Hofsheier Overruled. What is the impact of persons who have been relieved of their duty to register under Penal Code section 290?

Penal Code section 290 requires mandatory lifetime sex offender registration for persons convicted of most sex offenses including oral copulation with a person under 18, digital penetration with a person under 18 and other “consensual” conduct with persons between the age of 16 and 18. However, sexual intercourse with a person under 18 (commonly known as statutory rape) does not require mandatory registration.

In 2006 the California Supreme Court held in People v Hofsheier (2006) 37 Cal.4th 1185, that it violated equal protection to require a person convicted of oral copulation with a person under the age of 18 to register, while not requiring that same person to have to register if he (or she) had intercourse with that same minor. This has been the law for the last nine years. And various courts have upheld several variations of this rule. The Chastaine Law Office and noted sex offender attorney in Sacramento Michael Chastaine has successfully obtained relief from sex offender registration for numerous clients throughout Northern California.

Recently the makeup of the California Supreme Court has changed. Part of the result of that change is that in January 2015 the Court reconsidered and overruled Hofsheier inJohnson v. Department of Justice, (2015) S209167, (http://www.courts.ca.gov/opinions/documents/S209167.PDF). The Court has now concluded that it isnot a violation of equal protection to require a person who gets a blow job to register while not requiring a person who has actual intercourse to do so.

This ruling will clearly preclude us from using this mechanism to obtain sex offender relief for our clients in the future. We will still continue to pursue other options, including certificates of rehabilitation, to find ways to avoid these draconian laws for our clients.

What Impact Does This Have on Clients Who Previously Granted Relief?

The unanswered question at this time (April 2015) is how this ruling impacts those clients to whom the Court previously granted relief and who have not had to register for the past several years or more. The Court stated, “we need not and do not decide whether our decision overruling Hofsheier should be given retroactive application in all cases.” Will the Court apply this ruling retroactively to force these individuals to register once again? The honest answer, right now, is, we don’t know. To date, none of my clients, to my knowledge, have received any kind of notification that would indicate that their status has changed. This is good news so far.

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