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