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D.M v. Department of Justice

October 12, 2012

D.M., PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF JUSTICE, DEFENDANT AND RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST AND RESPONDENT



Superior Court of Sonoma County, No. SCR14235, Gary A. Medvigy, Judge.

The opinion of the court was delivered by: Jenkins, J.

CERTIFIED FOR PUBLICATION

See Concurring Opinion

(Sonoma County Super. Ct. No. SCR14235)

Plaintiff *fn1 appeals from an order denying his petition for writ of mandate seeking to be relieved of the duty to register as a sex offender under Penal Code section 290.*fn2 The registration requirement was imposed in 1987 because of his conviction for violating section 288a, subdivision (b)(1), oral copulation with a person 16 or 17 years of age. In 2002, plaintiff obtained a certificate of rehabilitation pursuant to section 4852.13, subdivision (a). In denying plaintiff's petition for relief from the registration requirement, the trial court agreed that People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) had invalidated the mandatory application of the registration requirement for the violation of section 288a, subdivision (b)(1), but despite uncontradicted evidence that plaintiff is unlikely to reoffend, exercised its discretion to impose a lifetime registration requirement under section 290.006.*fn3

In the trial court and in his opening brief on appeal, plaintiff's principal contention was that the court should not, in the proper exercise of its discretion, order him to register under section 290.006 because there is no substantial evidence that he is likely to reoffend. In his reply brief, plaintiff for the first time has asserted numerous additional arguments. Among them is the contention that the trial court lacked jurisdiction to impose the duty to register under section 290.006 because he became entitled to automatic relief under section 290.5 when he obtained the certificate of rehabilitation in 2002. This contention rests on his argument that under the Hofsheier rationale, the provision in section 290.5, subdivision (a)(2)(N) that denies automatic relief to persons who have been convicted of violating section 288a, subdivision (b)(1) denies him equal protection. The Attorney General was given leave to respond to the new contentions and filed a supplemental brief doing so.

The Attorney General first argues that plaintiff has forfeited each of his new arguments by failing to assert them sooner. While we are troubled by plaintiff's delay, we conclude that his principal new argument presents only a question of law that may, without prejudice to the People, be considered for the first time on appeal, and that application of the forfeiture rule would result in additional waste of judicial resources, unnecessary delay and further significant harm to plaintiff.

As to the merits, we conclude that section 290.5, subdivision (a)(2)(N), which denies the automatic registration relief conveyed by a certificate of rehabilitation to persons convicted of unlawful oral copulation with a minor under section 288a, subdivision (b)(1), although such relief is available to those convicted of unlawful sexual intercourse with a minor under section 261.5, results in the denial of equal protection under the principles enunciated in Hofsheier. Because of the constitutional invalidity of section 290.5, subdivision (a)(2)(N), plaintiff necessarily is entitled to relief from the duty to register as the consequence of having obtained a certificate of rehabilitation. Hence we need not consider whether the trial court abused its discretion in disregarding plaintiff's evidence that he poses no threat of reoffending, nor need we consider plaintiff's numerous additional arguments as to why his petition was erroneously denied.

Factual and Procedural Background

In 1987, plaintiff was tried and convicted by a jury of oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)) and four counts of having unlawful sexual intercourse with a person under the age of 18 (§ 261.5). His conviction was based on the following facts*fn4

In early 1984, 37-year-old plaintiff was living with his girlfriend and her 16-year-old and 13-year-old daughters. Over the period of about a year, plaintiff engaged in oral copulation and had sexual intercourse with the older daughter on four separate occasions. She reported the molestation to the police and moved out of the home, but no action was taken at that time. Criminal charges were filed in 1986, after plaintiff ran away to Utah to marry the younger sister, who was then 14 years old. They went to Utah because they believed 14-year-olds could marry there, but returned after they learned that parental consent is required. Plaintiff was arrested on his return, but ran away with the girl a second time after posting bail. When the police located plaintiff and the girl in Texas, she was pregnant with plaintiff's child.*fn5

Following his conviction, plaintiff was sentenced to four years in state prison. At the time defendant was sentenced, he was subject to mandatory sex offender registration as a result of his conviction for violating section 288a, subdivision (b)(1). (§ 290, subd. (c).) He was released from prison in January 1989 and since that time has suffered one misdemeanor conviction for failing to register.

In 2001, plaintiff graduated from law school at Empire College and has worked for the last five years for the Department of Veterans Affairs in the Office of the General Counsel. Although passing the bar examination, plaintiff has been denied a license to practice law as a result of his conviction and the continuing registration requirement.(See Bus. & Prof. Code, § 6060, subd. (b); In re Gossage (2000) 23 Cal.4th 1080.) Similarly, although plaintiff worked as a registered nurse prior to his conviction, his license was revoked following his conviction and imposition of the registration requirement. (See Cal. Admin. Code, tit. 16, § 1444, subd. (d).) In May 2002, plaintiff was granted a certificate of rehabilitation pursuant to section 4852.13, subdivision (a).

In 2006, the California Supreme Court in Hofsheier, supra, 37 Cal.4th at pages 1192-1193, invalidated the mandatory lifetime sex offender registration requirement for persons convicted of nonforcible oral copulation with a 16- or 17-year-old minor (§ 288a, subd. (b)(1)). The court held that imposing mandatory registration on these persons violates state and federal equal protection guarantees because similarly situated offenders, those convicted of nonforcible intercourse with a 16- or 17-year-old minor (§ 261.5), are not subject to this mandatory requirement, and may be required to register as a sex offender only if the court deems registration appropriate under the discretionary provisions of what is now section 290.006. (37 Cal.4th at pp. 1197-1198.) The court concluded that the proper remedy in that case was to strike the mandatory registration but to remand to the trial court to consider whether discretionary registration was appropriate. (Id. at pp. 1208-1209.)

In 2010, the California Supreme Court held in People v. Picklesimer (2010) 48 Cal.4th 330, 335, that a claim for Hofsheier relief by an individual no longer in custody but still subject to mandatory lifetime registration must be brought by way of petition for writ of mandate in the trial court. The court explained that when ruling on the petition, the court retains discretion to continue the lifetime registration requirement under section 290.006. (Picklesimer, supra, at p. 342.

On May 25, 2010, plaintiff filed a petition for a writ of mandate in the Sonoma County Superior Court, followed by a supplemental petition on July 12, 2010, seeking relief from the mandatory registration requirement and claiming that the imposition of discretionary registration would be inappropriate. He filed a declaration and attached various exhibits in ...


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