What is a Hofsheier motion? (California PC 290)

If you are charged with a sex offense in California, one of the most devastating consequences upon a conviction is a requirement that you may have to register as a sex offender for the rest of your life.

For most sex crimes, the court must impose this requirement. However, for certain unlawful but unforced sexual acts involving a minor over a certain age, you may be able to have this mandatory duty relieved by filing what is commonly referred to as a Hofsheier motion.

A Hofsheier motion is based on a California Supreme Court decision that said imposition of a mandatory registration requirement pursuant to PC 290 was an unconstitutional violation of equal protection for a 22-year-old defendant who participated in an unlawful, but voluntary act of oral copulation with a minor who was 16.

Our attorneys at Wallin & Klarich want to share with you when and how you may be able to be relieved of sex offender registration in some cases, whether you currently register as a sex offender for a past conviction or are facing registration in a pending case.

People v. Hofsheier 37 Cal.4th 1185 (2006)

In 2003, Vincent Hofsheier participated in a voluntary act of oral copulation (Penal Code Section 288a (b)(1)) with a 16-year-old girl. He pled guilty to a felony charge, which carried mandatory sex offender registration as one of the consequences of the conviction.

The defendant appealed his case and the California Supreme Court granted review in 2006. Hofsheier contended that he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (Penal Code Section 261.5) under the same circumstances would not be subject to mandatory registration.

The court agreed and returned the case back to the original trial court to remove the mandatory registration requirement and exercise its discretion to determine whether Hofsheier should be required to register as a sex offender.

Since the Hofsheier case was decided, California courts have also determined that mandatory sex offender registration is an equal protection violation for other unlawful, but voluntary sexual activities with a minor including sodomy (Penal Code Section 286 (b)) and sexual penetration with a foreign object (Penal Code Section 289 (h) and (i)).

When Can You Apply Hofsheier Reasoning?

Sexual activity with a child under the age of 14 is usually charged as lewd and lascivious acts with a minor (or “child molestation”) pursuant to Penal Code Section 288. Child molestation is always considered a violent crime in California and therefore it is a mandatory registerable sex offense.

However, if you are facing charges or have already been convicted of an unforced sexual act with a minor at least 14 years of age or older, you may be able to challenge a mandatory imposition of lifetime sex offender registration.

A motion using Hofsheier reasoning has been pursued in a number of cases for a variety of unforced sex crimes involving minors, including:

• People v. Hofsheier (2006): Participating in oral copulation with a minor under 18 (Penal Code 288a (b)(1))

• People v. Garcia (2008): Participating in oral copulation with a victim under the age of 16, offender 21 years of age or older (Penal Code 288a (b)(2));

• People v. Thompson (2009): Participating in sodomy with a minor under the age of 18 (Pena Code 286 (b)(1));

• People v. Boyette (2010): Participating in sodomy with a victim under the age of 16, offender 21 years of age or older (Penal Code 286 (b)(2));

• People v. Ranscht (2009): Participating in sexual penetration using a foreign object with a minor under 18 (Penal Code 289 (i));

• People v. Gomez (2011): Participating in sexual penetration using a foreign object with a victim under the age of 16, offender 21 years of age or older (Penal Code 289 (h)).

If your Hofsheier motion is successful, the court may then use its discretion to impose or not impose sex offender registration as a consequence of your conviction pursuant to Penal Code Section 290.006.

The court may impose a registration requirement in its discretion if it finds the underlying offense was committed “as a result of sexual compulsion or for the purposes of sexual gratification.” If the court does impose the requirement, it must state “the reasons for its finding and the reasons for requiring registration.”

However, the court is also permitted to relieve you of a sex offender registration requirement for the crimes listed above, depending on:

• Your age;
• The minor victim’s age;
• Whether or not you held a position of trust over the minor;
• The nature or duration of the relationship; and/or
• Other facts of the case.

What Can a Hofsheier Motion Do for You?

Quite simply, an experienced California criminal defense attorney may be able to negotiate the removal of any sex offender registration in your case involving voluntary sexual activity with a minor. In a successfully argued motion using Hofsheier reasoning, you could be relieved of a lifelong and humiliating stigma that may lead to:

• Your name, picture and address being publicly listed on California’s Megan’s Law website of convicted sex offenders;
• Being ordered to stay away from all children (including your own) while your are under community supervision;

  

• 24-hour-a-day satellite (GPS) monitoring while you are under community supervision;
• Being fired from your job;
• Difficulty maintaining meaningful employment in the future;
• Being forced to move out of your home;
• Serious restrictions on where you can live;
• Homelessness;
• Harassment; and
• Being banned from many public places.

Additionally, failing to register as a sex offender is a crime itself. Depending on your underlying sex offense conviction, you could be facing up to a one-year jail sentence upon a misdemeanor failure to register charge, or up to three years in prison if you are charged with felony failure to register.

If you have any strikes (serious or violent felonies) on your record pursuant to California’s Three Strikes Law, you could be risking substantially longer imprisonment.

Contact Wallin & Klarich Today to Seek Relief from Lifetime Sex Offender Registration

If you or someone you love is facing or must comply with mandatory sex offender registration for unlawful, but otherwise voluntary sexual activity with a minor 14 years of age or older, you should speak with an experienced criminal defense attorney from Wallin & Klarich today.

Our attorneys at Wallin & Klarich have over 30 years of experience successfully representing our clients seeking relief from the devastating and lifelong consequences of sex offender registration.

If you are eligible for relief from a mandatory sex offender registration requirement, our attorneys at Wallin & Klarich will aggressively argue that Hofsheier reasoning should apply in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our team of highly skilled sex crimes defense attorneys at Wallin & Klarich will use their persuasiveness to convince a court that you should not have this requirement imposed as a result of a conviction for a pending charge against you or for a past conviction. We will help you get the best result possible in your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.