Important Note: On January 29, 2015, the Hofsheier case was explicitly overruled by the California Supreme Court in Johnson v. Department of Justice, 60 Cal.4th 871. In Johnson, the court held that the mandatory registration requirement does not violate equal protection. The court specified that the effect of their ruling would be applied retroactively. Under current California law, you can no longer petition the court to terminate your registration requirement under Hofsheier. You may still be eligible for a Certificate of Rehabilitation or to remove your information from the Megan’s Law website, please contact the RecordGone division of Higbee & Associates to determine if you are eligible for such relief.
In People v. Hofsheier, the California Supreme Court ruled that mandatory lifetime sex offender registration pursuant to Penal Code 290 for a violation of 288a(b)(1) was unconstitutional. In Hofsheier, the defendant at the time was 22 years old and he was convicted of a violation of Penal Code Section 288a(b)(1), oral copulation with a minor, who was 16 years old. The Hofsheier court noted that if the Defendant had been convicted of Penal Code Section 261.5, unlawful sexual intercourse with a minor, he would not have been subjected to mandatory lifetime sex offender registration. Using the rational basis test, the California Supreme Court determined that there was no rational basis for treating convicted offenders of 288a(b)(1) differently that those convicted of 261.5.
However, although the court eliminated the mandatory registration requirement for a violation of 288a(b)(1), the court remanded the case to the trial court level to determine whether the defendant would fall within the discretionary registration category of Penal Code Section 290(a)(2)(E) (now codified in Penal Code Section 290.006), and if so, set forth the reasons for the discretionary registration requirement.
Several cases following the Hofsheier ruling have now applied the Hofsheier analysis and ruled that Hofsheier also applied for the following Penal Code offenses:
Penal Code Section 286(b)(1): Sodomy with A Person Under 18 Years of Age
People v. Thompson (2009) 177 Cal.App.4th 1424, Court of Appeal, First District, Division 1
Defendant was convicted by a jury for unlawful sexual intercourse (PC 261.5(a)) and sodomy with 17–year–old minor (PC 286(b)(1)). As a result of his conviction for sodomy, the Defendant was required to mandatory lifetime sex offender registration pursuant to Penal Code Section 290. Defendant appealed the trial court’s order to lifetime registration. The Court of Appeals held that same analysis applied in Hofsheier would apply to sodomy. The Court found no rational distinction between sodomy and unlawful sexual intercourse.
Penal Code Section 286(b)(2): Sodomy with A Person Under 16 Years of Age
People v. Boyette 2010 WL 5396380 (Cal.App. 5 Dist.), Court of Appeal, Fifth District
In this unpublished opinion, the prosecution conceded that the reasoning of Hofsheier applied and that Boyette should be relieved from mandatory lifetime registration. The trial court agreed by citing People v. Thompson (2009) 177 Cal.App.4th 1424.
Penal Code Section 288a(b)(1): Oral Copulation with Minor Under 18 Years of Age
People v. Hofsheier
See explanation above.
Penal Code Section 288a(b)(2): Oral Copulation with Minor Under 16 Years of Age
People v. Garcia (2008) 161 Cal.App.4th 475, Court of Appeal, Second District, Division 1
The Court of Appeal held that Hofsheier applied to a violation of 288a(b)(2) nonforcible oral copulation by a person over the age of 21 with a person under 16 years of age.
People v. Luansing (2009) 176 Cal.App.4th 676; Court of Appeal, Second District, Division 2
The Court of Appeals held that mandatory lifetime sex offender registration for a defendant convicted of oral copulation with a person under the age of 16 violated equal protection.
Penal Code Section 289(h): Sexual Penetration with Foreign Object Victim Under 18
People v. Ranscht (2009) 173 Ca. App.4th 1369, Court of Appeal, Fourth District, Division 1
Defendant was convicted of sexually penetrating a person with a foreign object under 18 years of age and the Court applied the Hofsheier analysis and found that the mandatory lifetime registration requirement violated his Constitutional right to equal protection. The Court of Appeals remanded to the trial court to determine whether discretionary registration was warranted.
Penal Code Section 289(i): Sexual Penetration with Foreign Object Victim Under 16
People v. Gomez, (February 24, 2011, B224291) Court of Appeal, Second District
In an unpublished opinion, the Court of Appeal found that Hofsheier applied where Defendant was convicted of a violation of Penal Code Section 289(i), sexually penetrating a person with a foreign object under 16 years of age and remanded the issue to the trial court to determine whether Defendant would fall under the discretionary authority.