9-9-2008 California:
P. v. Hernandez, No. B203151
In conviction for oral copulation with a person under the age of 16, denial of criminal defendant's motion to terminate the mandatory, lifetime requirement that he register as a sex offender is reversed and remanded where: 1) this appeal is cognizable without a certificate of probable cause; and 2) the mandatory sex offender statute is unconstitutional as applied to section 288a, subdivision (b)(2).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE -v- JAMES HERNANDEZ,
B203151 (Los Angeles County, Super. Ct. No. KA051799)
In 2001, James Hernandez was convicted of oral copulation with a person under the age of 16 (§ 288a, subd. (b)(2)) upon a plea of no contest. The trial court placed him on five years’ probation subject to 270 days in county jail and ordered him to register as a sex offender under section 290, subdivision (a)(1)(A). He appeals from an order denying his 2007 motion seeking to terminate the mandatory, lifetime requirement that he register as a sex offender. Appellant contends that that requirement violates equal protection under the state and federal Constitutions when applied to convictions of section 288a, subdivision (b)(2). Respondent contends that we should dismiss this appeal because appellant has failed to obtain a certificate of probable cause pursuant to section 1237.5.
We reverse and remand with directions.
The order appealed from is reversed. On remand, the trial court is directed to remove the requirement appellant register as a sex offender pursuant to subdivision (a)(1)(A) of section 290, and to determine whether appellant is subject to discretionary registration pursuant to subdivision (a)(2)(E) of section 290, and, if so, to exercise its discretion whether to require defendant to register under that provision.
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