Johnson v. Dep't of Justice, No. S209167.

CourtUnited States State Supreme Court (California)
Writing for the CourtBAXTER, J.
Citation341 P.3d 1075,183 Cal.Rptr.3d 96,60 Cal.4th 871
PartiesJames Richard JOHNSON, Plaintiff and Appellant, v. DEPARTMENT OF JUSTICE, Defendant and Respondent; The People, Real Party in Interest and Respondent.
Decision Date29 January 2015
Docket NumberNo. S209167.

60 Cal.4th 871
341 P.3d 1075
183 Cal.Rptr.3d 96

James Richard JOHNSON, Plaintiff and Appellant
DEPARTMENT OF JUSTICE, Defendant and Respondent;
The People, Real Party in Interest and Respondent.

No. S209167.

Supreme Court of California

Jan. 29, 2015.

183 Cal.Rptr.3d 98

Marilee Marshall & Associates and Marilee Marshall, Los Angeles, 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.


183 Cal.Rptr.3d 99


60 Cal.4th 874

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 allows for discretionary sex offender registration for those convicted of unlawful sexual intercourse with a minor (§§ 261.5, 290.006 ), but imposes mandatory registration for those convicted of crimes involving other types of sexual activity with a minor (§ 290, subds.(b), (c)).

This court previously addressed this statutory disparity in People v. Hofsheier (2006) 37 Cal.4th 1185, 39 Cal.Rptr.3d 821, 129 P.3d 29 (Hofsheier ). Hofsheier interpreted the federal and state equal protection clauses as invalidating mandatory sex offender registration for a 22–year–old defendant convicted of nonforcible oral copulation with a person 16 years of age (§ 288a, subd. (b)(1) ), for the reason that a same-aged defendant convicted of unlawful sexual intercourse with a same-aged minor (§ 261.5 ) is subject to discretionary registration.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

60 Cal.4th 875

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, 183 Cal.Rptr.3d at pp. 115–116, 341 P.3d at pp. 1091–1092.)

Plaintiff James Richard Johnson seeks to invoke Hofsheier in the context of his conviction for nonforcible oral copulation by an adult over 21 years with a person under 16 years of age. (§ 288a, subd. (b)(2).) At this juncture, however, continued judicial nullification of mandatory registration is denying significant effect to the legislative policy choices embodied in the Sex Offender Registration Act. Because the Legislature cannot restore the constitutional validity of requiring registration for statutorily enumerated crimes without making registration mandatory for unlawful sexual intercourse, we deem it prudent to revisit Hofsheier's merits.

Upon reexamination, we find Hofsheier's constitutional analysis faulty. In particular, it mistakenly concluded that no rational basis exists for subjecting intercourse offenders and oral copulation offenders to different registration consequences. Although

183 Cal.Rptr.3d 100

Hofsheier accepted the reasonableness of the Legislature's determination that, generally, mandatory registration promotes the policy goals of preventing recidivism and facilitating surveillance of sex offenders who prey on underage victims, the decision failed to adequately appreciate that, among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood. Given that unique potential, legislative concerns regarding teen pregnancy and the support of children conceived as a result of unlawful sexual intercourse provide more than just a plausible basis for allowing judicial discretion in assessing whether perpetrators of that crime should be required to register, while mandating registration for perpetrators of other nonforcible sex crimes.

Like the United States Supreme Court, “[w]e do not lightly reconsider a precedent” and are mindful that “stare decisis is the ‘preferred course’ in constitutional adjudication.” (United States v. Dixon (1993) 509 U.S. 688, 711, 712, 113 S.Ct. 2849, 125 L.Ed.2d 556.) 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, 111 S.Ct. 2597, 115 L.Ed.2d 720.) Accordingly, we acknowledge the decision was in error and hereby overrule it.

Factual and Procedural Background

In 1990, a five-count complaint was filed against James Richard Johnson, alleging two counts of lewd acts upon a child under 14 years of age, a felony

60 Cal.4th 876

(§ 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, 39 Cal.Rptr.3d 821, 129 P.3d 29.) Citing Hofsheier and its progeny, Johnson filed a petition for a writ of mandate in superior court in 2011, seeking his removal from the sex offender registry maintained by the California Department of Justice and relief from future registration obligations. (See People v. Picklesimer (2010) 48 Cal.4th 330, 106 Cal.Rptr.3d 239, 226 P.3d 348.) The superior court denied the petition in reliance on People v. Manchel (2008) 163 Cal.App.4th 1108, 78 Cal.Rptr.3d 194 (Manchel ), a case that had rejected a Hofsheier claim by a 29–year–old defendant convicted of section 288a(b)(2), the same felony oral copulation offense at issue here.

In reversing the superior court judgment, the Court of Appeal agreed with other appellate decisions that criticized Manchel's holding and rationale. (See

183 Cal.Rptr.3d 101

People v. Luansing (2009) 176 Cal.App.4th 676, 97 Cal.Rptr.3d 836 (Luansing ); People v. Ranscht (2009) 173 Cal.App.4th 1369, 93 Cal.Rptr.3d 800 (Ranscht ).) Finding that section 290's registration requirement violated Johnson's equal protection rights, the court remanded the matter to the superior court for a determination whether he should be required to register under the discretionary registration provision in section 290.006.

We granted review to decide whether Johnson is entitled to relief under Hofsheier's equal protection analysis. Thereafter we requested briefing on whether this court should overrule Hofsheier, and if so, whether our decision should apply retroactively.


Section 290 is a key provision of California's Sex Offender Registration Act that “ ‘applies automatically’ ” to section 288a and the other offenses

60 Cal.4th 877

enumerated therein, and “ ‘imposes on each person convicted a lifelong obligation to register.’ [Citations.] Registration is mandatory [citation], and is ‘not a permissible subject of plea agreement negotiation’ [citation].” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527, 63 Cal.Rptr.2d 322, 936 P.2d 101 (Wright ).)

Section 290 “is intended to promote the ‘ “state interest in controlling crime and preventing recidivism in sex offenders” ’ ” (Wright, supra, 15 Cal.4th at p. 527, 63 Cal.Rptr.2d 322, 936 P.2d 101 ) 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, 39 Cal.Rptr.3d 821, 129 P.3d 29 ; see...

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