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.' " (Id. at p. 1200.) The Supreme Court in Hofsheier concluded there was no rational basis for the disparate treatment (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207), and thus the defendant in that case established a violation of equal protection. (Id. at pp. 1201, 1207.)