[Copyrighted Material Omitted]
Superior Court of San Bernardino County, No. CIVDS1105422, David Cohn, Judge. Court of Appeal, Fourth Appellate District, Division Two, No. E055194.
Marilee Marshall & Associates and Marilee Marshall for Plaintiff and Appellant.
Laura Beth Arnold for California Public Defender's Association as Amicus Curiae on behalf of Plaintiff and Appellant.
No appearance for Respondent.
Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for Real Party in Interest and Respondent.
Opinion by Baxter, J.,[*] with Cantil-Sakauye, C. J., Chin, Corrigan, JJ., and Elia, J., concurring. Dissenting Opinion by Werdegar, J., with Liu, J., concurring.
[183 Cal.Rptr.3d 99] [341 P.3d 1077]
The Legislature has long demonstrated a strong resolve to protect children from sexually inappropriate conduct of all kinds, including sexual intercourse and oral copulation. Depending on the nature of the conduct and the ages of the offender and the minor victim, conviction of a sexual contact crime may subject the offender to incarceration, civil penalties, and other consequences. One of the significant consequences includes application of the Sex Offender Registration Act (Pen. Code, § 290 et seq.),  which was enacted to prevent recidivism of sex offenders and facilitate their surveillance by police. As relevant here, the act allows for discretionary sex offender registration for those convicted of unlawful sexual intercourse with a minor (§ § 261.5, 290.006), but imposes mandatory registration for those convicted of crimes involving other types of sexual activity with a minor (§ 290, subds. (b), (c)).
This court previously addressed this statutory disparity in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] ( Hofsheier ). Hofsheier interpreted the federal and state equal protection clauses as invalidating mandatory sex offender registration for a 22-year-old defendant convicted of nonforcible oral copulation with a person 16 years of age (§ 288a, subd. (b)(1)), for the reason that a same-aged defendant convicted of unlawful sexual intercourse with a same-aged minor (§ 261.5) is subject to discretionary registration.  (See U.S. Const., 14th Amend.; [341 P.3d 1078] Cal. Const., art. I, § 7, subd. (a).) Although Hofsheier attempted to limit its holding to the factual circumstances before it, the Courts of Appeal have
extended Hofsheier 's reach to additional sex crimes involving adult offenders and minor victims of various ages and age differences, including crimes involving offenders 30 years or older or victims under 16 years of age. (See post, at p. 878.)
Plaintiff James Richard Johnson seeks to invoke Hofsheier in the context of his conviction for nonforcible oral copulation by an adult over 21 years with a person under 16 years of age. (§ 288a, subd. (b)(2).) At this juncture, however, continued judicial nullification of mandatory registration is denying significant effect to the legislative policy choices embodied in the Sex Offender Registration Act. Because the Legislature cannot restore the constitutional validity of requiring registration for statutorily enumerated crimes without making registration mandatory for unlawful sexual intercourse, we deem it prudent to revisit Hofsheier 's merits.
Upon reexamination, we find Hofsheier 's constitutional analysis faulty. In particular, it mistakenly concluded that no rational basis exists for subjecting intercourse offenders and oral copulation offenders to different registration consequences. Although [183 Cal.Rptr.3d 100] Hofsheier accepted the reasonableness of the Legislature's determination that, generally, mandatory registration promotes the policy goals of preventing recidivism and facilitating surveillance of sex offenders who prey on underage victims, the decision failed to adequately appreciate that, among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood. Given that unique potential, legislative concerns regarding teen pregnancy and the support of children conceived as a result of unlawful sexual intercourse provide more than just a plausible basis for allowing judicial discretion in assessing whether perpetrators of that crime should be required to register, while mandating registration for perpetrators of other nonforcible sex crimes.
Like the United States Supreme Court, " [w]e do not lightly reconsider a precedent" and are mindful that " stare decisis is the 'preferred course' in constitutional adjudication ... ." ( United States v. Dixon (1993) 509 U.S. 688, 711, 712 [125 L.Ed.2d 556, 113 S.Ct. 2849].) But Hofsheier 's flawed constitutional analysis is having a broad impact, and " 'correction through legislative action is practically impossible.' " ( Payne v. Tennessee (1991) 501 U.S. 808, 828 [115 L.Ed.2d 720, 111 S.Ct. 2597].) Accordingly, we acknowledge People v. Hofsheier, supra, 37 Cal.4th 1185 was in error and hereby overrule it.
Factual and Procedural Background
In 1990, a five-count complaint was filed against James Richard Johnson, alleging two counts of lewd acts upon a child under 14 years of age, a felony
(§ 288, subd. (a)), one count of nonforcible sodomy with a minor under 16 years of age, a felony (§ 286, subd. (b)(2)), and two counts of nonforcible oral copulation by a person over 21 years of age with a minor under 16 years of age, a felony (§ 288a, subd. (b)(2) (hereafter section 288a(b)(2)). All of these counts named the same girl as the alleged victim. Johnson, who was 27 years old at the time of the alleged conduct, pleaded guilty to a single count of felony nonforcible oral copulation in violation of section 288a(b)(2). As part of that plea, Johnson initialed and signed a declaration in which he acknowledged: " If I plead guilty to any sex crime covered by Penal Code Section 290, I will be required to register as a sex offender ... ." Johnson's section 288a(b)(2) conviction resulted in a two-year prison sentence and mandatory sex offender registration under section 290.
In 2006, our Hofsheier decision found an equal protection violation in section 290's mandatory registration provision for a different subdivision of section 288a, i.e., section 288a, subdivision (b)(1) (hereafter section 288a(b)(1)), [341 P.3d 1079] which is an alternative felony/misdemeanor " wobbler" offense. ( Hofsheier, supra, 37 Cal.4th at pp. 1192-1193.) Citing Hofsheier and its progeny, Johnson filed a petition for a writ of mandate in superior court in 2011, seeking his removal from the sex offender registry maintained by the California Department of Justice and relief from future registration obligations. (See People v. Picklesimer (2010) 48 Cal.4th 330 [106 Cal.Rptr.3d 239, 226 P.3d 348].) The superior court denied the petition in reliance on People v. Manchel (2008) 163 Cal.App.4th 1108 [78 Cal.Rptr.3d 194] ( Manchel ), a case that had rejected a Hofsheier claim by a 29-year-old defendant convicted of section 288a(b)(2), the same felony oral copulation offense at issue here.
In reversing the superior court judgment, the Court of Appeal agreed with other appellate decisions that criticized Manchel 's holding and rationale. (See People v. Luansing (2009) 176 Cal.App.4th 676 [97 Cal.Rptr.3d 836] ( Luansing ); [183 Cal.Rptr.3d 101] People v. Ranscht (2009) 173 Cal.App.4th 1369 [93 Cal.Rptr.3d 800] ( Ranscht ).) Finding that section 290's registration requirement violated Johnson's equal protection rights, the court remanded the matter to the superior court for a determination whether he should be required to register under the discretionary registration provision in section 290.006.
We granted review to decide whether Johnson is entitled to relief under Hofsheier 's equal protection analysis. Thereafter we requested briefing on whether this court should overrule Hofsheier, and if so, whether our decision should apply retroactively.
Section 290 is a key provision of California's Sex Offender Registration Act that " 'applies automatically' " to section 288a and the other offenses
enumerated therein, and " 'imposes on each person convicted a lifelong obligation to register.' [Citations.] Registration is mandatory [citation], and is 'not a permissible subject of plea agreement negotiation' [citation]." ( Wright v. Superior Court (1997) 15 Cal.4th 521, 527 [63 Cal.Rptr.2d 322, 936 P.2d 101] ( Wright ).)
Section 290 " is intended to promote the ' " state interest in controlling crime and preventing recidivism in sex offenders" ' " ( Wright, supra, 15 Cal.4th at p. 527) and serves " an important and vital public purpose by compelling registration of many serious and violent sex offenders who require continued public surveillance" ( Hofsheier, supra, 37 Cal.4th at p. 1208; see Wright, at p. 527). Children, in particular, " are a class of victims who require paramount protection" from sex offenders ( People v. Tate (1985) 164 Cal.App.3d 133, 139 [210 Cal.Rptr. 117]), and mandating lifetime registration of those who prey on underage victims serves " to notify members of the public of the existence and location of sex offenders so they can take protective measures" ( Hofsheier, at p. 1196).
A. Hofsheier and Its Progeny
In Hofsheier, supra, 37 Cal.4th 1185, the defendant claimed section 290's provision for mandatory registration of persons convicted of nonforcible oral copulation with a minor 16 or 17 years of age (§ 288a(b)(1)) violated his rights under the federal and state constitutional equal protection clauses, because persons convicted of unlawful sexual intercourse with a minor of 16 or 17 years of age (§ 261.5) were subject to discretionary sex offender registration under former section 290, subdivision (a)(2)(E) (now § 290.006).  Hofsheier [341 P.3d 1080] analyzed this equal protection claim in two steps.
[183 Cal.Rptr.3d 102] Hofsheier first assessed whether, for purposes of sex offender registration, those convicted of nonforcible oral copulation are " ' similarly situated ' " to those convicted of unlawful sexual intercourse. ( Hofsheier, supra, 37 Cal.4th at p. 1199.) Hofsheier answered this question in the affirmative, stating " [t]he
only difference" between nonforcible oral copulation under section 288a(b)(1), which mandates registration, and unlawful sexual intercourse under section 261.5, which does not, is " the nature of the sexual act." ( Hofsheier, at p. 1200.)
Hofsheier next examined whether a " rational basis" supports the statutory classification mandating lifetime sex offender registration by a person convicted of nonforcible oral copulation with a 16-year-old minor (§ 288a(b)(1)), but not by a person convicted of unlawful sexual intercourse with a 16-year-old minor (§ 261.5). ( Hofsheier, supra, 37 Cal.4th at p. 1201.) While conceding there may be a rational basis to subject both categories of offenders to mandatory registration ( id. at pp. 1202, 1207), Hofsheier could find no plausible basis--that is, no reasonably conceivable factual basis--for restricting application of the discretionary registration provision to the offenders convicted of unlawful intercourse ( id. at pp. 1202-1204). Hofsheier therefore concluded that section 290's registration mandate violated the equal protection rights of section 288a(b)(1) offenders. ( Hofsheier, at pp. 1206-1207.)
Although Hofsheier attempted to limit its holding to the factual circumstances before it, the Courts of Appeal have extended its application to additional nonforcible sex offenses covered by section 290. (E.g., People v. Thompson (2009) 177 Cal.App.4th 1424, 1430-1431 [100 Cal.Rptr.3d 57] [ Hofsheier extended to 36-year-old defendant convicted of nonforcible sodomy with 17-year-old minor (§ 286, subd. (b)(1))]; Luansing, supra, 176 Cal.App.4th at p. 685 [30-year-old defendant convicted of nonforcible oral copulation of minor under 16 years (§ 288a(b)(2))]; Ranscht, supra, 173 Cal.App.4th at p. 1375 [18-year-old defendant convicted of nonforcible digital penetration of 13 year old (§ 289, subd. (h))]; In re J.P. (2009) 170 Cal.App.4th 1292, 1299-1300 [89 Cal.Rptr.3d 17] [nonforcible oral copulation between 12-year-old juvenile and minor under 18 years (§ 288a(b)(1)), though minor in fact was under 14]; see People v. Ruffin (2011) 200 Cal.App.4th 669, 673-675 [133 Cal.Rptr.3d 27] [ Hofsheier extended to defendant convicted of nonforcible oral copulation while incarcerated (§ 288a, subd. (e)), because prison guards convicted of nonforcible oral copulation with prisoners (§ 289.6, subd. (a)(2)) are subject to discretionary registration].)  Consequently, Hofsheier 's equal protection analysis is denying significant effect to section 290.
Here, the parties dispute Hofsheier 's expansion to the crime for which Johnson was convicted. Three Court of Appeal [183 Cal.Rptr.3d 103] decisions squarely hold Hofsheier 's equal protection analysis logically applies to the offense of nonforcible oral copulation with a minor under 16 years (§ 288a(b)(2)). ( Luansing, supra, 176 Cal.App.4th at p. 685; People v. Hernandez (2008) 166 Cal.App.4th 641, 648-651 [83 Cal.Rptr.3d 29]; People v. Garcia (2008) 161 Cal.App.4th 475, 481-482 [74 Cal.Rptr.3d 681].) One Court of Appeal decision, however, distinguished Hofsheier and upheld mandatory registration for [341 P.3d 1081] a section 288a(b)(2) conviction where, as here, the ages of the offender and the victim rendered the offender additionally subject to prosecution for lewd conduct under section 288, subdivision (c)(1) (section 288(c)(1)). ( Manchel, supra, 163 Cal.App.4th at p. 1115.) Manchel 's efforts to distinguish Hofsheier were criticized in Luansing, supra, 176 Cal.App.4th at pages 683-685, and in cases involving offenses other than section 288a(b)(2). (E.g., Ranscht, supra, 173 Cal.App.4th at pp. 1373-1374; In re J.P., supra, 170 Cal.App.4th at pp. 1297-1299.)
We need not resolve whether Manchel properly distinguished Hofsheier. As we shall explain, Hofsheier 's equal protection analysis is fundamentally flawed and deserves to be overruled.
B. Stare Decisis
It is a familiar axiom that " [ s ] tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." ( Payne v. Tennessee, supra, 501 U.S. at p. 827.) " Adhering to precedent 'is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.' " ( Ibid. )
Nonetheless, we, as the highest court in California, should not feel constrained to follow " unworkable" or " badly reasoned" decisions, any more than the United States Supreme Court does. ( Payne v. Tennessee, supra, 501 U.S. at p. 827; see Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 63 [134 L.Ed.2d 252, 116 S.Ct. 1114].) " This is particularly true in constitutional cases ... ," where, as here, " 'correction through legislative action is practically impossible.' " ( Payne, at p. 828; accord, Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 921 [13 Cal.Rptr.2d 245, 838 P.2d 1198] [" stare decisis compels less deference to precedent when constitutional principles are applied to deny effect to an enactment" ].)
Erroneous precedent need not be dated or widely criticized to warrant overruling. (E.g., United States v. Dixon, supra, 509 U.S. at pp. 711-712, overruling Grady v. Corbin (1990) 495 U.S. 508 [109 L.Ed.2d 548, 110 S.Ct. 2084]; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 762-763 [76 Cal.Rptr.2d 749, 958 P.2d 1062], overruling ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 [36 Cal.Rptr.2d 552, 885 P.2d 965]; People v. Ewoldt (1994) 7 Cal.4th 380, 398-401 [27 Cal.Rptr.2d 646, 867 P.2d 757], overruling People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1] & People v. Ogunmola (1985) 39 Cal.3d 120 [215 Cal.Rptr. 855, 701 P.2d 1173].)
As detailed below, Hofsheier failed to recognize that, with regard to sex offender registration, concerns regarding recidivism, teen pregnancy, and child support obligations provide a rational basis for treating offenders who engage in unlawful sexual intercourse differently from those engaging in nonforcible oral copulation. Hofsheier 's faulty analysis has now resulted [183 Cal.Rptr.3d 104] in a number of sex crimes against minors being judicially excluded from mandatory registration, despite the legislative intent to exclude only one. Hofsheier, moreover, leaves the Legislature with a classic Hobson's choice: If the Legislature wishes to effectuate its policy judgment that mandatory registration is appropriate for sex offenders convicted of crimes other than unlawful intercourse, then the only option realistically available is to add section 261.5 to section 290's list of mandatory offenses--but that is precisely what the Legislature has repeatedly refused to do in light of the unique potential for pregnancy and parenthood that attends section 261.5 offenses.
Given the broad consequences of Hofsheier 's equal protection analysis and the Legislature's inability to take corrective action, we shall not allow principles of stare decisis to block correction of this error in our constitutional jurisprudence. ( Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 921.) 
[341 P.3d 1082] C. Hofsheier's Rational Basis Analysis Is Demonstrably Wrong
Here, as in Hofsheier, there is no reason to suppose that analysis under the federal equal protection clause would lead to a result different than that obtained under a state clause analysis. While our court has authority to construe our state Constitution independently ( Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572 [117 Cal.Rptr.2d 168, 41 P.3d 3]), we agree with our approach in Hofsheier that, in a case such as this, the high court's analysis of federal due process and equal protection principles are persuasive for purposes of the state Constitution. (See Hofsheier, supra, 37 Cal.4th at pp. 1199-1201; see also People v. Turnage (2012) 55 Cal.4th 62, 74-79 [144 Cal.Rptr.3d 489, 281 P.3d 464] ( Turnage ); Manduley, at pp. 571-572.)
Both Hofsheier and this matter involve a claimed equal protection violation based on the circumstance that section 290 includes oral copulation (§ 288a), but not unlawful sexual intercourse (§ 261.5), on its list of offenses mandating sex offender registration; unlawful intercourse is instead subject to discretionary registration under section 290.006 (see former § 290, subd. (a)(2)(E)). Hofsheier involved a 16-year-old victim (§ 288a(b)(1)), while this case [183 Cal.Rptr.3d 105] involves a victim under 16 years of age (§ 288a(b)(2)).
Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, " equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.' " ( Turnage, supra, 55 Cal.4th at p. 74, quoting Heller, supra, 509 U.S. at p. 320.) " This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [( Heller, at p. 320.)] While the realities of the subject matter cannot be completely ignored ( id. at p. 321), a court may engage in ' " rational speculation" ' as to the justifications for the legislative choice ( id. at p. 320). It is immaterial for rational basis review 'whether or not' any such speculation has 'a foundation in the record.' " ( Turnage, at pp. 74-75.) To mount a successful rational basis challenge, a party must " 'negative every conceivable basis' " that might support the disputed statutory disparity. ( Heller, at p. 320; see Turnage, at p. 75.) If a plausible basis exists for the disparity, courts may not second-guess its " 'wisdom, fairness, or logic.' " ( Heller, at p. 319; see Turnage, at p. 74.)
As noted, it is settled that section 290's lifetime registration requirement legitimately intends to " promote the ' " state interest in controlling crime and preventing recidivism in sex offenders." ' " ( Wright, supra, 15 Cal.4th at
Moreover, there is no doubt that [341 P.3d 1083] mandatory registration for sex offenders who prey on underage victims is rationally related to that important and vital public purpose. (See Hofsheier, supra, 37 Cal.4th at p. 1207.) Accordingly, an equal protection challenge can be sustained only if section 261.5 offenders and section 288a offenders are similarly situated, and if the challenger " 'negative[s] every conceivable basis' " that might support section 261.5's omission from section 290's list of offenses subject to mandatory registration. ( Heller, supra, 509 U.S. at p. 320; see Turnage, supra, 55 Cal.4th at pp. 74-75.)
Hofsheier concluded that, despite the different sex acts involved, persons convicted of nonforcible oral copulation with minors and persons convicted of unlawful sexual intercourse with minors are similarly situated so as to merit an examination whether distinctions between the two groups justify unequal registration treatment. ( Hofsheier, supra, 37 Cal.4th at pp. 1199-1200.) We need not reconsider this conclusion, because, in any event, we find Hofsheier erroneous in its rational basis analysis. As explained below, the nature and potential consequences of unlawful sexual ...