D.M. v. Department of Juctice

JENKINS, J., Concurring.

I join fully in the opinion written by my colleague Justice Pollak, but write separately to comment on the consequences of our decision in light of the interplay between Penal Code section 4852.01 et seq.1 (request for certificate of rehabilitation) and section 290.5, subdivision (a)(1) (certificate of rehabilitation; relief from duty to register). As Justice Pollak’s opinion makes clear, our Supreme Court’s decision in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] compels the conclusion we reach here today. Simply put, in light of Hofsheier, section 290.5, subdivision (a)(2)(N) is unconstitutional because it excludes those, like plaintiff, who have been convicted under section 288a, subdivision (b)(1) from being automatically relieved of the requirement to register once they receive a certificate of rehabilitation while similarly situated offenders who have been convicted under section 261.5 of felony unlawful sexual intercourse with a minor are automatically relieved of the requirement to register when they obtain such a certificate.

Accordingly, today we invalidate section 290.5, subdivision (a)(2)(N) and plaintiff is automatically relieved of the obligation to register as a sex offender. Our invalidation of section 290.5, subdivision (a)(2)(N) is compelled by Hofsheier, but the automatic effect on plaintiff’s obligation to register under section 290 merits further comment. Plaintiff’s obligation to *1454register as a sex offender was imposed upon him by operation of law under the mandatory provisions of section 290. Thus, the sentencing court had no occasion to consider whether to impose the registration requirement in the exercise of its discretion pursuant to section 290.006. Moreover, when plaintiff petitioned the trial court for a certificate of rehabilitation, as a felon convicted under section 288a, subdivision (b)(1), he .was not to be relieved of the obligation to register upon obtaining a certificate of rehabilitation. (§ 290.5, subd. (a)(2)(N).) Consistent with the language of section 290.5, subdivision (a)(2)(N), the record here reflects that when the trial court granted plaintiff’s request for a certificate of rehabilitation, it had no reason to consider the impact of granting such relief upon his duty to register under section 290. Thus, plaintiff has been granted rehabilitation without any trial court having the occasion to consider the impact granting that relief would have on his duty to register under section 290.

In the circumstances, plaintiff is constitutionally entitled to be relieved of the requirement that he register as a sex offender. However, to ensure that the sex offender registration scheme reflects the public policy objectives the Legislature sought to accomplish when it included section 288a, subdivision (b)(1) among those offenses that would require registration notwithstanding issuance of a certificate of rehabilitation, the Legislature may wish to revisit the circumstances when under section 290.5 a grant of pardon or certificate of rehabilitation will automatically relieve a plaintiff from the registration requirements.

Siggins, J., concurred.

Further statutory references are to the Penal Code unless otherwise noted.