Supreme Court of California Justia
Citation 48 Cal. 4th 330, 226 P.3d 348, 106 Cal. Rptr. 3d 239

People v. Picklesimer

Filed 3/15/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S165680
v.
Ct.App. 3 C056385
ANDREW NELSON PICKLESIMER,
Trinity County
Defendant and Appellant.
Super. Ct. No. 92CR065

In People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier), we
concluded imposition of mandatory lifetime sex offender registration on
defendants convicted of violations of Penal Code section 288a, subdivision (b)(1)1
for voluntary oral copulation with a 16- or 17-year-old minor violated the state and
federal equal protection clauses. Our decision resulted in the creation of a class of
people, those convicted of violating section 288a, subdivision (b)(1) on or before
the date of our decision, who potentially might be entitled to relief from
mandatory lifetime registration but for whom the precise procedural method of
asserting such a claim for relief was uncertain. We resolve that uncertainty here.
We conclude that for those like defendant Andrew Nelson Picklesimer,
who are no longer in custody and whose appeals are final, claims for Hofsheier
relief — relief from mandatory lifetime sex offender registration based on equal

1
All further unlabeled statutory references are to the Penal Code.
1

protection — must be brought by way of a petition for writ of mandate in the trial
court. A freestanding postjudgment motion for Hofsheier relief, such as the one
Picklesimer filed, is not cognizable, as the trial court and Court of Appeal
correctly concluded.
A court may in its discretion treat such a postjudgment motion as a
mislabeled petition for writ of mandate. In this case, however, for us to do so is
not appropriate. This is because defendants who assert a claim for Hofsheier relief
and establish a right to relief from mandatory sex offender registration may still be
subject to discretionary registration under section 290.006, and the record before
us does not conclusively establish that Picklesimer is exempt from discretionary
registration and thus entitled to relief.
Accordingly, we affirm, without prejudice to Picklesimer‟s ability to file a
petition for writ of mandate in the trial court seeking Hofsheier relief.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Picklesimer pleaded guilty to violations of sections 261.5 (sexual
intercourse with a minor), 288a, subdivision (b)(1) (oral copulation with a minor),
and 289, subdivision (h) (sexual penetration of a minor) and was sentenced to four
years four months in prison. As an automatic consequence of the oral copulation
and sexual penetration convictions, Picklesimer was required to register as a sex
offender. (Former § 290, subd. (a)(2)(A), now § 290, subd. (c).) On appeal, the
judgment was affirmed. Picklesimer completed his sentence and was released
from custody.
In October 2006, after our decision in Hofsheier, Picklesimer filed a motion
in the trial court asking to be removed from the state sex offender registry and
relieved from his lifetime registration obligation. At a hearing on the motion, the
trial court ruled it lacked jurisdiction, noting Picklesimer had failed to identify any
2

authority that would permit the court to rule on such a freestanding motion.
Picklesimer appealed.
The Court of Appeal agreed that the trial court lacked jurisdiction.
Accordingly, it concluded Picklesimer was not aggrieved by the trial court‟s order
denying his motion (see § 1237, subd. (b)), the order was therefore unappealable,
and the appeal must be dismissed.
We granted review to address the proper treatment of claims for relief
under Hofsheier.
DISCUSSION
I. Claims for Hofsheier Relief by Individuals No Longer in Custody Must
Be Brought by Way of a Petition for Writ of Mandate
In Hofsheier, supra, 37 Cal.4th 1185, we considered a constitutional
challenge to the mandatory sex offender registration requirement imposed for
convictions under section 288a, subdivision (b)(1) (oral copulation with a minor)
in light of the absence of any similar requirement for convictions under section
261.5 (sexual intercourse with a minor). We concluded that, at least for voluntary
oral copulation with a 16- or 17-year-old minor, the registration requirement could
not withstand rational basis review and, accordingly, was a violation of equal
protection. (Hofsheier, at pp. 1200-1207.) Following our decision in Hofsheier,
the Department of Justice advised Picklesimer and others of the possibility they
could be eligible to have their names removed from the state sex offender registry.
Picklesimer sought relief by filing a motion in the trial court, purportedly as
part of People v. Picklesimer (Super. Ct. Trinity County, 1993, No. 92CR065), the
People‟s long-since-final criminal prosecution of him. However, “[t]here is no
statutory authority for a trial court to entertain a postjudgment motion that is
unrelated to any proceeding then pending before the court. [Citation.] Indeed, a
motion is not an independent remedy. It is ancillary to an on-going action and
3

„ “implies the pendency of a suit between the parties and is confined to incidental
matters in the progress of the cause. As the rule is sometimes expressed, a motion
relates to some question collateral to the main object of the action and is connected
with, and dependent on, the principal remedy.” ‟ [Citation.] In most cases, after
the judgment has become final, there is nothing pending to which a motion may
attach.” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 76-77.)
Although exceptions to the rule precluding postjudgment motions exist,2
Picklesimer does not demonstrate persuasively that any apply. Relying on one of
our more ancient pronouncements, he argues that once the Court of Appeal issued
its remittitur after affirming the original judgment, the trial court‟s jurisdiction
over the case, largely suspended during the pendency of the appeal, resumed. (See
People v. Dick (1870) 39 Cal. 102, 103-104.) While this is true, the argument
speaks only to the allocation of jurisdiction between trial courts and Courts of
Appeal and does not address the core issue — the actual scope of the trial court‟s
postjudgment jurisdiction. Following appellate affirmance of a trial court
judgment and issuance of a remittitur, “the trial court is revested with jurisdiction
of the case, but only to carry out the judgment as ordered by the appellate court.”
(People v. Dutra (2006) 145 Cal.App.4th 1359, 1366; see § 1265, subd. (a)
[following receipt of remittitur, the trial court has jurisdiction to issue “all orders
necessary to carry the judgment into effect”].) As both parties recognize,

2
These exceptions generally arise in instances where the Legislature has
expressly authorized such a motion. (See, e.g., § 17, subd. (b)(3) [motion to
reduce a “wobbler” to a misdemeanor]; § 1016.5, subd. (b) [motion to vacate
judgment and withdraw a plea based on the immigration consequences of the
plea]; § 1203.4 [motion by probationer to vacate plea and dismiss charges];
§ 1473.6 [motion to vacate judgment based on newly discovered evidence of
fraud].)
4

Picklesimer‟s registration requirements and placement in the state sex offender
registry are not part of the judgment in his case, but rather collateral consequences
of that judgment. Accordingly, the trial court‟s jurisdiction to issue orders
carrying out the judgment did not grant it authority to act on a motion seeking to
modify an obligation that was not any part of the judgment.3
Nor is Picklesimer‟s obligation to register part of an unauthorized sentence,
which the trial court would have had jurisdiction to correct at any time. (See In re
Sheena K. (2007) 40 Cal.4th 875, 882 & fn. 3, 887; People v. Scott (1994) 9
Cal.4th 331, 354; In re Harris (1993) 5 Cal.4th 813, 840 [“ „Fundamental
jurisdictional defects [i.e., acts in excess of jurisdiction], like constitutional
defects, do not become irremediable when a judgment of conviction becomes
final, even after affirmance on appeal.‟ ”].) Rather, the obligation is a separate
consequence of Picklesimer‟s conviction automatically imposed as a matter of
law.
Finally, we reject Picklesimer‟s argument that Code of Civil Procedure
section 187 creates jurisdiction to address his motion. (See People v. Hyde, supra,
49 Cal.App.3d 97 [relying on Code Civ. Proc., § 187 as authority for a trial court
to hear a postjudgment motion for presentencing custody credits].) Section 187 of
the Code of Civil Procedure provides: “When jurisdiction is, by the Constitution
or this Code, or by any other statute, conferred on a Court or judicial officer, all

3
This point distinguishes People v. Hyde (1975) 49 Cal.App.3d 97, relied on
by Picklesimer. In Hyde, the in-custody defendant filed a postjudgment motion
asserting his entitlement to additional presentence custody credits disputed by the
Adult Authority. The underlying judgment sentenced the defendant to state prison
“ „for the term prescribed by law‟ ” (id. at p. 101), and the defendant sought to
have the court clarify that portion of its judgment. Whether or not Hyde was
correct under the law as it then stood in the area it addressed (a motion to clarify
prison custody credits) — a point we do not decide — it has no bearing here.
5

the means necessary to carry it into effect are also given; and in the exercise of this
jurisdiction, if the course of proceeding be not specifically pointed out by this
Code or the statute, any suitable process or mode of proceeding may be adopted
which may appear most conformable to the spirit of this Code.” The section does
not speak to jurisdiction; it does not create jurisdiction; rather, the existence of
jurisdiction is the premise for its application. Where jurisdiction exists from other
sources, Code of Civil Procedure section 187 grants courts authority to exercise
any of their various powers as may be necessary to carry out that jurisdiction. To
the extent jurisdiction to hear Picklesimer‟s motion is otherwise lacking, Code of
Civil Procedure section 187 affords Picklesimer no comfort here.4
That a postjudgment motion is unavailable does not mean dismissal is
mandated. As the People concede, every right must have a remedy. (See People
v. Hyde, supra, 49 Cal.App.3d at p. 101 [“[A] right but no expeditious and
adequate remedy. . . . is an unconscionable situation which a court of justice
cannot tolerate.”].)
For a defendant still in actual or constructive custody, a petition for writ of
habeas corpus in the trial court is the preferred method by which to challenge
circumstances or actions declared unconstitutional after the defendant‟s conviction
became final. (See People v. Fuhrman (1997) 16 Cal.4th 930, 942; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; People v. Tenorio

4
Without analysis of the procedural questions we resolve here, several
Courts of Appeal have addressed on the merits appeals of freestanding
postjudgment motions seeking Hofsheier relief. (See People v. Luansing (2009)
176 Cal.App.4th 676; People v. Hernandez (2008) 166 Cal.App.4th 641; People v.
Manchel (2008) 163 Cal.App.4th 1108; People v. Garcia (2008) 161 Cal.App.4th
475.) To the extent these cases may be read as endorsing a postjudgment motion
as an appropriate means of seeking Hofsheier relief for noncustodial defendants,
we disapprove them as inconsistent with our analysis.
6

(1970) 3 Cal.3d 89, 95, fn. 2.) But once a defendant has been released and is no
longer subject to parole or probation, he or she is no longer in constructive custody
and this avenue is foreclosed. (People v. Villa (2009) 45 Cal.4th 1063, 1069-
1070.) “[C]ollateral consequences of a criminal conviction—even those that can
later form the basis of a new criminal conviction—do not of themselves constitute
constructive custody.” (Id. at p. 1070.) Thus, a party no longer in constructive
custody may not challenge his or her obligation to register as a sex offender by
way of a petition for writ of habeas corpus. (In re Stier (2007) 152 Cal.App.4th
63, 81-83.)
For out-of-custody defendants such as Picklesimer, we agree with the Court
of Appeal‟s analysis of the problem in Lewis v. Superior Court, supra, 169
Cal.App.4th 70, now seconded by the People: the appropriate vehicle for seeking
Hofsheier relief is a petition for writ of mandate filed in the trial court. (Lewis, at
p. 77; see also In re Stier, supra, 152 Cal.App.4th at pp. 83-84.) Unlike a petition
for writ of habeas corpus, a petition for writ of mandate does not require ongoing
custody; unlike a postjudgment motion, it is an independent proceeding that vests
the trial court with jurisdiction to act. (See Code Civ. Proc., § 1085; Lewis, at
p. 77.)
Code of Civil Procedure section 1085, providing for writs of mandate, is
available to compel public agencies to perform acts required by law. (Santa Clara
County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539.) To obtain
relief, a petitioner must demonstrate (1) no “plain, speedy, and adequate”
alternative remedy exists (Code Civ. Proc., § 1086); (2) “a clear, present, . . .
ministerial duty on the part of the respondent”; and (3) a correlative “clear,
present, and beneficial right in the petitioner to the performance of that duty.”
(Santa Clara County Counsel Attys. Assn., at pp. 539-540; see Code Civ. Proc.,
§§ 1085-1086.) A ministerial duty is an obligation to perform a specific act in a
7

manner prescribed by law whenever a given state of facts exists, without regard to
any personal judgment as to the propriety of the act. (Kavanaugh v. West Sonoma
County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
Picklesimer and other noncustodial parties seeking Hofsheier relief have no
available alternative remedy. Upon the filing of a verified petition for writ of
mandate (see Code Civ. Proc., § 1086), a trial court has jurisdiction to resolve any
legal or factual issues, via an evidentiary hearing if need be (Cal. Rules of Court,
rules 3.1103, 3.1306). Placement in, or removal of, a person from the state sex
offender registry is a ministerial act, contingent only on whether the person has
suffered a conviction that lawfully mandates registration (§ 290, subd. (c)) or has
been the subject of a court‟s discretionary order to require registration (§ 290.006).
If a party seeking Hofsheier relief can establish he or she no longer should be
required to register, the trial court may issue a writ directing the Department of
Justice to remove the petitioner from the state sex offender registry. Accordingly,
we hold a petition for writ of mandate filed in the trial court is the proper way for a
postcustodial party to seek Hofsheier relief.5
Picklesimer misfiled his request for Hofsheier relief as a postjudgment
motion. However, “[t]he label given a petition, action or other pleading is not
determinative; rather, the true nature of a petition or cause of action is based on the
facts alleged and remedy sought in that pleading.” (Escamilla v. Department of
Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511; accord, People v.
Villa, supra, 45 Cal.4th at pp. 1067-1068.) Assuming the pleading that has been

5
While the Department of Justice, as the entity responsible for maintenance
of the state sex offender registry, would be the nominal respondent, the People as
the real party in interest should receive notice and an opportunity to appear in any
writ proceedings as well.
8

filed meets or can be amended to meet the prerequisites for a petition for writ of
mandate, a court in its discretion may treat a motion or a petition for a different
writ as a mislabeled petition for writ of mandate. (Lewis v. Superior Court, supra,
169 Cal.App.4th at p. 77 [postjudgment motion]; Escamilla, at pp. 511-512
[petition for writ of habeas corpus]; cf. In re Stier, supra, 152 Cal.App.4th at pp.
83-84 [recognizing the general principle, but declining to exercise its discretion to
convert a petition for writ of habeas corpus to a petition for writ of mandate and
decide it on the merits].)
Picklesimer asks that we exercise our discretion to treat his motion as a
petition for writ of mandate and decide it in the first instance, as in Lewis v.
Superior Court, supra, 169 Cal.App.4th 70. The People ask that we decline to do
so and allow the merits to be addressed in the first instance in the trial court, as in
In re Stier, supra, 152 Cal.App.4th 63. Which course is proper depends in large
part on whether the appellate record is sufficient to determine that all potential
factual issues are undisputed, as in Lewis, or whether it is incomplete and
precludes such a determination, as in Stier. In turn, whether any potential factual
issues exist depends on whether Picklesimer has established he is entitled to be
freed from all registration requirements as a matter of law. We turn to that
question.
II. Section 290.006 Applies Retroactively to Parties Seeking Hofsheier
Relief; Accordingly, Picklesimer Has Not Established a Right to Be
Free from Registration as a Matter of Law
Picklesimer‟s mandatory registration rests on two convictions, one under
section 288a, subdivision (b)(1) (oral copulation with a minor) and the other under
section 289, subdivision (h) (sexual penetration of a minor). The first of these is
the precise violation we addressed in Hofsheier, supra, 37 Cal.4th 1185.
Picklesimer‟s victim was 17 years old, and the People do not contest that the oral
9

copulation was “voluntary” in the limited sense we used that term in Hofsheier;6
accordingly, they concede this conviction cannot support mandatory registration.
While we did not address section 289, subdivision (h) in Hofsheier, the People
similarly concede Hofsheier‟s principles are equally applicable to that section and
it too cannot be a basis for mandatory registration here. (See People v. Ranscht
(2009) 173 Cal.App.4th 1369 [holding mandatory registration based on a
conviction for voluntary sexual penetration (§ 289, subd. (h)) violates equal
protection].) Thus, we assume without deciding that Picklesimer is not subject to
lifetime registration under the mandatory provisions of the Sex Offender
Registration Act (the Act) (§§ 290-290.023).
However, the People contend Picklesimer still is not entitled to relief as a
matter of right; rather, they argue, the trial court must first determine whether he
should be subject to discretionary lifetime registration. (§ 290.006.)7 In contrast,
Picklesimer insists that relief is mandatory because section 290.006 cannot be

6
As we there explained, in Hofsheier we used “the term „voluntary‟ in a
special and restricted sense to indicate both that the minor victim willingly
participated in the act and [that] . . . various statutory aggravating circumstances
[were absent]: 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)); the perpetrator‟s „threatening to retaliate in the future against the
victim or any other person‟ (§ 288a, subd. (c)(3)); and the commission of the act
while the victim is unconscious (§ 288a, subd. (f)) or intoxicated (§ 288a, subd.
i)).” (Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2.)
7
Section 290.006 provides: “Any person ordered by any court to register
pursuant to the 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 purposes of sexual gratification. The court shall state on the record the
reasons for its findings and the reasons for requiring registration.”
10

applied to him. We consider whether Picklesimer may be subject to discretionary
lifetime registration.
In Hofsheier itself, we limited relief to a remand for application of section
290.006 (then codified as former § 290, subd. (a)(2)(E)). (Hofsheier, supra, 37
Cal.4th at pp. 1208-1209.) That is, we concluded the consequence of the equal
protection violation was not that a defendant convicted under section 288a,
subdivision (b)(1) (oral copulation with a minor) had been placed in the state sex
offender registry when otherwise he would have been excluded, but that he had
been placed in the state sex offender registry automatically when otherwise his
placement would have been a matter of discretion under former section 290,
subdivision (a)(2)(E) (now § 290.006). The remedy we crafted, remand for a
discretionary determination whether Hofsheier should be required to register, was
tailored to address this harm. Picklesimer‟s various arguments for why section
290.006 cannot be applied to him do not persuade us a different result is required
here.
Picklesimer argues section 290.006 cannot be applied retroactively to him,
as it was originally adopted in 1994, after he was convicted. (See former § 290,
subd. (a)(2)(E), enacted by Stats. 1994, ch. 867, § 2.7, pp. 4389-4390; People v.
Olea (1997) 59 Cal.App.4th 1289, 1292, fn. 1.) “New statutes are presumed to
operate only prospectively absent some clear indication that the Legislature
intended otherwise.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 936.) Here, there
is just such a pellucid declaration of legislative intent: “The registration
provisions of the Act are applicable to every person described in the Act, without
regard to when his or her crime or crimes were committed or his or her duty to
register pursuant to the Act arose, and to every offense described in the Act,
regardless of when it was committed.” (§ 290.023.)
11

Conceding this statutory language, Picklesimer nevertheless argues the
Legislature never intended section 290.006, which by its terms requires
contemporaneous findings, to extend retroactively to convictions entered before
January 1, 1995, the statute‟s effective date. In effect, Picklesimer argues that
those convicted of section 261.5 (sexual intercourse with a minor) violations and
sentenced before January 1, 1995, are not subject to discretionary registration,
because former section 290, subdivision (a)(2)(E) (now § 290.006) by its terms
established only a forward-looking requirement — that trial courts at conviction or
sentencing consider discretionary registration. Accordingly, the consequence of
the equal protection violation for those defendants, like Picklesimer, convicted of
section 288a, subdivision (b)(1) (oral copulation with a minor) and sentenced
before January 1, 1995, is that they are placed on the sex offender rolls when they
would otherwise have been free of both mandatory and discretionary registration.
We disagree. The Legislature‟s clear intent is for all provisions of the Act,
including section 290.006, to apply going forward. We determined in Hofsheier,
supra, 37 Cal.4th 1185, and reiterate today, that in cases where mandatory sex
offender registration has been shown to violate equal protection, the procedure that
most closely matches the legislative intent is not automatic removal of a sex
offender from the state sex offender registry, but an after-the-fact discretionary
determination whether removal is appropriate.8 To permit trial courts at such a

8
It is true section 290.006‟s language provides for discretionary findings to
be made “at the time of conviction or sentencing.” However, implicit in our
decision in Hofsheier, supra, 37 Cal.4th at pages 1208-1209, was the conclusion
that the Legislature did not intend by this language to strip courts of the power to
later enter findings in instances where, at the time of conviction or sentencing, any
need for findings was obviated by the existence of a then valid mandatory
registration requirement.
12

relief hearing to consider discretionary registration only if the underlying
conviction arose on or after January 1, 1995, would contravene the Legislature‟s
implicit intent in adopting the Act. (See § 290.023 [dates of offense and initial
duty to register are immaterial for purposes of applying the Act]; cf. People v.
Castellanos (1999) 21 Cal.4th 785 [upholding as constitutional the Legislature‟s
decision to extend former § 290, subd. (a)(2)(E), now § 290.006, to offenses
committed before Jan. 1, 1995].) Accordingly, in crafting an equal protection
remedy, we see no reason to distinguish between Hofsheier relief proceedings
involving pre-1995 and post-1995 convictions. (See People v. Garcia, supra, 161
Cal.App.4th at p. 486 [§ 290.006 may be constitutionally applied to a defendant
seeking Hofsheier relief, even though it was not in existence when the defendant
was originally sentenced].)
In the alternative, Picklesimer argues application of section 290.006 is
unlawful because it permits imposition of heightened punishment based on
findings of fact by a trial court rather than a jury, in violation of Apprendi v. New
Jersey (2000) 530 U.S. 466 and its progeny. As we have explained, “sex offender
registration is not considered a form of punishment under the state or federal
Constitution [citations] . . . .” (Hofsheier, supra, 37 Cal.4th at p. 1197; see also
Smith v. Doe (2003) 538 U.S. 84, 105-106 [sex offender registration is not
punishment for purposes of the ex post facto clause].) Accordingly, Apprendi‟s
requirement that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt” (Apprendi, at p. 490)
has no application here. (See People v. Presley (2007) 156 Cal.App.4th 1027,
1033-1035 [Apprendi does not apply to the discretionary determination whether to
require sex offender registration]; People v. Garcia, supra, 161 Cal.App.4th at
13

p. 486 [Apprendi does not apply to the determination whether to deny Hofsheier
relief on the ground discretionary registration should still be imposed].)
Picklesimer acknowledges our previous conclusions that registration is not
punishment, but argues that the sex offender residency restrictions of the Sexual
Predator Punishment and Control Act: Jessica‟s Law (§ 3003.5, subd. (b), added
by Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006)) are punishment,
and thus that the facts required to impose those restrictions — the facts supporting
continued sex offender status — must now be found beyond a reasonable doubt by
a jury pursuant to Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny.
Picklesimer cannot show a potential Apprendi violation on this basis. If
Proposition 83‟s restrictions do not amount to punishment for his original crimes,
there is no Apprendi problem and no right to a jury trial. Conversely, if
Proposition 83‟s restrictions were to be considered punishment for his original
offenses (but see In re E.J. (2010) 47 Cal.4th 1258, 1271-1280), they could not
under the state and federal ex post facto clauses be constitutionally applied to
Picklesimer, whose crimes all long predate the approval of Proposition 83. (See
U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; People v. Grant (1999) 20
Cal.4th 150, 158.) In either event, there is no constitutional bar to having a judge
exercise his or her discretion to determine whether Picklesimer should continue to
be subject to registration.
Picklesimer also contends he cannot be subjected to a discretionary
determination on whether he should continue to be required to register without
first being permitted the opportunity to withdraw his plea. But he concedes he
was aware at the time he entered his plea that sex offender registration was a
mandatory, automatic consequence of the plea; he cannot complain now that he is
being afforded at least the possibility of being spared that consequence. Indeed, as
we explained in People v. McClellan (1993) 6 Cal.4th 367, 378, even had
14

Picklesimer not been aware of the registration consequence, he would not be
entitled to withdraw his plea absent a showing that he would not have pleaded
guilty but for the court‟s omission. Where, as here, there was no misadvisement
and no breach of any plea term, there certainly is no basis for a plea withdrawal.
(See People v. Walker (1991) 54 Cal.3d 1013, 1022-1027.)
Next, Picklesimer argues section 290.006 was intended to apply only to
“nonsexual” offenses, such as stalking or burglary, that may have been committed
to gratify sexual impulses, not to inherently sexual offenses the Legislature chose
to exempt from mandatory registration. Notably, however, the language of the
statute contains no such limitation; instead, it requires registration following
conviction “for any offense not included specifically in subdivision (c) of Section
290” (the provision listing those convictions that give rise to mandatory
registration), provided certain findings are made. (§ 290.006.) The statutory
scheme thus creates two categories of crimes: those listed in section 290,
subdivision (c) (to which a registration requirement attaches automatically) and all
others (for which registration is contingent on the trial court making specific
additional findings under § 290.006). Picklesimer essentially posits three
categories of crimes: those (uniformly sexual in nature) for which registration is
mandatory, those (uniformly nonsexual in nature) for which registration is
permitted, and those (again, uniformly sexual in nature) for which registration is
forbidden. As the statutory scheme nowhere identifies what crimes might fall in
this supposed third category, nor offers any judicial warrant for creating such a
category, we decline to do so.
Finally, Picklesimer argues that even if section 290.006 applies to him, no
facts exist that would support the trial court‟s exercise of discretion to retain him
in the state sex offender registry. (See Lewis v. Superior Court, supra, 169
Cal.App.4th at pp. 78-79 [granting Hofsheier relief on appeal, because there was
15

no evidence in the record to support a discretionary registration requirement].)
Accordingly, he argues, we may still follow the Lewis course of treating his
motion as a petition for writ of mandate and issuing a writ directing the trial court
to grant him relief.
The issue, however, is contested, and unlike in Lewis v. Superior Court,
supra, 169 Cal.App.4th 70, the record before us is incomplete; no part of the
original proceedings is included in the record on appeal. We thus cannot
determine whether this is a case in which there is “no basis for the exercise of
discretion” because “the existing facts unequivocally require one particular
action.” (Id. at p. 77.) We therefore follow the course of the Court of Appeal in In
re Stier, supra, 152 Cal.App.4th 63, and decline to exercise our discretion to
convert Picklesimer‟s motion to a petition for writ of mandate and decide it on the
merits.
DISPOSITION
For the foregoing reasons, we affirm the judgment of the Court of Appeal,
without prejudice to Picklesimer‟s opportunity to file an original petition for writ
of mandate in the trial court seeking whatever relief he may be entitled to under
People v. Hofsheier, supra, 37 Cal.4th 1185.

WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
16


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Picklesimer __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 164 Cal.App.4th 723
Rehearing Granted

__________________________________________________________________________________

Opinion No. S165680
Date Filed: March 15, 2010
__________________________________________________________________________________

Court: Superior
County: Trinity
Judge: James Woodward

__________________________________________________________________________________

Attorneys for Appellant:
Law Offices of Dane A. Cameron and Dane A. Cameron for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, John G. McClean, Stephen G. Herndon, Janet E. Neeley and Darren K.
Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Dane A. Cameron
Law Offices of Dane A. Cameron
341 Flume Street
Chico, CA 95928
(530) 893-0676

Darren K. Indermill
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5244

Petition for review after the Court of Appeal dismissed the appeal in a criminal proceeding. This case presents the following issue: Did the trial court have jurisdiction to entertain a motion, in light of the decision in People v. Hofsheier, 37 Cal.4th 1185 (2006), to vacate an order requiring defendant to register as a sex offender due to a final conviction affirmed on appeal years earlier?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 03/15/201048 Cal. 4th 330, 226 P.3d 348, 106 Cal. Rptr. 3d 239S165680Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Darren Kyle Indermill
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

2Picklesimer, Andrew Nelson (Defendant and Appellant)
13070 John Place
Redbluff, CA 96080

Represented by Dane A. Cameron
Attorney at Law
341 Flume Street, Suite C
Chico, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Dockets
Aug 5 2008Petition for review filed
  Andrew Nelson Picklesimer, appellant by Matthew C. Bently, certified law student Dane A. Cameron, counsel
Aug 5 2008Record requested
 
Aug 5 2008Received:
  filing of consent form for representation by certified law student. by Dane A. Cameron, counsel
Aug 7 2008Received Court of Appeal record
  one doghouse
Aug 20 2008Answer to petition for review filed
  counsel for resp. People
Sep 2 2008Reply to answer to petition filed
  counsel for petnr. 8.25(b))
Sep 25 2008Received:
  from counsel for petnr. Augmentation to petition for review.
Oct 1 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including November 3, 2008, or the date upon which review is either granted or denied.
Oct 16 2008Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 13 2008Request for extension of time filed
  counsel for petitioner requests 45-day extension of time to file the opening brief on the merits.
Nov 20 2008Extension of time granted
  On application of petitioner and good cause appearing it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 31, 2008. No further extensions are contemplated.
Dec 29 2008Opening brief on the merits filed
  counsel for petnr.
Jan 29 2009Request for extension of time filed
  counsel for respondent requests 14-day extension of time to 2-11-09 to file the answer brief on the merits.
Feb 5 2009Extension of time granted
  On application of respondent and good cause appearing it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 11, 2009.
Feb 6 2009Answer brief on the merits filed
  counsel for resp.
Feb 17 2009Request for extension of time filed
  counsel for petnr. requests 30-day extension of time to March 28, 2009, to file the reply brief on the merits.
Feb 23 2009Extension of time granted
  On application of petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including March 28, 2009.
Mar 25 2009Reply brief filed (case fully briefed)
  counsel for petnr.
Dec 2 2009Case ordered on calendar
  to be argued on January 7, 2010, at 1:30 p.m., in San Francisco.
Jan 7 2010Cause argued and submitted
 
Mar 12 2010Notice of forthcoming opinion posted
  To be filed Monday, March 15, 2010 at 10 a.m.

Briefs
Dec 29 2008Opening brief on the merits filed
 
Feb 6 2009Answer brief on the merits filed
 
Mar 25 2009Reply brief filed (case fully briefed)
 
Brief Downloads
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Answer Brief - People v. Picklesimer.pdf (1154997 bytes)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 28, 2010
Annotated by yinadong

Annotation by Yina Dong

FACTS:
In 1993, defendant Andrew Nelson Picklesimer pled guilty to various violations of the California Penal Code for oral copulation with and sexual penetration of a minor. Because of these convictions, Picklesimer was required to register as a sex offender under California Penal Code § 290.

In 2006, the Supreme Court ruled in People v. Hofsheier (2006) that for defendants convicted of violations of California Penal Code § 288a, subdivision (b)(1) (voluntary oral copulation with a 16- or 17-year-old minor), the imposition of mandatory lifetime sex offender registration was a violation of state and federal equal protection clauses.

PROCEDURAL POSTURE:
After the Hofsheier decision, Picklesimer filed a motion with the trial court asking to be removed from the California sex offender registry and relieved from his mandatory lifetime registration obligation. The trial court ruled that it lacked jurisdiction to rule on a freestanding postjudgment motion, and the Court of Appeal affirmed.

HOLDING:
The Supreme Court held that people who are no longer in custody must bring their Hofsheier relief claims by way of a petition for writ of mandate in the trial court, not a freestanding postjudgment motion. In order for a court to treat a postjudgment motion as a mislabeled petition for writ of mandate, the defendant must also be exempt from discretionary sex offender registration. Because there was incomplete evidence in the record to determine whether Picklesimer was exempt from discretionary sex offender registration, the Court declined to convert Picklesimer’s motion to a petition for writ of mandate. The Court affirmed denial of Hofsheier relief, but without prejudice so that Picklesimer could file an original petition for writ of mandate in the trial court.

ANALYSIS:
A trial court may not rule on a postjudgment motion that is unrelated to any proceeding pending before the court:
• “Picklesimer’s registration requirements and placement in the state sex offender registry are not part of the judgment in his case, but rather collateral consequences of that judgment.”
• “[A]fter the judgment has become final, there is nothing pending to which a motion may attach.”

A petition for writ of mandate is the only available remedy once the defendant is out of custody:
• “For a defendant still in actual or constructive custody, a petition for writ of habeas corpus in the trial court is the preferred method by which to challenge circumstances or actions declared unconstitutional after the defendant’s conviction became final.”
• “Unlike a petition for writ of habeas corpus, a petition for writ of mandate does not require ongoing custody; unlike a postjudgment motion, it is an independent proceeding that vests the trial court with jurisdiction to act.”

The defendant must also be exempt from discretionary sex offender registration:
• The legislative intent is clear that trial courts may consider discretionary registration regardless of whether underlying conviction arose before or after January 1, 1995.
• “[I]n cases where mandatory sex offender registration has been shown to violate equal protection, the procedure that most closely matches the legislative intent is not automatic removal of a sex offender from the state sex offender registry, but an after-the-fact discretionary determination whether removal is appropriate.”
• “[T]here is no constitutional bar to having a judge exercise his or her discretion to determine whether Picklesimer should continue to be subject to registration.”
• Because no part of the original proceedings in Picklesimer’s case was included in the record on appeal, the Supreme Court was unable to determine whether he should be exempt from discretionary sex offender registration.

TAGS:
sex offender registration, California Penal Code, Hofsheier relief, petition for writ of mandate, postjudgment motion