Tuesday, March 16, 2010

CA Supreme Court: Sex Offender May Petition for Removal From Registry

metnews.com(Calif): Supreme Court: Sex Offender May Petition for Removal From Registry.

A person seeking to be removed from the sex offender registry based on a 2006 state Supreme Court ruling may seek that relief by writ petition, but not by post-judgment motion, the state Supreme Court ruled yesterday.

In a unanimous decision, the justices affirmed a Third District Court of Appeals ruling that a trial court has no jurisdiction to grant a motion to remove the lifetime sex offender registration requirement. But the high court expressly stated that a defendant seeking such relief may do so by petition for writ of mandate if he is no longer in custody and his appeals have been exhausted.

Justice Kathryn M. Werdegar, writing for the high court, said the Court of Appeal correctly dismissed former high school teacher Andrew Picklesimer’s appeal from the denial of his motion. She agreed that the trial judge was correct in ruling that he lacked jurisdiction because the defendant’s conviction became final long before the motion was filed.

Picklesimer has been subject to sex offender registration since 1993, when he entered into a plea bargain in Trinity Superior Court. Originally charged with offenses against two minors, he pled guilty to unlawful sexual intercourse, oral copulation, and digital penetration, all involving a 17-year-old girl.

Picklesimer raised only one issue on appeal, arguing that the separate sentences violated Penal Code Sec. 654, which prohibits multiple punishments for the same crime. The Court of Appeal disagreed, affirming in an unpublished opinion.

Years later, the state Supreme Court decided People v. Hofsheier (2006) 37 Cal.4th 1185, holding that mandating sex offender registration for all defendants convicted of oral copulation of a minor over the age of 16 was unconstitutional as a matter of equal protection because the crime is similar to unlawful sexual intercourse, as to which the trial court has discretion as to whether to require registration.

To remedy the violation, the high court declared that judges have discretion as to whether to require registration for those convicted of oral copulation.

The case is People v. Picklesimer,10 S.O.S. 1328 (.doc file). Download decision here.

"In People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier), we concluded imposition of mandatory lifetime sex offender registration on defendants convicted of violations of Penal Code section 288a, subdivision (b)(1) for voluntary oral copulation with a 16- or 17-year-old minor violated the state and federal equal protection clauses. Our decision resulted in the creation of a class of people, those convicted of violating section 288a, subdivision (b)(1) on or before the date of our decision, who potentially might be entitled to relief from mandatory lifetime registration but for whom the precise procedural method of asserting such a claim for relief was uncertain. We resolve that uncertainty here."

"We conclude that for those like defendant Andrew Nelson Picklesimer, who are no longer in custody and whose appeals are final, claims for Hofsheier relief — relief from mandatory lifetime sex offender registration based on equal protection — must be brought by way of a petition for writ of mandate in the trial court. A freestanding postjudgment motion for Hofsheier relief, such as the one Picklesimer filed, is not cognizable, as the trial court and Court of Appeal correctly concluded."

"A court may in its discretion treat such a postjudgment motion as a mislabeled petition for writ of mandate. In this case, however, for us to do so is not appropriate. This is because defendants who assert a claim for Hofsheier relief and establish a right to relief from mandatory sex offender registration may still be subject to discretionary registration under section 290.006, and the record before us does not conclusively establish that Picklesimer is exempt from discretionary registration and thus entitled to relief.
Accordingly, we affirm, without prejudice to Picklesimer’s ability to file a petition for writ of mandate in the trial court seeking Hofsheier relief."