Supreme Court of California Justia
Citation 60 Cal. 4th 871, 341 P.3d 1075, 183 Cal. Rptr. 3d 96, 15 Cal. Daily Op. Serv. 1028, 2015 Daily Journal D.A.R. 1234

Johnson v. Department of Justice



Filed 1/29/15






IN THE SUPREME COURT OF CALIFORNIA



JAMES RICHARD JOHNSON,

Plaintiff and Appellant,

S209167

v.

Ct.App. 4/2 E055194

DEPARTMENT OF JUSTICE

San Bernardino County

Defendant and Respondent;

Super. Ct. No. CIVDS 1105422

THE PEOPLE,

Real Party in Interest

and Respondent.



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.),1 which was enacted to prevent recidivism of sex

offenders and facilitate their surveillance by police. As relevant here, the act


1

Unless otherwise indicated, all further statutory references are to this code.

1




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 (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.2 (See U.S. Const., 14th Amend.;

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 pp. 7-8.)

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,


2

Throughout the Hofsheier opinion, this court referred to the offense defined

by section 288a, subdivision (b), as “voluntary oral copulation” and to the offense
defined by section 261.5 as “voluntary sexual intercourse” or “unlawful sexual
intercourse.” We shall refer to these offenses as “nonforcible oral copulation” and
“unlawful sexual intercourse,” with the understanding that such offenses do not
involve 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), 261, subd. (a)(2)) or other statutory aggravating circumstances (e.g.,
§§ 288a, subds. (c)(3), (f), (i), (k), 261, subd. (a)(1), (3)-(7)).

2



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 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.) 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.) Accordingly, we acknowledge the decision

was in error and hereby overrule it.

3



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)),

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.) The superior court denied the petition in reliance on People v.

Manchel (2008) 163 Cal.App.4th 1108 (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.

4



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 (Luansing); People v. Ranscht

(2009) 173 Cal.App.4th 1369 (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.

DISCUSSION

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 (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),

and mandating lifetime registration of those who prey on underage victims serves

5



“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).3 Hofsheier analyzed this

equal protection claim in two steps.

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


3

Hofsheier concerned a prior version of section 290, which was repealed and

reenacted in 2007. The discretionary registration provision that was included in
that prior version now appears in section 290.006, which provides: “Any person
ordered by any court to register pursuant to the [Sex Offender Registration] Act
for any offense not included specifically in subdivision (c) of Section 290, shall so
register, 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 the purposes of
sexual gratification. The court shall state on the record the reasons for its findings
and the reasons for requiring registration.”


Unlike a person charged with a sex offense enumerated in section 290, a

person charged with an offense subject to discretionary registration “may be able
to stipulate in a plea bargain that the trial judge will not order registration.”
(Hofsheier, supra, 37 Cal.4th at p. 1198.)

6



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 [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 [nonforcible oral

copulation between 12-year-old juvenile and minor under 18 years (§ 288a(b)(1)),

though minor in fact was under 14]; see also People v. Ruffin (2011) 200

Cal.App.4th 669, 673-675 [Hofsheier extended to defendant convicted of

7



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].)4 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 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; People v. Garcia (2008) 161 Cal.App.4th 475, 481-

482.) One Court of Appeal decision, however, distinguished Hofsheier and upheld

mandatory registration for 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.)


4

In People v. Kennedy (2009) 180 Cal.App.4th 403, 409-410, moreover, the

Court of Appeal indicated that equal protection claims involving section 290 not
only require comparison between section 261.5 and the sex offense of which the
subject defendant was convicted (there, § 288.2 [distribution of harmful matter to
a minor]), but also require comparison and analysis of other sex offenses for which
mandatory registration was judicially invalidated (e.g., § 288a(b)(1) [the offense in
Hofsheier]). (See also People v. Singh (2011) 198 Cal.App.4th 364, 366-367;
People v. Thompson, supra, 177 Cal.App.4th at p. 1431.)

8



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; Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44, 63.) “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 [“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;

Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,

762-763, overruling ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th

245; People v. Ewoldt (1994) 7 Cal.4th 380, 398-401, overruling People v. Tassell

(1984) 36 Cal.3d 77 & People v. Ogunmola (1985) 39 Cal.3d 120.)

9



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 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.)5


5

The dissent asserts that the potential impact of Hofsheier’s equal protection

analysis is quite limited and suggests that judicial extension of its application has
been modest without posing any conundrum. (Dis. opn., post, at pp. 5-6, 26.) The
cases cited above (ante, at pp. 7-8) prove otherwise. Bound by our precedent, the
appellate courts have applied Hofsheier to invalidate mandatory registration for
several offenses far beyond the narrow circumstances Hofsheier contemplated and,
as explained below (post, at pp. 16-21), in contravention of legislative intent. The
dissent fails to explain how we are to curb such expansion short of overruling
Hofsheier. Indeed, we granted review in this case because the court in Manchel,
supra,
163 Cal.App.4th 1108, attempted to narrow Hofsheier’s reach in a manner


(footnote continued on next page)

10



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), 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

(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 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



(footnote continued from previous page)

prompting stark criticism from other appellate courts. The dissent makes no
attempt to resolve this issue. Rather, at bottom, it defends Hofsheier’s equal
protection analysis as a fair and equitable judicial reform of a registration scheme
with which it disagrees. (Dis. opn., post, at pp. 6-8.) Clearly, however, the
rational basis standard does not give courts free license to judge the wisdom or
desirability of statutes or to act as a super-legislature. (Estate of Horman (1971) 5
Cal.3d 62, 77; accord, Heller v. Doe (1993) 509 U.S. 312, 319 (Heller).)

11



‘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; 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 p. 527.)

Moreover, there is no doubt that 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

12



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 intercourse provide actual and plausible

rationales for the Legislature’s omission of section 261.5 from section 290’s list of

offenses.

In Hofsheier, this court professed to find no plausible rationale or

reasonably conceivable factual basis that would justify different registration

consequences for persons convicted of nonforcible oral copulation with a minor

and those convicted of unlawful sexual intercourse with a minor of the same age.

In particular, Hofsheier found the difference in treatment reflects “a historical

atavism dating back to a law repealed over 30 years ago that treated all oral

copulation as criminal regardless of age or consent.” (Hofsheier, supra, 37 Cal.4th

at p. 1206.) Hofsheier essentially assumed that, once consensual sexual conduct

between adults was decriminalized in 1975, the Legislature never affirmatively

decided to impose mandatory registration on those convicted of nonforcible oral

sex with minors. (Id. at pp. 1206-1207.) For this reason, Hofsheier viewed

section 290’s current listing of nonforcible section 288a offenses as lacking a

rational basis.

Upon reconsideration of the matter, and contrary to the dissent’s

speculation, we find the notion of legislative inattention does not persuasively

explain section 290’s continued listing of nonforcible section 288a offenses. First,

despite numerous amendments and reenactments over the years (at least 10 since

1993), section 290 has continued to include all forcible and nonforcible section

288a offenses. There is no indication this has resulted from multiple oversights on

13



the Legislature’s part. Second, the year after Hofsheier was decided, the

Legislature repealed and reenacted section 290 and enacted section 290.019.

(Stats. 2007, ch. 579, § 27.) That statute reflects an express policy decision that

relief from section 290’s registration requirement is warranted only for persons

who demonstrate that their section 288a or section 286 conviction was for

“conduct between consenting adults,” and not for those whose crimes involved

minor victims. (§ 290.019, subd. (a).) Third, it is notable that, earlier this year,

the Legislature actually considered and rejected a bill that proposed to conform

statutory law to the court decisions invalidating section 290’s application to

persons convicted of nonforcible oral copulation, sodomy, and sexual penetration

involving minor victims 14 years of age or older. (Assem. Bill No. 1640 (2013-

2014 Reg. Sess.) as amended Apr. 2, 2014, § 2.) In sum, section 290’s present

inclusion of nonforcible section 288a violations is not due to the supposed failure

of lawmakers to reevaluate the matter.

Hofsheier also reasoned that subjecting section 288a(b)(1) offenders to

mandatory registration “cannot be justified by the speculative possibility that

members of [that] group are more likely to reoffend than [section 261.5

offenders].” (Hofsheier, supra, 37 Cal.4th at p. 1204.) In this regard, Hofsheier

remarked it could “perceive no reason why the Legislature would conclude that

persons who are convicted of voluntary oral copulation with adolescents 16 to 17

years old [(§ 288a(b)(1))], as opposed to those who are convicted of voluntary

intercourse with adolescents in that same age group [(§ 261.5)], constitute a class

of ‘particularly incorrigible offenders’ [citation] who require lifetime surveillance

as sex offenders.” (Hofsheier, at pp. 1206-1207.)

There is, in fact, much more than a speculative possibility that sexual

predators are more successful in manipulating minors to engage in oral copulation,

as opposed to sexual intercourse. Studies indicate that pubescent minors may be

14



more receptive to engaging in oral sex, which does not risk pregnancy and which

many such minors believe is lower in risk for sexually transmitted diseases. (E.g.,

Halpern-Felsher et al., Oral Versus Vaginal Sex Among Adolescents: Perceptions,

Attitudes, and Behavior (Apr. 2005) 115, No. 4 Pediatrics 845, currently available

online at http://pediatrics.aappublications.org/content/115/4/845.full.pdf+html [as

of Jan. 29, 2014] (Halpern-Felsher).)6 As for pedophiles, who, by definition,

target prepubescent minors, studies show that, “[t]ypically, pedophiles engage in

fondling and genital manipulation more than intercourse,” except in cases of

incest, forcible encounters, and when pedophiles prefer older children. (Hall et al.,

A Profile of Pedophilia: Definition, Characteristics of Offenders, Recidivism,

Treatment Outcomes, and Forensic Issues (Apr. 2007) 82 Mayo Clinic

Proceedings 457, 458, currently available online at

www.mayoclinicproceedings.org/article/S0025-6196(11)61074-4/fulltext [as of

Jan. 29, 2014].) In light of the foregoing, the Legislature could plausibly assume


6

This article references a study reflecting that the surveyed adolescents

“evaluated oral sex as significantly less risky than vaginal sex on health, social,
and emotional consequences” and “believed that oral sex is more acceptable than
vaginal sex for adolescents their own age in both dating and nondating situations,
[that] oral sex is less of a threat to their values and beliefs, and [that] more of their
peers will have oral sex than vaginal sex in the near future.” (Halpern-Fisher,
supra, Abstract, at p. 845.)


We note Hofsheier found little relevance in “various media reports that oral

copulation among adolescents has increased in recent years because oral
copulation involves no risk of pregnancy and has a lesser risk of transmitting
HIV,” because such reports apparently discussed “sexual conduct between
adolescents, not conduct between adolescents and adults.” (Hofsheier, supra, 37
Cal.4th at p. 1203, fn. omitted.) The Halpern-Felsher article, however, does not
indicate its cited survey pertained solely to sexual activity between adolescents,
and Johnson points to nothing suggesting that adolescent attitudes and practices
would be different with regard to the same sexual conduct between adolescents
and adults.

15



that predators and pedophiles engaging in oral copulation have more opportunities

to reoffend than those engaging in sexual intercourse, and, for that reason, are

especially prone to recidivism and require ongoing surveillance.

Moreover, no one disputes that section 290’s application to section

288a(b)(1) offenses, considered alone, is rationally related to the legislative goals

of deterrence, preventing recidivism, and protecting the public. Therefore, the

question is not whether such goals would be adequately promoted by allowing

discretionary, as opposed to mandatory, registration for such offenses. Instead, the

relevant inquiry is whether a legitimate reason exists that permits the Legislature

to require registration for nonforcible oral copulation offenses while affording trial

courts discretion for unlawful sexual intercourse offenses.

Contrary to Hofsheier’s observation, “the nature of the sexual act” is not

the “only difference” between unlawful sexual intercourse and nonforcible oral

copulation. (Hofsheier, supra, 37 Cal.4th at p. 1200.) Among the various sex

offenses, unlawful sexual intercourse is unique in its potential to result in

pregnancy and parenthood. The act of intercourse, by itself, nearly always carries

this potential, while engaging in oral copulation or other non-intercourse sexual

activity, by itself, never does. Given the potential life-altering consequences of

intercourse, it may seem, at first blush, anomalous that section 261.5 is one of the

only — if not the only — offenses proscribing sexual contact with a minor that is

subject to discretionary, as opposed to mandatory, registration. (§ 290.006.)

Though section 261.5 violations may seem just as deserving of mandatory

registration as nonforcible oral copulation offenses, the legislative history of

section 261.5 dispels any notion that confining the availability of discretionary

registration to intercourse offenders has no rational basis. The 1970 legislation

that separated the offenses of rape and unlawful sexual intercourse with a female

under age 18 — by moving the latter from the general rape statute (§ 261) to

16



section 261.5 — originated with the State Bar of California. (Sen. Bill No. 497

(1970 Reg. Sess.) chaptered as Stats. 1970, ch. 1301, §§ 1, 2, pp. 2405-2406.) In

an analysis of that legislation, the State Bar’s legislative representative explained:

“When there are consenting near-adults involved, but for some reason the girl’s

parents or the Social Welfare Department wants to force the boy to support the

child, it is unrealistic to have the connotation of ‘rape’ attached to his crime.

Many private employees do not differentiate between ‘statutory rape’ and ‘forcible

rape,’ and refuse to hire a ‘rapist.’[7] As a result, the capacity to earn money to

support a child is severely handicapped. This bill merely seeks to eliminate this

social stigma.” (Harold F. Bradford, State Bar of Cal. Legis. Rep., analysis for

Assem. Com. on Criminal Procedure of Sen. Bill No. 497 (1970 Reg. Sess.),

undated, p. 1.) Thus, in separating and renaming the offense of unlawful sexual

intercourse, the Legislature sought to eliminate, for section 261.5 offenses, the

social stigma associated with the rape label so that offenders could more readily

obtain employment and support children conceived as a result of such intercourse.

(Ibid.; Sen. Com. on Judiciary, analysis of Sen. Bill No. 497 (1970 Reg. Sess.);

Sen. Beilenson, sponsor of Sen. Bill No. 497 (1970 Reg. Sess.), letter to Governor,

Aug. 26, 1970.) This history confirms that the potential for pregnancy and

parenthood has, in fact, influenced legislative decisionmaking regarding unlawful

intercourse with minors.

Indeed, more than two decades later, the Legislature made explicit findings

that “[i]llicit sexual activity between adult males and teenage or younger girls in

this state is resulting in the nation’s highest teenage pregnancy and birth rate,” and

that “[m]any of these adult males are repeat offenders who have fathered more

7

Read in context, this sentence clearly meant to refer to private employers,

not “private employees.”

17



than one child by different teenage mothers, yet accept little or no responsibility

for their actions or for the support of their children.” (Stats. 1996, ch. 789, § 2,

subd. (a), p. 4161.) Emphasizing that “California spent $3.08 billion in 1985 to

assist families headed by teenagers,” but “would have saved $1.23 billion in

welfare and health care expenses” had parenthood been delayed, the Legislature

declared that “[t]he laws prohibiting adults from having sexual relations with

persons under the age of 18 years must be more vigorously enforced,” and that

“[a]dult males who prey upon minor girls must be held accountable for their

conduct and accept responsibility for their actions.” (Id. at §2, subds. (b), (c),

p. 4161.) Based on these findings, the Legislature amended section 261.5 to

subject adults convicted of sexual intercourse with minors to graduated civil

penalties (ranging from $2,000 to $25,000), based on the age difference between

the minor victim and the adult offender. (§ 261.5, subd. (e)(1).) Any amounts so

recovered must be applied toward recouping the costs in pursuing the penalties,

with the remainder deposited in the Underage Pregnancy Prevention Fund.

(§ 261.5, subd. (e)(2).) These civil penalties are not applicable to persons

convicted of offenses involving sexual contact other than intercourse with minor

victims.

Hence, the very real problem of teen pregnancy and its costly

consequences, as well as legislative concern that stigmatization might interfere

with employment opportunities and the support of children conceived as a result of

unlawful intercourse, offer more than just plausible bases for treating section

261.5 offenders differently than other types of sex offenders. Providing for

discretion in section 261.5 cases allows the trial court to order registration in

appropriate situations, while maintaining flexibility in those cases where, for

instance, registration might cause economic or other hardship to a child born to the

minor victim and the adult offender.

18



Additionally, as Hofsheier acknowledged, the Legislature, on at least three

separate occasions up to that point, specifically considered, and ultimately

rejected, proposed amendments that would have imposed mandatory registration

for section 261.5 offenders. (Hofsheier, supra, 37 Cal.4th at p. 1206.) For

instance, in 1997 a bill was introduced that would have amended section 290 to

add section 261.5 to the list of offenses subject to mandatory lifetime registration.

(Assem. Bill. No. 1303 (1997-1998 Reg. Sess.), as introduced Feb. 28, 1997.) In

considering this bill, the Legislature expressly questioned whether extending the

requirement to section 261.5 offenders might have negative repercussions when

voluntary intercourse between individuals in a relationship results in the birth of a

child. (Assem. Com. on Public Safety, Analysis of Assem. Bill. No. 1303 (1997-

1998 Reg. Sess.) as amended Apr. 16, 1997, p. 4 [“How many teen[] mothers

would want the father of their child to plead guilty of statutory rape and be subject

to a life time registration requirement?”].)

Subsequent to Hofsheier, and to this day, the Legislature has not acted to

add section 261.5 to section 290’s list of offenses subject to mandatory

registration. Because the Legislature has acted purposefully and consistently to

preserve discretionary sex offender registration for section 261.5 offenders, we

may reasonably infer its public policy concerns would not be served by mandating

registration for such offenders in order to cure the constitutional infirmity found

by Hofsheier.

In rejecting the potential for pregnancy as a legitimate reason for

differentiated treatment of intercourse offenders, Hofsheier observed that “persons

convicted of voluntary oral copulation . . . may have also engaged in intercourse

(whether they were convicted of it or not) and a pregnancy may have resulted.”

(Hofsheier, supra, 37 Cal.4th at p. 1205.) There appears, however, no legal

authority suggesting that the same registration consequences are constitutionally

19



required because certain defendants might at times commit both offenses with the

same victims.8

Finally, “[w]hen conducting rational basis review, we must accept any

gross generalizations and rough accommodations that the Legislature seems to

have made.” (Turnage, supra, 55 Cal.4th at p. 77.) “A classification is not

arbitrary or irrational simply because there is an ‘imperfect fit between means and

ends’ ” (ibid., quoting Heller, supra, 509 U.S. at p. 321), or “because it may be ‘to

some extent both underinclusive and overinclusive’ ” (Warden v. State Bar (1999)

21 Cal.4th 628, 649, fn. 13, quoting Vance v. Bradley (1979) 440 U.S. 93, 108).

Consequently, any plausible reason for distinguishing between oral copulation and

intercourse for purposes of mandatory registration need not exist in every scenario

in which the statutes might apply. It is sufficient that the oral copulation activity

prohibited by section 288a(b) lacks the same inherent capacity to cause pregnancy

as the sexual intercourse activity prohibited by section 261.5.

At bottom, the Legislature is afforded considerable latitude in defining and

setting the consequences of criminal offenses. (Turnage, supra, 55 Cal.4th at

p. 74; People v. Wilkinson (2004) 33 Cal.4th 821, 840.) In light of the legitimate

purposes of sex offender registration, and the plausible and actual legislative

concerns noted above, it cannot be said that the differentiated treatment of section


8

In Hofsheier, as here, nothing indicated the defendant engaged in

intercourse with his victim. However, if a person were to engage in both oral
copulation and unlawful intercourse with a minor, the district attorney would have
discretion to prosecute that person for either or both crimes. An exercise of such
discretion generally does not violate equal protection, and even without Hofsheier,
a person who committed both offenses with the same victim could establish an
equal protection violation upon a showing that he or she was singled out
deliberately for prosecution on the basis of some invidious criterion and that the
prosecution would not have been pursued except for the discriminatory purpose.
(See Manduley v. Superior Court, supra, 27 Cal.4th at pp. 568-570.)

20



261.5 and section 288a offenders “so lack[s] rationality” that it constitutes “a

constitutionally impermissible denial of equal protection.” (New Orleans v. Dukes

(1976) 427 U.S. 297, 305.)9

Accordingly, we hereby overrule People v. Hofsheier, supra, 37 Cal.4th

1185, to the extent it is inconsistent with the views expressed herein. We also

disapprove those Court of Appeal decisions that applied Hofsheier’s rationale —

i.e., the absence of a rational basis for distinguishing, as to sex offender

registration, between oral copulation with a minor and unlawful sexual intercourse

— to other sex offenses involving minors and others. (E.g., People v. Ruffin,

supra, 200 Cal.App.4th at pp. 673-675; People v. Thompson, supra, 177

Cal.App.4th at pp. 1430-1431; Luansing, supra, 176 Cal.App.4th at p. 685;

Ranscht, supra, 173 Cal.App.4th at p. 1375; In re J.P., supra, 170 Cal.App.4th at

pp. 1299-1300; People v. Hernandez, supra, 166 Cal.App.4th at pp. 648-651;

People v. Garcia, supra, 161 Cal.App.4th pp. 481-482.)

D. Effect of Overruling Hofsheier

Inasmuch as Johnson’s claim for relief rests entirely on Hofsheier, we

conclude, with respect to his section 288a(b)(2) conviction, that there is no

violation of his federal and state constitutional rights to equal protection of the

laws in the ongoing requirement that he register as a sex offender pursuant to

9

The dissent makes no attempt to demonstrate that Johnson has negated

“ ‘every conceivable basis’ ” that might support the challenged statutory disparity.
(Heller, supra, 509 U.S. at p. 320; see Turnage, supra, 55 Cal.4th at p. 75.)
Instead, the dissent’s defense of Hofsheier rests largely on media and law review
articles suggesting that sections 288a, 286, and 290 were intended to discriminate
against homosexuals and in the past were discriminatorily enforced in such a
manner. We note that 27-year-old Johnson committed his sex offense against a
girl under 16 years of age and has made no claim that section 290, which has
always been neutral on its face, violates equal protection because of a supposedly
disparate impact on homosexuals.

21



section 290. The question remains whether or not retroactive application of the

instant decision is appropriate under the circumstances here.

A decision of a court overruling a prior decision is typically given full

retroactive effect. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 400.)

Despite this general rule, the federal and state Constitutions do not prohibit an

appellate court from restricting retroactive application of an overruling decision on

grounds of equity and public policy. (Forster Shipbldg. Co. v. County of L.A.

(1960) 54 Cal.2d 450, 458-459; see Woods v. Young (1991) 53 Cal.3d 315, 330;

accord, Great Northern Ry. v. Sunburst Co. (1932) 287 U.S. 358, 364-365.)10

We see no reason to deny retroactive application where, as here, a sex

offender has taken no action in justifiable reliance on the overruled decision. (Cf.

Claxton v. Waters (2004) 34 Cal.4th 367, 378-379.) It was in 1990 that Johnson

pleaded guilty to one count of violating section 288a(b)(2) by engaging in oral

copulation of a minor under 16 years of age. As part of that plea, Johnson initialed


10

As respondent observes, sex offender registration is not punishment (In re

Alva (2004) 33 Cal.4th 254, 268), and a person may be required to register for
crimes that were committed before they became offenses subject to registration
(People v. Castellanos (1999) 21 Cal.4th 785, 788 (lead opn. of George, C.J.); id.
at p. 800 (conc. & dis. opn. of Kennard, J.)). As for offenders who entered plea
agreements, “the general rule in California is that a plea agreement is ‘ “deemed to
incorporate and contemplate not only the existing law but the reserve power of the
state to amend the law or enact additional laws for the public good and in
pursuance of public policy.” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 73.) It
therefore follows that “requiring the parties’ compliance with changes in the law
made retroactive to them does not violate the terms of the plea agreement, nor
does the failure of a plea agreement to reference the possibility the law might
change translate into an implied promise the defendant will be unaffected by a
change in the statutory consequences attending his or her conviction.” (Id. at
pp. 73-74.) Here, however, a legislative change in the law is not at issue. Rather,
this court is overruling a prior decision that featured a flawed constitutional
analysis having binding legal effect. Accordingly, we may assess whether equity
and public policy favor nonretroactive application of today’s decision.

22



and signed a declaration in which he acknowledged his obligation to register as a

sex offender pursuant to section 290. Hofsheier, supra, 37 Cal.4th 1185, was

decided in 2006. Clearly, Johnson’s decision to plead and his obligation to

register as a sex offender did not result from any reliance on the state of the law as

this court articulated it in Hofsheier. In circumstances such as these, there is no

unfairness or inequity in rejecting an equal protection challenge based on our

overruling of Hofsheier.11

CONCLUSION AND DISPOSITION

Contrary to the dissent’s supposition, this case is not about whether

discretionary registration would, or would not, be just as appropriate and effective

in nonforcible oral copulation cases as the Legislature has deemed it to be in

unlawful sexual intercourse cases. As explained above, the relevant issue is

whether the statutory disparity mandating registration for oral copulation offenders

(§§ 288a(b), 290), while affording trial court discretion for intercourse offenders

(§§ 261.5, 290.006), has a rational basis.


11

We need not and do not decide whether today’s decision overruling

Hofsheier should be given retroactive application in all cases.

23



Rather than perpetuate a flawed constitutional analysis that denies

significant effect to section 290, we acknowledge that Hofsheier was wrong.

Actual and plausible legislative concerns regarding recidivism, teen pregnancy,

and the support of children conceived as a result of intercourse provide a rational

basis for the difference in registration consequences as between those convicted of

unlawful intercourse and those convicted of nonforcible oral copulation. While

this court will not condone unconstitutional variances in the statutory

consequences of our criminal laws, rational basis review requires that we respect a

statutory disparity supported by a reasonably conceivable state of facts. “ ‘ “Only

by faithful adherence to this guiding principle of judicial review of legislation is it

possible to preserve to the legislative branch its rightful independence and its

ability to function.” ’ ” (FCC v. Beach Communications, Inc. (1993) 508 U.S.

307, 315.)

We reverse the judgment of the Court of Appeal and remand the matter to

that court for further proceedings consistent with the views expressed herein.













BAXTER, J.*

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
ELIA, J.P.T.**


* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

** Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

24












DISSENTING OPINION BY WERDEGAR, J.

Because the majority, as I explain, unnecessarily overrules this court’s

precedent in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), I

respectfully dissent.

Petitioner, convicted of oral copulation with a person under 16 years of age

(Pen. Code, § 288a, subd. (b)(2)), 1 claims he has been denied equal protection of

the law because his oral copulation conviction subjects him to mandatory

registration as a sex offender under section 290. Had he instead had sexual

intercourse with the victim, petitioner contends, he would have committed a

violation of section 261.5, subdivision (d) (unlawful sexual intercourse with

person under 16 by person 21 or older), an offense not subject to mandatory

registration under section 290. (See Hofsheier, supra, 37 Cal.4th at pp. 1192–

1193 [finding an equal protection violation as to a defendant convicted of oral

copulation with a 16 year old].)

We granted review to decide whether Hofsheier’s holding applies to

defendant, who the record indicates was 27 years old at the time of his offense and

thus potentially subject to prosecution under section 288, subdivision (c)(1), a

mandatory registration offense, regardless of which sexual act he performed. We


1

All further unspecified statutory references are to the Penal Code.

1



later asked the parties to brief the question of whether this court should overrule its

decision in Hofsheier.

The majority decides Hofsheier should be overruled. I disagree.

As I will explain (see pt. II., post), Hofsheier’s holding rests on a sound

equal protection analysis. Our registration law establishes a statutory

discrimination between oral copulation and sexual intercourse, in which those who

commit the former act with minors but without the use of force are uniformly

subject to mandatory lifetime registration as sex offenders under section 290,

while those who commit the latter act with minors but without the use of force are

required to register only in the discretion of the trial court under section 290.006.

This discrimination does not rest on a rational ground of legislative distinction but

is an anachronistic holdover from a period (before 1975, when California laws on

consensual adult sex acts were liberalized) when oral copulation and sodomy were

regarded as abhorrent sexual perversions closely associated with homosexuality

and were therefore outlawed regardless of the participants’ ages.

Since 1975 the Legislature has, as the majority discusses, considered and

rejected bills making unlawful sexual intercourse (§ 261.5) a mandatory

registration offense under section 290 (maj. opn., ante, at p. 19). Of significance,

however, is that the Legislature does not appear to have reconsidered its

preliberalization comparative determination that all oral copulation with minors

regardless of the circumstances requires lifetime registration, while sexual

intercourse with minors requires registration only in the discretion of the

sentencing court. Viewed in historical perspective, the statutory distinction in

treatment between section 288a offenders and section 261.5 offenders does not

rest on a “ ‘realistically conceivable’ ” legitimate purpose; to speculate on possible

bases, as the majority does, is merely to “invent[] fictitious purposes that could not

2



have been within the contemplation of the Legislature.” (Fein v. Permanente

Medical Group (1985) 38 Cal.3d 137, 163 (Fein).)

Clearly, a majority of the justices sitting on this case would not reach the

same constitutional conclusion as did the court nine years ago in Hofsheier, supra,

37 Cal.4th 1185. But under the doctrine of stare decisis our precedent is

nonetheless binding, absent extraordinary circumstances. Here we have no cause

to depart from stare decisis and many reasons to adhere to our precedent. The

majority posits no adequate grounds for overruling Hofsheier, a recent precedent

that has engendered no widespread criticism or confusion, that has been relied on

by those subject to registration under section 290, and that has afforded trial courts

the flexibility to forgo ordering registration in circumstances where it would be

unjust and counterproductive.

I. Stare Decisis

“It is, of course, a fundamental jurisprudential policy that prior applicable

precedent usually must be followed even though the case, if considered anew,

might be decided differently by the current justices. This policy, known as the

doctrine of stare decisis, ‘is based on the assumption that certainty, predictability

and stability in the law are the major objectives of the legal system; i.e., that

parties should be able to regulate their conduct and enter into relationships with

reasonable assurance of the governing rules of law.’ ” (Moradi-Shalal v.

Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296 (Moradi-Shalal).)

The doctrine is not applied rigidly, of course, and does not prevent a court from

correcting its errors, especially when the prior decision’s errors relate to a matter

of continuing concern. (Id. at pp. 296–297.) In particular, “reexamination of

precedent may become necessary when subsequent developments indicate an

3



earlier decision was unsound, or has become ripe for reconsideration.” (Id. at

p. 297.)

In Moradi-Shalal, we concluded considerations of stare decisis did not

warrant continuing to follow our then recent decision in Royal Globe Ins. Co. v.

Superior Court (1979) 23 Cal.3d 880, which had held certain private causes of

action for unfair claims practices were authorized by provisions of the Insurance

Code. Examining events following the decision in Royal Globe, we found that

courts in 17 states had expressly or implicitly rejected its holding (Moradi-Shalal,

supra, 46 Cal.3d at p. 297) and that a “disturbing” number of scholarly writers had

criticized the decision (id. at p. 299), suggesting it had had “adverse social and

economic consequences” (id. at p. 301). We further noted that “the lower courts

have experienced considerable difficulty in attempting to define the scope of

the Royal Globe cause of action” and that as a consequence “we have granted

review in approximately 25 other cases raising a variety of Royal Globe issues and

reaching a variety of conflicting conclusions.” (Moradi-Shalal, supra, 46 Cal.3d

at p. 303; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit

Assn. (2013) 55 Cal.4th 1169, 1176–1178 [detailing criticism by courts and

commentators of decision to be overruled and difficulty of courts in applying the

precedent]; Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 98–

102 [describing extensive judicial and academic criticism of decision to be

overruled].)

No similar circumstances pertain to our decision in Hofsheier, supra, 37

Cal.4th 1185. Since its release in 2006, Hofsheier has not been the subject of

criticism from either judicial or academic sources. As discussed below, several

California Court of Appeal decisions have distinguished Hofsheier and declined to

apply it to new circumstances, but no decision by a federal or sister-state court has

4



criticized it or declined to adopt its holding, and no law review article has

addressed it critically. The direct commentary has been positive2 or neutral.3

Although some questions have arisen in applying Hofsheier’s holding, the

majority exaggerates their significance, for none poses intractable logical

dilemmas or threats to doctrinal coherence. After resolving a key procedural issue


2

See Strader, Lawrence’s Criminal Law (2011) 16 Berkeley J. Crim. L.

41, 92–93 and footnote 285 (Hofsheier is analogous to State v. Limon (2005) 280
Kan. 275, which correctly held (in the article’s words) that “maintaining
heterosexuality as the governing norm is not a rational basis for discrimination”);
Comment, The Present Case Does Involve Minors: An Overview of the
Discriminatory Effects of Romeo and Juliet Provisions and Sentencing Practices
on Lesbian, Gay, Bisexual, and Transgender Youth
(2011) 20 Law & Sexuality 97,
111 (applauding Hofsheier for recognizing that “[e]ven a ‘minor exception’ [to
Lawrence v. Texas (2003) 539 U.S. 558] cannot justify discriminatory laws”);
Comment, Are Bills of Attainder the New Currency? Challenging the
Constitutionality of Sex Offender Regulations That Inflict Punishment Without the
“Safeguard of A Judicial Trial”
(2010) 37 Pepperdine L.Rev. 1301, 1325 and
footnote 141 (Hofsheier is an example of a court appropriately protecting the
constitutional rights of sex offenders); Comment, Romeo and Romeo: Coming
Out from Under the Umbrella of Sexual Abuse
(2009) 8 Whittier J. Child & Fam.
Advoc. 237, 252 (Hofsheier exemplifies principle that “[t]reating such sexual
conduct between minors of the same or similar age differently on the basis of
whether the sexual conduct has the capacity to be procreative violates [equal
protection]”).

3

Gong and Shapiro, Sexual Privacy After Lawrence v. Texas (2012) 13 Geo.

J. Gender & L. 487, 504 (whether an equal protection violation can be found
when, as in Hofsheier, “the distinction is between two different sex acts, both
committed heterosexually . . . is likely to be an area for further legal development
in the near future” (fn. omitted)); Note, People v. Hofsheier, 37 Cal.4th 1185
(2006)
(2007) 34 W.St.U. L.Rev. 307, 312 (ambivalently observing that Hofsheier
“vindicates some of the justifiable rights of sex offenders that are sadly
circumvented by the courts” and represents a step by this court “toward losing
some of its more archaic rules and codified beliefs” but that “[i]t remains to be
seen” whether the court’s resolution of an issue on which the Legislature has not
pronounced “is advisable”).


5



in People v. Picklesimer (2010) 48 Cal.4th 330, we have found no decisional

conflict or conundrum that called for our review until the instant case, for which

we have granted and held four additional cases. (Cf. Freeman & Mills, Inc. v.

Belcher Oil Co., supra, 11 Cal.4th at p. 97 [confusion generated by decision to be

overruled is so great that resolving it would involve a “Herculean” effort].)

Nor is there any reason to suppose Hofsheier’s social effects have been

adverse. (Cf. Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit

Assn., supra, 55 Cal.4th at p. 1177 [decision to be overruled tends to further

fraudulent practices]; Freeman & Mills, Inc. v. Belcher Oil Co., supra, 11 Cal.4th

at p. 102 [decision to be overruled creates potential for excessive tort damage

awards]; Moradi-Shalal, supra, 46 Cal.3d at p. 301 [decision to be overruled tends

to promote multiple litigation, inflate insurance settlements and raise insurance

costs].) To the contrary, giving trial courts the discretion to forgo ordering

registration for those convicted of oral copulation with 16 and 17 year olds

appears to have social benefits, permitting prosecutors and courts to avoid

unnecessarily imposing lifetime stigma and restricted liberty on nonpredatory

offenders and giving greater equality of treatment to those with same-sex sexual

partners. To overrule our decision in Hofsheier, supra, 37 Cal.4th 1185, without

compelling grounds defeats the public expectation that the court will generally act,

where possible within the law, to maintain or increase fairness and equality in the

law.

Registration under section 290 carries with it not only the onerous lifetime

registration requirements themselves, but also significant stigma and severe

restrictions on residence choice. Hofsheier allows relief from these strictures for

an offender who, from the circumstances of the offense and the personal history of

the offender, the court in its discretion considers to be nonpredatory and at low

risk of committing future sex offenses. Prosecutors and the courts may thus avoid

6



stigmatizing and stunting the personal and economic lives of those nonpredatory

offenders who engaged in oral sex within consensual intimate relationships with

minors (both same sex and opposite sex) and have already served their sentences,

in some cases many years ago.

Under Hofsheier, supra, 37 Cal.4th 1185, for example, a man convicted

decades ago at age 19 of oral sex with his 17-year-old girlfriend, now his wife,

could seek relief from mandatory registration. (See California Supreme Court to

Weigh Sex Offender Registration, S.F. Daily J. (Feb. 18, 2014) p. 1.) Under

today’s decision overruling Hofsheier, he cannot. Under Hofsheier, a 23-year-old

woman who had a month-long sexual relationship with a 15-year-old girl, and who

the trial court said had learned from her mistake — noting that “I don’t believe we

are ever going to see you in a situation again where you are engaging in sexual

relationships or relations with children” — would be able to seek relief from

mandatory registration.4 Under today’s decision, she cannot, but instead must

continue to register as a sex offender for the rest of her life. Under Hofsheier, a

man who, when he was 12 years old, called child protective services to report his

own sexual conduct with his younger brother and later admitted a violation of

section 288a, could seek relief from mandatory registration. (In re J.P. (2009) 170

Cal.App.4th 1292.) Under today’s decision, he cannot, and must register as a sex

offender for the rest of his life, living with both the public stigma of being branded

a sex offender and the severe residential restrictions California law places on those

required to register. (See § 3003.5, subd. (b).)

Giving trial courts discretion to forgo ordering registration also tends to

alleviate the overinclusiveness that has plagued California’s registration system.


4

These facts arose in a California case discussed in an unpublished appellate

decision, which under California Rules of Court, rule 8.1115 may not be cited.

7



Unlike most states with sex offender registration, California requires lifetime

registration for all qualifying offenders. Partly for this reason, we have the largest

number of registrants in the nation – about 76,000 outside of prisons and jails.

(Cal. Sex Offender Management Bd., A Better Path to Community Safety: Sex

Offender Registration in California (2014) p. 3 (A Better Path); Cal. Sex Offender

Management Bd., Recommendations Report (Jan. 2010) p. 50.) Having so many

offenders on the rolls makes it difficult for law enforcement to effectively

supervise those who present the greatest public danger: “In this one-size-fits-all

system of registration, law enforcement cannot concentrate its scarce resources on

close supervision of the more dangerous offenders or on those who are at higher

risk of committing another sex crime.” (Cal. Sex Offender Management Bd.,

Recommendations Report, supra, p. 50.) As the public board charged with

evaluating and improving the state’s treatment of sex offenders in the community

recently concluded, “California policy makers need to rethink the registration laws

because society is actually better protected when attention is focused on those who

truly present a risk while very low-risk sex offenders are permitted to develop

stable lifestyles and move forward with their lives.” (A Better Path, supra, at p. 5,

boldface omitted.) Though Hofsheier rested, of course, on constitutional rather

than policy grounds, our holding improved the system by giving trial courts

discretion over registration of those convicted under section 288a. Today’s

decision unnecessarily reverses that small step toward reform.

Overruling Hofsheier, supra, 37 Cal.4th 1185, also creates potentially

substantial risks to individuals who have relied on our decision and will no doubt

engender new litigation to settle questions of its application. In the nine years

since Hofsheier was filed, an unknown number of offenders convicted of violating

section 288a have been released into society without orders to register as sex

offenders, or have been relieved of their prior registration obligations through writ

8



proceedings. The possible consequences for them of Hofsheier’s overruling are

unclear. What will be their potential liability for failure to comply with the law’s

strict time-limited registration requirements in the interim? (See §§ 290.012,

290.013 [setting short deadlines for registration annually and upon change of

residence].)

In their briefing, the People acknowledge that some form of notice will be

necessary before a person who, after Hofsheier, was not required to register or

who successfully petitioned for relief from mandatory registration could be

convicted of the willful failure to register. (§ 290.018, subds. (a), (b).) Left

unanswered is whether the California Department of Justice, which administers

the registration system, has the means to identify such new or renewed registrants

or to reach all those persons who are identified with adequate notice. Also unclear

is what form of notice will suffice to allow prosecution for willful failure to

register. In People v. Garcia (2001) 25 Cal.4th 744, 752–754, we held a

conviction for that offense requires proof of actual knowledge of the registration

requirement. Presumably, then, the Department of Justice will attempt to obtain

some form of acknowledgement from recipients that they have received and read

the notice of Hofsheier’s overruling. (See Garcia, supra, at p. 755 [failure to

instruct jury on knowledge requirement harmless where jury necessarily found the

defendant, on release from incarceration, read and signed form telling him of

registration requirements].) To the extent the notice even reaches unincarcerated

nonregistrants, however, many are likely to refrain from signing and returning it,

leaving unclear their criminal liability under section 290.018, subdivision (a) or

(b). (See also § 290.018, subd. (j) [punishing as a misdemeanor, without any

express requirement of willfulness, “the failure to provide information required on

registration and reregistration forms of the Department of Justice”].)

9



Uncertainty also surrounds the consequences of today’s decision on

allowable residences for those now required to register. If such an offender has

acquired or returned to a residence that is unlawful for persons required to register

(see § 3003.5, subd. (b)), will the offender have to immediately move out, and will

he or she be liable for a violation of section 3003.5 for any time spent in a

prohibited residence? Section 3003.5 does not by its terms require willfulness or

knowledge of the residency limitations or of one’s registration requirement; with

Hofsheier overruled, therefore, section 288a offenders who, since that decision,

have acquired or returned to a noncompliant residence may face criminal liability

regardless of their lack of notice or knowledge. And criminal liability aside, they

could face significant economic and personal hardship in having to uproot

themselves and their families to seek compliant housing.

As the majority seemingly acknowledges, defendants may also have relied on

Hofsheier by agreeing, in plea negotiations, to plead to offenses that do not carry

mandatory registration under that decision or its progeny. (Maj. opn., ante, at

pp. 22–23.) The majority opinion leaves open whether and how such defendants

may obtain relief, either from the newly imposed registration requirement or from

their convictions. In this respect as well, today’s decision is likely to be a fertile

source of doubt and litigation.

In an area of the law where the application of burdensome lifetime

restrictions on liberty, enforceable by additional criminal sanctions (§ 290.018),

depends on our decisions, stability would seem of the highest importance. In this

area of law, we should not overrule our precedents without the most compelling

cause. No such cause is present here.

10



II. The Merits of Hofsheier’s Holding

Section 290 requires persons convicted of specified sex offenses to register

with law enforcement agencies as sex offenders periodically and for the rest of

their lives. Persons convicted of nonspecified crimes may also be required to

register, in the discretion of the trial court, on findings that the offense was

committed out of sexual compulsion or for sexual gratification and that the

circumstances weigh in favor of ordering registration. (§ 290.006; Hofsheier,

supra, 37 Cal.4th at p. 1197.) As relevant here, subdivision (c) of section 290 lists

as offenses requiring mandatory registration all violations of section 288a

(unlawful oral copulation), but not violations of section 261.5 (unlawful sexual

intercourse with minor).

In Hofsheier, the defendant had engaged in voluntary oral copulation5 with

a 16-year-old girl. Convicted by plea of violating section 288a, subdivision (b)(1),

he was granted probation and ordered to register as a sex offender. (Hofsheier,

supra, 37 Cal.4th at p. 1193.) On appeal, the defendant claimed the unequal

treatment of oral copulation and sexual intercourse violated his constitutional

rights. (Id. at p. 1194.) As we explained, “[i]f defendant here, a 22-year-old man,

had engaged in voluntary sexual intercourse with a 16-year-old girl, instead of oral

copulation, he would have been guilty of violating section 261.5, subdivision (c),

but he would not face mandatory sex offender registration.” (Id. at p. 1195.)

To assess Hofsheier’s equal protection claim, we first asked whether he was

similarly situated to a class of people the Legislature has not subjected to


5

The Hofsheier court used “voluntary” in the restricted sense of willing

participation without aggravating circumstances such as the use of force or duress
or commission of the act while the victim is unconscious or intoxicated.
(Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2.) I will follow that usage here as
well.

11



mandatory registration, those convicted of unlawful sexual intercourse under

section 261.5. (Hofsheier, supra, 37 Cal.4th at p. 1199.) Although his conviction

was for unlawful oral copulation, we held that the likeness of the sexual acts

situated the defendant similarly to a person who committed unlawful sexual

intercourse. “The only difference” between the defendant’s offense, which

required registration, and unlawful sexual intercourse, which did not, was “the

nature of the sexual act.” (Id. at p. 1200.) As the majority opinion leaves this

aspect of Hofsheier undisturbed (maj. opn., ante, at p. 13), I also do not dwell on it

here.

In the second part of our analysis in Hofsheier, we evaluated possible

grounds for the Legislature’s distinction, as to sex offender registration, between

the offenses of voluntary oral copulation with a minor and unlawful sexual

intercourse with a minor the same age. Finding no rational basis for the difference

in treatment, we held section 290’s registration mandate unconstitutional as to

those convicted, under section 288a, subdivision (b)(1), of voluntary oral

copulation with minors 16 to 17 years old. (Hofsheier, supra, 37 Cal.4th at

pp. 1201–1207.) Because the defendant remained subject to discretionary

registration, we remanded for a determination by the trial court on that issue. (Id.

at pp. 1208–1209.)

Recognizing the Legislature’s broad discretion in forming criminal justice

policy, this court generally has applied a deferential rational-relationship test —

whether the challenged classification bears a rational relationship to a legitimate

state purpose — to statutory distinctions in the consequences of different offenses.

(People v. Turnage (202) 55 Cal.4th 62, 74; People v. Wilkinson (2004) 33 Cal.4th

821, 837–838.) We adhered to that approach in Hofsheier, framing the issue as

“whether there is a rational basis for the statutory classification requiring lifetime

registration as a sex offender by a person, such as defendant, convicted of

12



voluntary oral copulation with a 16-year-old girl but not of a person convicted of

voluntary sexual intercourse with a minor of that age.” (Hofsheier, supra, 37

Cal.4th at p. 1201.)

Elucidating the scrutiny involved, we repeated (Hofsheier, supra, 37

Cal.4th at pp. 1200–1201) the oft-quoted formula that legislation subject to

rational basis scrutiny “must be upheld against equal protection challenge if there

is any reasonably conceivable state of facts that could provide a rational basis for

the classification.” (FCC. v. Beach Communications, Inc. (1993) 508 U.S. 307,

313; see Kasler v. Lockyer (2000) 23 Cal.4th 472, 482; Warden v. State Bar

(1999) 21 Cal.4th 628, 644.) At the same time, we highlighted the respects in

which rational basis review, deferential as it is, nevertheless requires real scrutiny

of the relationship between a classification and the possible legislative goals. We

have described the necessary inquiry into that relationship as a serious and genuine

one, in which the court seeks plausible reasons for the classification, resting on a

reasonably conceivable factual basis. (Hofsheier, supra, 37 Cal.4th at p. 1201; see

Warden v. State Bar, supra, at pp. 647–648.) The statutory purpose by which the

classification is justified must be realistically conceivable — the reviewing court

does not “ ‘ “invent[ ] fictitious purposes that could not have been within the

contemplation of the Legislature . . . .” ’ ” (Hofsheier, supra, at p. 1201.) And

while the Legislature may rationally address a problem “ ‘in less than

comprehensive fashion by “striking the evil where it is felt most” [citation], its

decision as to where to “strike” must have a rational basis in light of the legislative

objectives.’ ” (Id. at p. 1206, fn. 8, quoting Hays v. Wood (1979) 25 Cal.3d 772,

791.)

The sex offender registration scheme is intended to ensure that such

offenders, considered likely to recommit sex offenses, are available for police

surveillance and, in the scheme’s modern form, “to notify members of the public

13



of the existence and location of sex offenders so they can take protective

measures.” (Hofsheier, supra, 37 Cal.4th at p. 1196.) In briefing Hofsheier, the

People asserted two possible grounds for section 290’s distinction between adults

convicted of voluntary oral copulation with 16- or 17-year-old minors, who are

subject to mandatory registration, and adults convicted of voluntary sexual

intercourse with minors of that age, who are not subject to mandatory registration.

First, the People argued the distinction could rest on a legislative belief that the

former class (those convicted under § 288a) are more likely to repeat their

offenses than the latter (those convicted under § 261.5). (Hofsheier, supra, at

p. 1203.) Second, the People asserted the legislative distinction could be justified

by the possibility of pregnancy resulting from sexual intercourse, “because

requiring the father to register as a sex criminal might stigmatize both the mother

and the child, and might harm the father’s ability to support his child.” (Id. at

p. 1205.) These are the same rationales posited by the majority today. (Maj. opn.,

ante, at pp. 14–19.)

Hofsheier’s emphasis on a realistic assessment of the possible legislative

purposes carried forward to its discussion, under the rational relationship standard,

of these asserted bases. The court observed that the individual variation in the risk

of recidivism and the possibility of pregnancy were rational grounds for providing

judicial discretion in registration generally, but not for providing such discretion

selectively only as to those convicted under section 261.5, since persons convicted

under section 288a also varied in their risk of recidivism and also may have had

sexual intercourse with the victim, the two sex acts not being exclusive of one

another. (Hofsheier, supra, 37 Cal.4th at pp. 1204–1205.) More fundamentally,

the Hofsheier court found the People’s asserted grounds for the statutory

distinction to be “at odds” with the history and structure of California’s sex crimes

laws. (Id. at p. 1206.) Viewed realistically in light of those laws’ historical

14



development, section 290’s unfavorable treatment of oral copulation in

comparison to sexual intercourse appears not as a rational distinction based on

currently operative legislative views of the two offender classes, but rather “a

historical atavism dating back to a law repealed over 30 years ago that treated all

oral copulation as criminal regardless of age or consent.” (Hofsheier, supra, at

p. 1206.)

To understand Hofsheier’s reasoning on this point, and the limits that

reasoning places on the decision’s application, it helps to review the history

referred to in more detail.

Our sex offender registration statute (§ 290) dates from 1947; then as now,

the statute listed oral copulation (§ 288a) and sodomy (§ 286), but not sexual

intercourse with a minor (then punished under § 261, former subd. 1), as

registerable offenses. (Stats. 1947, ch. 1124, § 1, p. 2562.) Section 288a,

however, was then a very different statute than it is now. Bearing the notation

“Sex perversions,” the enactment punished as a felony all oral copulation, even

that occurring between consenting adults. (Stats. 1921, ch. 848, § 2, p. 1633.)

Similarly, California’s sodomy statute (former § 286), which dates to the 1872

Penal Code, punished anal sex as a felony, even between consenting adults. (See

Stats. 1921, ch. 90, § 1, p. 87 [referring to the offense as “the infamous crime

against nature”].) California was not exceptional in prohibiting acts of

nonprocreative sex; writing in 1950, a legislative subcommittee studying sex

crimes summarized American law thusly: “The law approves and recognizes only

one method of sexual intercourse [¶] That method is the relationship between the

sex organ of a man and the sex organ of a woman. Other practices of sexual

gratification such as connections per anum or per os (mouth) are forbidden.”

(Assem. Interim Com. on Judicial System & Judicial Process, Preliminary Report

15



of the Subcom. on Sex Crimes (Mar. 8, 1950) Assem. J. (1950 1st Ex. Sess.) pp.

29, 45.)

The version of section 288a added in 1921 replaced a previous version

enacted in 1915 (also to address “sex perversions”), which criminalized “[t]he acts

technically known as fellatio and cunnilingus.” (Stats. 1915, ch. 586, § 1, p. 1022;

see In re Lockett (1919) 179 Cal. 581, 583–591 [holding this statute

unconstitutional because the offense was defined by Latin terms having no definite

meaning in the English language].) The 1915 law’s enactment appears to have

been spurred by a scandal involving arrests of homosexuals in Los Angeles and

Long Beach. (See Scott, Lust, Language, and Legislation: Long Beach,

California 1914 (2010) 19 Ex Post Facto 93, 99–101.) In December of 1914, the

Sacramento Bee published a series of articles lamenting the lack of an adequate

criminal sanction for this “Vilest of All Offenses,” a “debasing immorality, of

practices between man and man, and man and boy” revealed by the Southern

California scandals. (Campbell, Legislature Should Enact Some Law to Punish

This Most Debasing Practice, Sacramento Bee (Dec. 21, 1914) p. 1; see Campbell,

Wide Spread of Debasing Practices Make Punitive Legislation A Necessity,

Sacramento Bee (Dec. 22, 1914) p. 1; Campbell, Bee’s Publicity Light on Great

Vice of Day Shows Need of Punitive Measures, Sacramento Bee (Dec. 24, 1914)

p. 1.) The bill to make oral copulation a felony (Assem. Bill No. 219 (1915 Reg.

Sess.)) was introduced on January 14, 1915, passed by both houses and signed by

the Governor on June 1 of that year. The Bee promptly took credit for uncovering

the “ ‘Sexual Perversions’ ” that the law was designed to suppress. (Scott, Lust,

Language, and Legislation: Long Beach, California 1914, supra, 19 Ex Post

Facto at p. 101, fn. 43.)

Sections 288a and 286 did not differentiate between adults of the same sex

and those of opposite sexes in prohibiting the specified voluntary sex acts. The

16



statutes, however, were enforced largely against homosexual acts. “One reason

given for this significant disparity in enforcement is that deviant heterosexual

conduct is not viewed with the same distaste as is homosexual conduct by the

public.” (Comment, Sexual Freedom For Consenting Adults — Why Not? (1971)

2 Pac. L.J. 206, 214, fn. 49.) Enforcement of the oral copulation and sodomy laws

being nearly impossible as to voluntary acts between adults committed in private

“[u]nless the parties are extremely careless” (id., at p. 214), enforcement against

consenting adults occurred mainly through surveillance in public places, notably

bars, bathhouses and public restrooms frequented by homosexuals. (Ibid.; see

Gallo et al., Project, The Consenting Adult Homosexual and the Law: An

Empirical Study of Enforcement and Administration in Los Angeles County (1966)

13 UCLA L.Rev. 643, 689 (hereafter The Consenting Adult Homosexual).) Thus

it could be said, in the era before liberalization of the laws regarding consenting

adults, that “the meaning of deviant sexual conduct in society is synonymous to

homosexual conduct.” (Comment, Sexual Freedom For Consenting Adults —

Why Not?, supra, 2 Pac. L.J. at p. 214.)

The use of sections 288a and 286 to punish “deviant” sex acts between

consenting adults thus “sen[t] a clear message: vaginal intercourse is the only

morally acceptable form of penetrative sexual behavior. . . . Deeply intimate

sexual acts are only available to straight people. Those straight people who

engage in ‘normal’ sex can meet our moral strictures, as embodied in our laws, but

homosexuals never can.” (Strader, Lawrence’s Criminal Law, supra, 16 Berkeley

J. Crim. L. at p. 77.) Certainly, some members of the California judiciary

understood the laws this way: a Court of Appeal panel, rejecting constitutional

challenges to section 288a, observed the defendant’s arguments were those of “the

congenital homosexual to whom that is natural which the vast majority of the

17



population deems unnatural.” (People v. Baldwin (1974) 37 Cal.App.3d 385,

395.)

The requirement for registration as a sex offender played a significant role

in enforcement of sections 288a and 286 against gay people. The 1966 UCLA

Law Review study of enforcement practices found that police officers, when they

had a choice of statutes under which to arrest gay men, consciously chose those

offenses requiring registration, including sections 288a and 286, the “predominant

view” being that “homosexual offenders should be registered.” (The Consenting

Adult Homosexual, supra, 13 UCLA L.Rev. at p. 737.) In interviews, officials

gave various reasons for wanting to register homosexuals, including the beliefs

that they were prone to commit forcible sex offenses or offenses against children

and that requiring registration would discourage homosexual conduct. (Id., at

pp. 737–738.)

The 1975 bill amending sections 288a and 286 to eliminate criminal

penalties for the specified acts between consenting adults (Assem. Bill No. 489

(1975–1976 Reg. Sess.)) was understood by the public, the bill’s supporters and its

opponents as an act to legalize homosexual conduct. The bill was informally

dubbed the “homosexuals’ bill of rights.” (Gillam, Assembly OK’s Homosexuals’

Bill of Rights, L.A. Times (Mar. 7, 1975) p. A1.) Members of the Assembly spoke

in favor of the bill on the grounds both that it would prevent unnecessary

government interference with sexual privacy generally and “end the harassment of

homosexuals,” and against it on the ground that “oral copulation and sodomy are

unnatural acts” and the bill would thus “sanction unnatural relationships.”

(Assembly Passes Bill to Decriminalize Sex Acts, L.A. Daily J. (Mar. 10, 1975)

p. 3.) Outside opponents warned that under the bill “[h]omosexual activities and

orgies in homes or apartments next to yours would be completely legal.”

(Woman’s Christian Temperance Union of Southern Cal., Analysis of AB-489

18



(Apr. 1975) p. 2.) Supporters, while observing that the practices to be legalized

were not limited to homosexuals, applauded the bill for removing that group’s

“ ‘outlaw’ status” and as providing recognition that love and tolerance for our

“homosexual neighbor[s]” is the legal position most consistent with contemporary

Christian belief. (National Organization for Women, Los Angeles Chapter, letter

to senators (Mar. 27, 1975) p. 3.)6

In contrast to the criminalization of oral sex and sodomy as perversions

associated with homosexuality, heterosexual intercourse with pubescent minors,

even when it violates the law, has often been viewed as proceeding from morally

and psychologically normal impulses. In part, this reflects the mainstream

commonality of adolescent heterosexual experience. “Historically devised to

protect the innocence of youth, statutory rape laws continue in force today, even

though most Americans admit to having their first sexual experience as teenagers

. . . .” (Carpenter, The Constitutionality of Strict Liability in Sex Offender

Registration Laws (2006) 86 B.U. L.Rev. 295, 309, fn. omitted.) Heterosexual

intercourse with pubescent minors generally has not carried the labels of

“unnatural,” “depraved” and “perverted” applied to the sexual acts historically

associated with homosexuality.

Indeed, as the majority notes (maj. opn., ante, at p. 17), when the

prohibition on sexual intercourse with underage girls was removed from

California’s rape statute (§ 261) and designated as the new offense of “unlawful

sexual intercourse” (§ 261.5), the principal goal was to eliminate the social stigma


6

The materials cited in this paragraph are found in the legislative committee

and caucus files retained from passage of the 1975 bill. They are cited here not to
demonstrate the legislative intent in enacting the measure, which is not in doubt,
but to illuminate the general understanding, inside and outside the Legislature, of
the bill’s social effect.

19



of labeling offenders “rapists.” While one bill analysis ties this goal specifically to

enabling offenders to support a child conceived by the offense (Bradford, State

Bar of Cal., analysis of Sen. Bill No. 497 (1970 Reg. Sess.), undated, p. 1 [analysis

of State Bar’s legislative representative, submitted to Assem. Com. on Criminal

Procedure]), other legislative history refers more generally to “eliminat[ing] the

social stigma attached to the term rapist” (Sen. Com. on Judiciary, Bill Analysis

Work Sheet for Sen. Bill No. 497 (1970 Reg. Sess.) and helping offenders obtain

employment by “eliminat[ing] the social stigma which arises when the distinction

between forcible rape and intercourse with a consenting female minor is not

made” (Sen. Beilenson, sponsor of Sen. Bill No. 497 (1970 Reg. Sess.), letter to

Governor, Aug. 26, 1970).

What is clear is that even in 1970, when all oral copulation was still banned

as a sexual perversion, sexual intercourse with a minor was deemed unworthy of

social stigma. The difference in attitude towards oral copulation and sexual

intercourse reflected in section 290’s differential registration requirement is thus a

continuation of historical attitudes: while sexual intercourse with minors was an

offense, the act itself was a normal one not considered deserving of any social

stigma; oral copulation, in contrast, was an unnatural act typically engaged in by

homosexuals.

More recently, the decriminalization of adult consensual sex acts and the

enactment of section 261.5, relating to adult sexual intercourse with a minor, have

led to greater consistency in our statutes on voluntary sex acts with minors. For

example, each of the principal statutes now provides greater punishment for

nonforcible acts with younger minors and for when there is a greater age gap

between the participants. (See §§ 261.5, subds. (b), (c), (d), 286, subds. (b)(1),

(2), (c)(1), 288a, subds. (b)(1), (2), (c)(1).)

20



One significant difference in treatment nonetheless persists from the period

before liberalization: those convicted of violating sections 288a and 286 are

automatically required by section 290 to register as sex offenders for their entire

lives; those convicted of violating section 261.5 are not. Although the premise

that acts outlawed in sections 288a and 286 are unnatural perversions has been

discarded, fatally undermining the former “predominant view . . . that homosexual

offenders should be registered” (The Consenting Adult Homosexual, supra, 13

UCLA L.Rev. at p. 737), the mandatory registration requirement applicable to

these particular sex acts remains on the books, a vestige of bygone social and legal

discrimination. It is in this sense that we have termed the distinction drawn in

section 290 between unlawful sexual intercourse and oral copulation “a historical

atavism.” (Hofsheier, supra, 37 Cal.4th at p. 1206.)

Even under deferential rational basis review, justifications for legal

discrimination “must find some footing in the realities of the subject addressed by

the legislation.” (Heller v. Doe (1993) 509 U.S. 312, 321; accord, People v.

Turnage, supra, 55 Cal.4th at p. 75 [recognizing that “the realities of the subject

matter cannot be completely ignored” under rational basis review].) The statutory

distinction must be rationally related to a “ ‘realistically conceivable’ ” legislative

purpose; the court is not to “invent[] fictitious purposes that could not have been

within the contemplation of the Legislature.” (Fein, supra, 38 Cal.3d at p. 163;

accord, Warden v. State Bar, supra, 21 Cal.4th at p. 648.) In rejecting the

People’s recidivism and pregnancy rationales for differentiating between sections

261.5 and 288a, the Hofsheier court did no more than analyze section 290’s

distinction in mandatory registration in light of the historical realities of California

sex crime law and decline to invent purposes that, from the historical record, the

Legislature could not have contemplated. (Fein, supra, at p. 163; see People v.

Sage (1980) 26 Cal.3d 498, 507–508 [as proposed grounds for distinction in

21



presentence conduct credits apply equally to both classes compared, the distinction

“was not based on the grounds proposed” and fails rational basis test]; Brown v.

Merlo (1973) 8 Cal.3d 855, 865, fn. 7 [“Although by straining our imagination we

could possibly derive a theoretically ‘conceivable,’ but totally unrealistic, state

purpose that might support this classification scheme, we do not believe our

constitutional adjudicatory function should be governed by such a highly

fictitional approach to statutory purpose.”].)

Careful attention to whether a posited reason is plausible and realistic is

particularly appropriate here given that our registration law’s differential treatment

of oral copulation and sexual intercourse has origins in irrational homophobia,

continues to impact gay people in a differentially harsh way (as those in a same-

sex relationship cannot plead to the discretionary registration offense of unlawful

sexual intercourse) and involves severe restrictions on liberty and privacy. (See

People v. Barrett (2012) 54 Cal.4th 1081, 1148 (conc. & dis. opn. of Liu, J.)

[statutory discrimination may rest on irrational prejudice, and demand less-

superficial scrutiny despite lack of present animus, where legislation “arise[s]

from good faith adherence to unexamined assumptions that reflect historic or

prevailing attitudes”]; cf. Hunter v. Underwood (1985) 471 U.S. 222, 233 [Ala.

law disenfranchising certain ex-convicts is racially discriminatory, regardless of

any modern justification that could be posed, where “its original enactment was

motivated by a desire to discriminate against blacks on account of race and the

section continues to this day to have that effect.”].) We should hesitate to approve

a statutory discrimination that may still bear the taint of irrational prejudice against

homosexuals. (See In re Marriage Cases (2008) 43 Cal.4th 757, 841 [additional

scrutiny of classification warranted in part by history of hostility and stigma

experienced by homosexuals as a group].)

22



With the shift in attitudes toward oral sex and homosexuality represented

by the 1975 decriminalization of consensual adult conduct, a reevaluation of

section 288a’s listing in section 290 would have been appropriate, i.e., should all

those convicted of oral sex with minors still be required to register, when those

convicted of sexual intercourse with minors the same age are not required to do

so? As far as revealed in Hofsheier or discovered in my research in this case,

however, no such reevaluation occurred. Instead, the blanket registration

requirement for section 288a offenders lay undisturbed in section 290, a relic of

past homophobia and discarded ideas of sexual regulation. Hofsheier correctly

held this does not constitute a rational basis for the statutory discrimination against

section 288a offenders.

As rational bases for the statutory discrimination at issue, the majority

posits the possibility oral copulation offenders are viewed as more likely to repeat

their offenses than unlawful intercourse offenders and, particularly, the potential

for pregnancy resulting from sexual intercourse but not from oral copulation.

(Maj. opn., ante, at pp. 14–19.)

With regard to differential recidivism, the legislative view appears to be at

odds with that postulated by the majority. In statutory findings quoted by the

majority, the Legislature found that many men committing unlawful sexual

intercourse with minors are “ ‘repeat offenders’ ” who “ ‘prey upon minor girls.’ ”

(Maj. opn., ante, at pp. 17-18, quoting Stats. 1996, ch. 789, § 2, p. 4161.) Thus,

contrary to the majority’s supposition, the Legislature does not appear to rely on a

low risk of recidivism to exempt section 261.5 offenders from mandatory

registration. Rather, as shown above, the historical record shows oral copulation

was disfavored in comparison with sexual intercourse because the former act was

regarded as a perversion engaged in by homosexuals. The majority’s hypothesis is

23



a “fictitious purpose[]” (Fein, supra, 38 Cal.3d at p. 163) at odds with the history

of our sex crimes statutes.

The majority’s claim that the Legislature omitted section 261.5 from the list

of mandatory registration offenses out of concern for the well-being of children

conceived through unlawful sexual intercourse with minors finds some support in

the staff analysis of a 1997 bill proposing to add section 261.5 to the mandatory

list. The analysis outlines, in a set of rhetorical questions, several reasons for

maintaining judicial discretion in ordering registration, one of which relates to

concern over parental support for children of unlawful intercourse: “How many

persons convicted of statutory rape are recidivists? [¶] Will more cases go to trial

instead of settled if a registration requirement is mandated? [¶] Out of all the

statutory rapes that occur, how many victims would report the sex as

nonconsensual? [¶] How many teen[] mothers would want the father of their

child to plead guilty of statutory rape and be subject to a life time registration

requirement?” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1303

(1997–1998 Reg. Sess.) as amended Apr. 16, 1997, p. 4, capitalization omitted.)

Though the considerations outlined are broader than a concern over parental

support (whether economic or otherwise), that is certainly included.

Of greater importance for our purposes is that the 1997 bill to which this

analysis relates merely proposed to list section 261.5 in section 290; it did not

address the treatment of section 288a offenders. The cited history helps to explain

why the Legislature has not subjected all section 261.5 offenders to mandatory

registration, but it does not support the claim that the same considerations require

a different treatment of all section 288a offenders as predators deserving of

mandatory lifetime registration. Indeed, most of the bill analysis’s reasons for

allowing discretion in sex offender registration apply equally to those committing

nonforcible oral copulation with a minor: such prohibited acts sometimes occur

24



voluntarily within mutual intimate relationships, a context that does not pose a

high risk of recidivism, and allowing discretion in such cases would make

defendants and prosecutors more likely to reach plea agreements in appropriate

cases. The bill analysis, discussing a proposal affecting only section 261.5

offenders, does not reflect a comparative determination that such offenders are

less deserving of mandatory registration than those convicted of violating section

288a.

Historically, again, oral copulation was legally disfavored compared to

intercourse with minors not because it allowed no possibility of pregnancy — a

fact that would seem, if anything, comparatively to mitigate the crime — but

because it was regarded as unnatural and perverted and was associated with

homosexuals. To treat the distinction in section 290 as reflecting a contemporary

judgment about the need to register those who engage in oral copulation with

minors, but not those who engage in sexual intercourse, would be to indulge in the

kind of “highly fictitional” justification we abjured in Brown v. Merlo, supra, 8

Cal.3d at page 866, footnote 7.

The Legislature has never made an affirmative decision to impose

mandatory registration differentially on those convicted of voluntary oral sex with

minors. From the registration scheme’s beginning, registration has been

mandatory for all those convicted of “sex perversions” under section 288a,

regardless of the participants’ ages or the voluntary nature of the act, in accord

with the belief that “homosexual offenders should be registered.” (The Consenting

Adult Homosexual, supra, 13 UCLA L.Rev. at p. 737). Realistically assessed, the

postliberalization distinction as to acts with minors is not the product of a

legislative judgment aimed at acts with minors specifically, but a remnant of the

blanket disapproval of oral copulation prevailing before decriminalization.

25



The majority argues Hofsheier, supra, 37 Cal.4th 1185, presented the

Legislature with a “ ‘Hobson’s choice’ ” in that the only way mandatory

registration could be maintained for oral copulation, under our decision, would be

by requiring mandatory registration for unlawful sexual intercourse as well, which

the Legislature has reasons for declining to do. (Maj. opn., ante, at p. 10.) Not so.

If the Legislature continues to believe all section 288a offenders are so dangerous

as to require mandatory lifetime registration as sex offenders, it can reenact

section 290 with findings to that effect. Such findings would directly rebut

Hofsheier’s conclusion the listing of section 288a but not section 261.5 as a

mandatory registration offense is an anachronistic holdover from the

preliberalization period.7

The majority complains that lower courts have extended Hofsheier beyond

the particular set of offenses it addressed, thus “denying significant effect to

section 290.” (Maj. opn., ante, at p. 8.) The majority omits to mention the

numerous appellate decisions rejecting equal protection claims based on


7

The 2007 enactment of section 290.019, cited in the majority opinion at

page 14, does not reflect a contemporary legislative reevaluation of sex offender
registration for those committing violations of sections 286 and 288a against
minors. The provisions of section 290.019, allowing section 286 and section 288a
offenders whose crimes were committed with a consenting adult prior to 1976 to
seek relief from their registration requirements, were actually enacted a decade
earlier as a subdivision of section 290. (Stats. 1997, ch. 821, § 3, pp. 5698–5699
[adding subd. (a)(2)(F) to § 290].) That legislation was intended to “address an
unknown number of persons required to register for acts which once were criminal
— specified sexual activities between consenting adults — which no longer are
criminal under current law.” (Sen. Com. on Public Safety, Analysis of Assem.
Bill No. 290 (1997–1998 Reg. Sess.) as amended May 1, 1997, p. 5.) The 1997
legislative decision to provide a means of registration relief for what was by then
noncriminal conduct with adults does not reflect a decision on the comparative
merits of mandatory registration for oral copulation with minors and unlawful
sexual intercourse with minors.

26



Hofsheier, either because the two classes of offenders were not deemed similarly

situated or because the court discerned rational grounds for the legislative

distinction in treatment.8 When Hofsheier is understood as resting crucially on the

history of section 288a, moreover, its potential application to other statutes is quite

limited. For a high court’s constitutional decision to affect some additional cases

is hardly unusual and provides no grounds for overruling it; the effect in this

instance has been well short of a revolution in equal protection law.

III. Conclusion

Our decision in Hofsheier, supra, 37 Cal.4th 1185, was a relatively narrow

one, applying well-established equal protection principles to the particular history

and structure of sections 261.5, 288a, and 290. We concluded the differential

requirement of mandatory sex offender registration for those convicted of oral

copulation with a 16 or 17 year old, but not for those convicted of unlawful sexual

intercourse with a minor the same age, was a historical atavism without rational

relation to a legitimate state purpose. In the discussion above, I have revisited the


8

A few of the many possible examples: People v. Doyle (2013) 220

Cal.App.4th 1251, 1264 (“DUI offenders with prior DUI manslaughter convictions
are not similarly situated with DUI offenders who have prior convictions other
than for DUI manslaughter.”); Shoemaker v. Harris (2013) 214 Cal.App.4th 1210,
1226–1231 (Legislature could rationally require registration for possession of
child pornography despite omission of arguably more culpable offenses); People
v. Brandao
(2012) 203 Cal.App.4th 436, 445–448 (defendant convicted of
annoying or molesting a child not similarly situated with one convicted of
voluntary sex acts with a minor); People v. Miranda (2011) 199 Cal.App.4th 1403,
1427–1429 (same as to defendant convicted of sex acts with a victim incapable of
giving consent due to mental disability); People v. Honan (2010) 186 Cal.App.4th
175, 180–183 (defendant convicted of indecent exposure not similarly situated, for
registration purposes, with one convicted of a lewd act in public); People v. Valdez
(2009) 174 Cal.App.4th 1528, 1531–1532 (Legislature could rationally bar
probation for forcible sexual penetration with a foreign object but not for forcible
spousal rape).

27



rationale for that conclusion, explaining in greater detail the specific statutory

history on which it rests and, in the process, clarifying its limitations. I have

further considered events since Hofsheier’s decision, finding no widespread

confusion or difficulty of application, no criticism (but some praise) of our

decision from the legal academy or the courts of other jurisdictions, and social

effects that appear beneficial rather than adverse. As there are no compelling

grounds for concluding Hofsheier is both wrong and mischievous, we should not

overrule it.

In requiring that section 288a offenders be treated the same as section 261.5

offenders with regard to sex offender registration, Hofsheier mitigated the

discriminatory effects of our registration scheme as it had survived since

preliberalization days. Because section 261.5 is omitted from the list of

mandatory registration offenses in section 290, the prosecutor in a case involving a

perpetrator’s sexual relationship with a minor of the opposite sex commonly can

choose to allow judicial discretion in registration by charging only a violation of

section 261.5 or by accepting a negotiated plea to that offense alone when the

circumstances of the case do not indicate predatory behavior or other grounds for

fearing repetition. Before our decision in Hofsheier, no comparable option existed

for a case involving a relationship with a minor of the same sex. Now, by

overruling Hofsheier, the majority reinstitutes a scheme that had a

disproportionately adverse effect on gay and lesbian youth and unnecessarily

saddled nonpredatory offenders of either sexual orientation with the stigma and

restricted liberties attendant on sex offender registration.

28



Adherence to stare decisis is not a rigid command, but in this instance it is

the wiser course; Hofsheier should not be overruled. For these reasons, I

respectfully dissent.













WERDEGAR, J.

I CONCUR:


LIU, J.

29



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Johnson v. California Department of Justice
__________________________________________________________________________________

Unpublished Opinion
XXX NP opn. filed 1/3/13 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S209167
Date Filed: January 29, 2015
__________________________________________________________________________________

Court:
Superior
County: San Bernardino
Judge: David Cohn

__________________________________________________________________________________

Counsel:

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.




1







Counsel who argued in Supreme Court (not intended for publication with opinion):

Marilee Marshall
Marilee Marshall & Associates
523 W. Sixth Street, Suite 1109
Los Angeles, CA 90014
(213) 489-7715

Brent J. Schultze
Deputy District Attorney
412 W. Hospitality Lane, First Floor
San Bernardino, CA 92415-0042
(909) 891-3302

2

Do the equal protection principles of People v. Hofsheier (2006) 37 Cal.4th 1185 bar mandatory sex offender registration for a defendant convicted of oral copulation between a "person over the age of 21 years" and a "person who is under 16 years of age" (Pen. Code, § 288a, subd. (b)(2))?

Opinion Information
Date:Citation:Docket Number:
Thu, 01/29/201560 Cal. 4th 871, 341 P.3d 1075, 183 Cal. Rptr. 3d 96, 15 Cal. Daily Op. Serv. 1028, 2015 Daily Journal D.A.R. 1234S209167

Opinion Authors
OpinionJustice Marvin R. Baxter
DissentJustice Kathryn M. Werdegar

Apr 9, 2015
Annotated by Michael Mestitz

FACTS

In 1990, twenty-seven year old James Richard Johnson was charged with five counts of various sexual offenses under the California Penal Code relating to his alleged sexual conduct with a single underage girl. The criminal complaint listed two counts of lewd acts upon a child under 14 years of age (Cal. Penal Code § 288(a)), one count of nonforcible sodomy with a minor under 16 years of age (Cal. Penal Code § 288(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 (Cal. Penal Code § 288(b)(2)). Johnson pleaded guilty to a single count of nonforcible oral copulation under § 288(a). As a result, he was required to register as a sex offender for life under California Penal Code § 290, which imposes mandatory sex offender registration for individuals convicted of a specific list of crimes, and served a two-year prison sentence.

In 2006, the California Supreme Court's decision in People v. Hofsheier (2006) 37 Cal.4th 1185 found that § 290 violated equal protection principles in requiring mandatory sex offender registration for individuals convicted under California Penal Code § 288(b)(1), a different subdivision of the section under which Johnson pleaded guilty.

PROCEDURAL HISTORY

In 2011, Johnson filed a petition for a writ of mandate based on the Hofsheier decision, seeking removal from the sex offender registry and relief from future registration obligations. Although the California Court of Appeal was split on the extent of the Hofsheier holding and its application to various offenses, the superior court denied the petition, citing People v. Manchel (2008) 163 Cal. App. 4th 1108, which rejected a Hofsheier claim from a defendant convicted under § 288a(b)(2), the same offense to which Johnson pleaded guilty.

The Court of Appeal reversed the superior court, siding with other appellate decisions that opposed Manchel. In doing so, it determined that § 290 violated Johnson's equal protection rights. Applying Hofsheier in this way makes sex offender registration discretionary, rather than mandatory, so the Court of Appeal remanded Johnson's case back to the superior court to determine whether he should be required to register.

The California Supreme Court granted review on the case to decide if Hofsheier's equal protection analysis applied to Johnson.

ISSUES

The court considered whether Hofsheier's holding entitled Johnson to relief. It also requested supplemental briefing from the parties regarding whether Hofsheier should be overruled and, if so, whether that decision should be retroactive.

HOLDING

The court expressly overruled People v. Hofsheier (2006) 37 Cal.4th 1185 and disapproved of Court of Appeal decisions that applied its rationale to sex offenses involving minors, calling Hofsheier's equal protection analysis "demonstrably wrong." It gave its opinion retroactive effect, though it observed that because Johnson plead guilty in 1990, he had clearly not acted in any reliance on Hofsheier. The court reversed the decision of the Court of Appeal and remanded the case for further proceedings.

ANALYSIS

In People v. Hofsheier (2006) 37 Cal.4th 1185, the court determined that the statutory disparity in California's two-tried scheme of sex offender registration in California Penal Code § 290 violated state and federal equal protection. Section 290, enacted at part of the Sex Offender Registration Act, lists particular sex offenses that require mandatory sex offender registration attendant to conviction or a guilty plea. The Penal Code, however, permits trial courts to retain discretion over whether or not offenders convicted of non-listed offenses must register. In Hofsheier, the defendant was convicted of nonforcible oral copulation with a person of 16 years of age (Cal. Penal Code § 288(b)(1)), which is a mandatory-registration offense. He challenged the requirement to register, pointing out that sexual intercourse with a minor of the same age was a discretionary-registration offense (Cal. Penal Code § 261.5). The court agreed with him, determining that there was no rational basis for subjecting defendants convicted of unlawful intercourse and unlawful oral copulation to different registration provisions, and calling the disparity the result of "a historical atavism" dating back to when law "treated all oral copulation as criminal regardless of age or consent." Hofsheier, 27 Cal. 4th at 1206.

This case reverses the court's position, overruling Hofsheier and its progeny. The majority of the court determines that it erred in 2006, and, upon reconsidering the rational basis question, concludes that the disparity between the mandatory registration provision in § 290 and the discretionary registration for unlawful sexual intercourse under § 261.5 is based on the fact that "among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood." The court concludes that this difference and the attendant consequences that flow from teen pregnancy and the support of children conceived in those circumstances "provide more than just a plausible basis" for the legislative design.

The court describes a few bases for its reconsidered holding:

First, Hofsheier posited that the disparity existed only because, after after consensual sexual conduct between adults was decriminalized in 1975, nonforcible oral copulation remained in § 290 only as a holdover, and that the legislature never made the affirmative decision to subject defendants in those cases to mandatory registration. The court here finds that this explanation is not persuasive. It details "numerous amendments and reenactments" of § 290 over the years, none of which included the removal of § 288(a) crimes from the list of mandatory-registration offenses. In addition, it points to the enactment of California Penal Code § 290.019 the year after Hofsheier was decided as evidence that the legislature made a policy decision that relief from § 290's mandatory-registration scheme was only for consenting sexual activity between two adults, but not between adults and minors. The 2013-2014 legislative session also saw the legislature consider and reject a bill that would have standardized the disparity.

Second, the Hofsheier court did not see a heightened risk of reoffense in voluntary oral copulation cases relative to voluntary sexual intercourse cases. Here, the court observes that "[t]here is, in fact, much more than a speculative possibility that sexual predators are more successful in manipulating minors to engage in oral copulation, as opposed to sexual intercourse." Because one of the underlying rationales of sex offender registration is to surveil offenders and deter recidivism, the court holds that the legislature could "plausibly assume" that offenders engaging in oral copulation should be subject to mandatory registration.

Third, the court disagrees with Hofsheier's conclusion that "the nature of the sexual act" is the only difference between nonforcible oral copulation and nonforcible intercourse, observing that intercourse is "unique" in the potential for pregnancy and parenthood. The majority opinion examines the legislative history of § 261.5 and determines that it reflects a desire to eliminate "the social stigma associated with the rape label" when intercourse was between two consenting adults, "so that offenders could more readily obtain employment and support children conceived as a result of such intercourse." It also observes that the legislature has rejected measures that would make registration mandatory in nonforcible intercourse cases.

Given the legislature's "considerable latitude in defining and setting the consequences of criminal offenses" and the low bar of the rational basis test, the court determines that Hofsheier's equal protection analysis is no longer good law. It overrules Hofsheier and the Court of Appeal cases that extended that decision, and determines that there is no reason that the holding should not be retroactive, thereby rejecting Johnson's equal protection claim and remanding the case back to the Court of Appeal.

Justice Werdegar wrote a dissenting opinion, in which Justice Liu concurs, arguing that Hofsheier should not be overruled. The dissent asserts that Hofsheier was correct in considering the mandatory registration requirement for oral copulation an "anachronistic holdover from a period . . . when oral sex and sodomy were regarded as abhorrent sexual perversions closely associated with homosexuality and were therefore outlawed regardless of the participants' ages." Arguing that Hofsheier has not been the subject of wide criticism or created undue confusion for lower courts, the dissent asserts that the regular principles of stare decisis should stand, and that the majority's opinion will create substantial uncertainty. The dissent also undertakes an exhaustive review of the history of sex offender statutes, arguing that the history of the oral copulation charge and the registration disparity is inextricably connected with "past homophobia and discarded ideas of sexual regulation," which do not constitute a rational basis for discriminating against § 288(a) offenders.

TAGS
Sex Offender Registration, California Penal Code Section 290, California Penal Code Section 288a, California Penal Code Section 261.5, Equal Protection, Constitutional Law, Sex Offenders, Sentencing, Discretion, Discrimination, Sexual Intercourse, Oral Copulation, Stare Decisis, Rational Basis, Homosexuality, Pregnancy, Legislative History, Overruling, Dissent, Retroactivity, Minors