CALIFORNIA PETITION FOR A WRIT OF MANDATE UNDER PEOPLE V. HOFSHEIER AND PEOPLE V. PICKLESIMER

Writ of Mandate - Sex Offender Registration — You should hire an experienced attorney to help you apply for a writ of mandate in order to relieve your obligation to register as a sex offender.

At Wallin & Klarich, our criminal defense attorneys collectively have decades of experience successfully helping people like you petition for a writ of mandate and apply to be relieved of their legal obligation to register as sex offenders as specified in California Penal Code section 290. Whether you reached this point by clicking through our guide, or because you simply wanted information about this area of law, we are here to help you to understand what a petition for a writ of mandate under People v. Hofsheier_[i] and People v. Picklesimer_[ii] is, and whether it might be used to help you stop registering as a sexual offender for good.

What Exactly Is A Writ Of Mandate in California?

A writ of mandate (Code of Civ. Proc., § 1084) is a court order that can be directed to any person or agency in California to make them do what the law requires them to do. (Code of Civ. Proc., § 1085.) If some person, corporation, state official or state office is not doing what the law requires them to do, a person affected by such inaction has the right to go to court and seek a “writ of mandate” and if the court agrees with the person seeking the writ, the court will order the applicable person or agency to, in essence, “follow the law.”

How Can A Writ Of Mandate Help Me To Stop Registering As A Sex Offender?

Writ of Mandate - CA Supreme Court — The People v Hofsheier case went all the way to the CA Supreme Court and became the stepping stone to the use of a writ of mandate in People v Picklesimer

We’ll answer that question by giving you some background on California’s sex offender registration laws and that background will help you understand the situation a little better. California law specifies a laundry list of crimes that require registration upon conviction. (Pen. Code, § 290(c).) Put simply, if you’re convicted of one of the crimes on the list, the judge is required by law to order you to register as a sex offender. That’s called “mandatory” registration. There is also what’s called “discretionary” registration as well.

Many people don’t realize that a criminal court judge can order a person convicted of ANY California crime to register as a sex offender – even if the crime itself is not a “sex crime.” (Pen. Code, § 290.006.) This means, technically, a judge could order a person convicted of a California DUI to register as a sexual offender if the judge “finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.” Not a likely finding for a DUI case, but then again, that’s why we said “technically.”

So, keeping this simple, there’s mandatory registration and discretionary registration. If you’re convicted of a crime on the “list” you must register as a sex offender. If you’re convicted of a crime that’s not on the “list,” it’s up to the judge’s discretion whether you should be required to register.

Enter here a man named Vincent Hofsheier. Mr. Hofsheier was a 22 year old man who engaged in an act of “voluntary” oral sex with a 16 year old girl. There was no force used by Mr. Hofsheier. That’s a violation of CaliforniaPenal Code section 288a(b)(1). Mr. Hofsheier was arrested and duly convicted of that charge. It just so happens that Penal Code section 288a(b)(1) is one of the crimes on the “list.” Mr. Hofsheier’s criminal defense lawyer pointed out that, while Penal Code section 288a(b)(1) IS indeed on the “list,” Penal Code section 261.5(c) is NOT on the list. Penal Code section 261.5(c) makes it a crime to have vaginal intercourse with an underage person.

Mr. Hofsheier’s lawyer pointed out that it is absurd that if a 22 year old engages in an act of vaginal intercourse with a 16 year old girl, the court has discretion to decide to not order him to register, but, if that same 22 year old engages in oral sex with that same 16 year old girl, the court has no discretion and must impose registration. Mr. Hofsheier’s lawyer argued that this violates provisions in both the U.S. Constitution and the California Constitution that require the law to treat people who are similarly situated equally. (U.S. Const. amend. XIV; Cal. Const. Art. I, § 7.) The California Supreme Court took up the case and sided with Mr. Hofsheier and his lawyer.

In 2006, the California Supreme Court issued a decision in Mr. Hofsheier’s case, finding that people convicted of violating laws preventing sexual intercourse with minors were similarly situated to people convicted of violating laws preventing oral sex with minors, and, thus, the Court ruled that this aspect ofCalifornia’s sex offender registration law was unconstitutional. The Court was careful to note that its ruling did not apply to people convicted of committing sex crimes by force or threat of force, or who committed “voluntary” sex acts on people under age 14. The Supreme Court sent the case back to the trial court so that a hearing could be held to decide whether Mr. Hofsheier should be required to register under the “discretionary” aspect of the sex offender registration law.

From that point forward, people convicted of engaging in “voluntary” sex acts (vaginal intercourse, sodomy, oral copulation or penetration with a foreign object) with a minor over 14 were given the right to have a hearing so the judge could decide whether to order registration or not.

We can anticipate your next question of course…

What does this mean for me?

Petition for a Writ of Mandate before the court — Given you meet certain requirements, you may have the ability to petition for a Writ of Mandate before the court

This is where the writ of mandate comes in. After the Court’s ruling in the Hofsheier case, people with older similar convictions started going back to court, and trial courts were confused about what to do with these cases and whether the people were entitled to any relief at that point – given that their cases were closed. Enter here Andrew Picklesimer.

In 1993, Mr. Picklesimer pleaded guilty to violations of Penal Code sections 261.5 (sexual intercourse with a minor), 288a(b)(1) (oral copulation with a minor), and 289(h) (sexual penetration of a minor) and was sentenced to four years four months in state prison. As an automatic consequence of the oral copulation and sexual penetration convictions, Mr. Picklesimer was required to register as a sex offender. Mr. Picklesimer completed his sentence and was released from custody. After the Court’s ruling in the Hofsheier case in 2006, Mr. Picklesimer went back to court and requested that he be relieved of his obligation to register as a sexual offender, and the court determined that it did not have jurisdiction to entertain his request.

The case found its way to the California Supreme Court and the Court ruled that the trial court did not have jurisdiction over a “motion” to be relieved from the obligation to register as a sex offender (which is what Mr. Picklesimer filed). The Supreme Court ruled that courts DO have jurisdiction over a “petition for a writ of mandate” in cases like Mr. Picklesimer’s. Accordingly, while the Court did dismiss Mr. Picklesimer’s appeal on a technicality for lack of jurisdiction, it did order that he could file a petition for writ of mandate in the future if he wanted to.

What this means for people with older convictions like Mr. Picklesimer and Mr. Hoffsheier suffered is that they have the ability to file a petition for a writ of mandate and have the court consider whether to exercise discretion to order them to register as sex offenders.

How Do I Know If A Writ Of Mandate Can Help Me?

There are certain things that would need to be looked at. First, a writ of the mandate will not help you at all if you were convicted of engaging in any sort of sex act with a person under age 14. So, for example, if you were convicted of violating Penal Code section 288(a) – lewd act with a minor under age 14, a writ of the mandate will not help you.

It also won’t help you if you were convicted of a crime involving the use of force or threats. The person you engaged in sexual conduct with had to “voluntarily” agree to the acts (as evidenced by the Penal Code section(s) you were convicted of) such that the acts would have been completely legal had the person been over 18 years of age. So, for example, if you were convicted of violating Penal Code section 261(a)(2) – rape by force, a writ of mandate won’t help you.

Also, a writ of mandate won’t help you if you’ve already had a hearing in court and the judge decided to exercise discretion and order you to register as a sexual offender. You don’t get two bites at the apple.

If the person you engaged in a sex act with was over 14 at the time, and there was no allegation that there was force involved, a writ of mandate might help you. Specific Penal Code sections that fit within this definition include 286(b)(1), 288(c)(1), 288a(b)(1), or 289(h). Once the writ is filed, the Court will set a hearing date, during which time the Court will consider whether to relieve you of your obligation to register as a sexual offender, or order you to continue registering.

If you have a hearing on your petition for a writ of mandate and the Court orders you to continue registering, or if you don’t qualify for a writ of mandate, understand that’s not necessarily the end of the process for you. You will likely have other options available, including possibly a “Certificate of Rehabilitation and Governor’s Pardon”; or “The ‘Traditional’ California Governor’s Pardon. If you haven’t already done so, try “Wallin & Klarich’s Guide To Relief From California Sex Offender Registration.” It will help you to learn more about what relief might be available to you in your case.

We Can Help You – Give Us A Call Today

Wallin & Klarich’s team of criminal defense attorneys have decades of combined experience in helping people just like you seek and obtain relief from sex offender registration, and we’re confident we can help you too.

_[i] Information on People v. Hofsheier retrieved from http://scocal.stanford.edu/opinion/people-v-hofsheier-33608

_[ii] Information on People v. Picklesimer retrieved from http://scocal.stanford.edu/opinion/people-v-picklesimer-33834