California Criminal Lawyer Blog

Here is another Hofsheier (27 Cal.4th 1185) case, this one a loss. In Hofsheier, the California Supreme Court struck down the mandatory sex registration requirement for California penal Code sec. 288a, consensual oral copulation with a minor (16 in that case) as violative of equal protection, because consensual sex with that same minor (Penal Code 261.5) doesn't mandate Penal Code 290 sex registration.

This case involves mandatory registration for violation of Penal Code 288(c)(1), lewd acts with a minor 14 or 15 by a person more than 10 years older.

Here are the Court of Appeal's reasons for saying Hofsheier doesn't apply. First,
288(c)(1) requires specific intent! Right, you can certainly have consensual sex with a minor without any intent to do so. Second, the requirement that the def. be more than 10 years older somehow justifies distinguishing Hofsheier. Third, 288(c)(1) victims are 14 or 15, while the victim in Hofsheier was 16. Right. Huh?

So does this mean that every person who has sexual conduct with a person who is 14 or 15, when the defendant is 10 or more years older, is required to register, no matter what
form that sexual conduct may take? There is thus no group of people who commit this offense who are not required to register, unlike the Hofsheier situation, where oral cop was registrable but intercourse was not. Consequently, there is no group of "similarly situated" people who do not have to register.

Just to restate this, consensual sex or oral copulation with a 16-year old, no mandatory registration. Hugging a 15-year old with lewd intent, mandatory registration.

People v. Cavallaro; 2009 DJ DAR 14563; DJ, 10/8/09; C/A 6th