Senate Bill 145, which the Legislature has passed and sent to Governor Gavin Newsom, would eliminate some offenses for which a convicted defendant is required to register as a sex offender, but continue to leave registration in some non-mandated-registration cases to the superior court’s discretion.  The deleted offenses include non-forcible sodomy with a minor and oral copulation with a minor.

There’s a rather complex Supreme Court backstory to the legislation.  If the Governor signs the bill, it would in effect reverse one Supreme Court decision but codify another.  And the potentially reversed decision almost didn’t make it into the official reports.  Here’s what happened.

In People v. Hofsheier (2006) 37 Cal.4th 1185, a 6-1 court found an equal protection violation in a statute that mandated sex offender registration for a 22-year-old man who was guilty of non-forcible oral copulation with a 16-year-old girl but that didn’t require registration had the defendant been convicted of unlawful sexual intercourse with the minor.

Nine years later, the court overruled Hofsheier in Johnson v. Department of Justice (2015) 60 Cal.4th 871, finding no constitutional problem.  Justice Marvin Baxter, the lone Hofsheier dissenter, wrote the court’s opinion for a five-justice majority.  Justice Ming Chin concurred in Johnson, even though he had signed the court’s Hofsheier opinion.  Justice Kathryn Werdegar, who had also concurred in Johnson, dissented in Hofsheier and was joined by Justice Goodwin Liu.

Normally, the Johnson opinion would be the end of the story as far as the court was concerned.  But it almost wasn’t.  There were two vacancies on the court when Johnson was decided and the majority included two pro tem justices — Justice Baxter, who was sitting by assignment after his recent retirement, and a randomly assigned Court of Appeal justice.

Justices Mariano-Florentino Cuéllar and Leondra Kruger had joined the court just a few weeks before the Johnson opinion was filed and they were the ones — not Baxter and the Court of Appeal pro tem — who were to rule on the rehearing petition that the Johnson defendant filed.  That created the conditions for a possible “transition rehearing.”

If Cuéllar and Kruger voted with Werdegar and Liu, as I thought they would, Johnson would be reheard and Hofsheier might have been reinstated, obviating the need for SB 145.  But only Cuéllar voted for a rehearing and the Johnson opinion stood.

Justice Werdegar’s dissent in Johnson explained that the differentiation between offenses in the current statutory scheme is of significance to the LGBTQ community.  She said, “This discrimination does not rest on a rational ground of legislative distinction but is an anachronistic holdover from a period (before 1975, when California laws on consensual adult sex acts were liberalized) when oral copulation and sodomy were regarded as abhorrent sexual perversions closely associated with homosexuality and were therefore outlawed regardless of the participants’ ages.” (Johnson, supra, 60 Cal.4th at p. 890.)  Werdegar concluded, “by overruling Hofsheier, the majority reinstitutes a scheme that had a disproportionately adverse effect on gay and lesbian youth and unnecessarily saddled nonpredatory offenders of either sexual orientation with the stigma and restricted liberties attendant on sex offender registration.”  (Id. at p. 908.)

[September 12 update:  Governor Newsom signed SB 145 yesterday.]