Johnson v. Super. Ct.

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Filed 1/31/13 Johnson v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JAMES RICHARD JOHNSON,
Petitioner and Appellant,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest and
Respondent.
E055194
(Super.Ct.No. CIVDS1105422)
OPINION
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.
Reversed with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District
Attorney, for Real Party in Interest and Respondents.

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I
INTRODUCTION
Petitioner James Richard Johnson seeks to be relieved of the requirement to
register as a sex offender under Penal Code section 290 et seq.1 We agree that the trial
court erred in denying his petition for writ of mandate. Accordingly, we reverse the
judgment and direct the trial court to conduct a new hearing to determine whether the
discretionary registration requirement should be applied to him.
II
FACTUAL AND PROCEDURAL BACKGROUND
In 1990, Johnson pleaded guilty to a violation of section 288a, subdivision (b)(2),
oral copulation of a person under 16 years of age by a person over the age of 21.2
In 2011, Johnson filed a petition for writ of mandate based on People v. Hofsheier
(2006) 37 Cal.4th 1185 (Hofsheier), contending that the mandatory registration
requirement for the section 288a, subdivision (b)(2), conviction violates equal protection.
He further argued that the court should not require discretionary registration in his case.
He asserted that he “has not, in the twenty years since his conviction in 1990, committed
any offenses that would otherwise require him to register as a sex offender.”
The trial court noted a conflict in the Courts of Appeal about whether Hofsheier
applies to section 288a, subdivision (b)(2), convictions. The trial court believed the
1 All statutory references are to the Penal Code unless stated otherwise.
2 The offense was committed between September and December 1988.
Defendant was born in April 1961, making him 27 years old when the crime occurred.

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decision in People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel) was controlling
and denied the petition for mandate.
III
DISCUSSION
In Hofsheier, supra, 37 Cal.4th 1185, the California Supreme Court held that
imposition of mandatory lifetime sex registration on a defendant convicted of a violation
of section 288a, subdivision (b)(1), for voluntary oral copulation with a 16- or 17-year-
old minor violated equal protection because a defendant convicted of engaging in sexual
intercourse with such a minor under section 261.5 was not subject to the mandatory
requirement. (Hofsheier, at pp. 1206-1207.) The Supreme Court explained that persons
convicted of the two offenses were similarly situated, and there were no rational grounds
for treating them differently. (See People v. Garcia (2008) 161 Cal.App.4th 475, 481
(Garcia), overruled on another ground by People v. Picklesimer (2010) 48 Cal.4th 330,
338, fn. 4 (Picklesimer).) In determining the appropriate remedy, the court rejected the
option of declaring the mandatory lifetime registration provisions invalid. It also refused
the other option of extending the mandatory requirement to persons convicted of
unlawful intercourse under section 261.5. The Garcia court concluded that “where
mandatory registration violates the equal protection clause, the proper remedy is to hold a
hearing to determine whether the defendant should be subject to discretionary registration
as a sex offender under former subdivision (a)(2)(E) of section 290. [Citation.]”
(Garcia, at pp. 478-479; see also Hofsheier, at pp. 1208-1209.)

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Hofsheier has been applied to convictions for other crimes subject to mandatory
registration, including convictions under section 288a, subdivision (b)(2). (Garcia,
supra, 161 Cal.App.4th 475.) The court in Manchel, supra, 163 Cal.App.4th 1108, came
to a contrary result where, as here, the defendant was 10 years older than the victim who
was under age 16. The court noted that the defendant could have been prosecuted under
section 288, subdivision (c), and, therefore, subject to mandatory registration whether he
engaged in oral copulation or sexual intercourse with the victim. The court reasoned that
because the defendant‟s sexual conduct fell within statutes that provide for mandatory
registration, he could not establish that he was similarly situated to another group of
offenders who were not subject to mandatory sex offender registration. (Manchel, at p.
1115.) Thus, the order requiring him to register as a sex offender did not violate the
equal protection clause. (Ibid.)
Subsequent case law criticizes Manchel for improperly basing its decision on the
fact that the defendant could have been convicted of a section 288, subdivision (c)(1),
crime (lewd acts involving a child 14 or 15 years old), when the defendant actually pled
guilty to violating section 288a, subdivision (b)(2). (People v. Luansing (2009) 176
Cal.App.4th 676; People v. Ranscht (2009) 173 Cal.App.4th 1369.) We agree with that
criticism. Manchel “would have us completely ignore the crime of which a defendant is
convicted and look instead to all of the crimes of which a defendant could have been
convicted based on his conduct. This holding overlooks Hofsheier‟s plain language,
which focused on „persons who are convicted of voluntary oral copulation . . . , as
opposed to those who are convicted of voluntary intercourse with adolescents in [the]

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same age group.‟ [Citation.] [¶] Consistent with Hofsheier, we think the more
appropriate course is to focus on the offense of which the defendant was convicted, as
opposed to a hypothetical offense of which the defendant could have been convicted
based on the conduct underlying the charge. „This approach jibes with the mandatory
registration statutes themselves, which are triggered by certain convictions . . . , and not
by the underlying conduct of those offenses per se.‟ [Citations.]” (Ranscht, at pp. 1374-
1375.)
For these reasons, we reject the reasoning of Manchel and conclude that subjecting
defendant to mandatory sex offender registration violated his equal protection rights.
This court‟s opinion in People v. Alvarado (2010) 187 Cal.App.4th 72, 76-79 [Fourth
Dist., Div. Two], is distinguishable because it involves a conviction under section 288,
not section 288a, a distinction other courts have recognized. (See People v. Tuck (2012)
204 Cal.App.4th 724, 738-739.)
While petitioner is not subject to the mandatory registration requirement, he has
not established a right to relief from registration as a matter of law because he may be
subject to discretionary registration under section 290.006. The trial court must
reconsider this matter and conduct a new hearing to determine whether the defendant
must continue to register as a sex offender. (Picklesimer, supra, 48 Cal.4th at pp. 336-
341, 343; see also Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 77-78.) To
require registration under this statute, “the trial court must engage in a two-step process:
(1) it must find whether the offense was committed as a result of sexual compulsion or
for purposes of sexual gratification, and state the reasons for these findings; and (2) it

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must state the reasons for requiring lifetime registration as a sex offender. By requiring a
separate statement of reasons for requiring registration even if the trial court finds the
offense was committed as a result of sexual compulsion or for purposes of sexual
gratification, the statute gives the trial court discretion to weigh the reasons for and
against registration in each particular case.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) In
exercising its discretion, the trial court‟s focus is to determine based on all relevant
information whether petitioner is likely to commit such offenses in the future. (Lewis v.
Superior Court, supra, 169 Cal.App.4th at pp. 78-79.)
III
DISPOSITION
We reverse the judgment of the superior court denying defendant‟s petition for
writ of mandate and we remand for the court to conduct a new hearing to determine
whether petitioner is subject to the registration requirement under section 290.006.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
KING
J.

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