In re O'Connor
Filed 7/12/06 In re O'Connor CA4/1
Opinion following transfer
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re ROBERT LEWIS O'CONNOR on Habeas Corpus. | D048887 (San Diego County Super. Ct. Nos. SCD147941, SCD184666) |
By appeal (D046037) Robert Lewis O'Connor argued he was denied equal protection when the trial court concluded he was mandatorily required to register as a sex offender pursuant to Penal Code[1] section 290, subdivision (a)(1)(A), after his plea of guilty to section 288a, subdivision (b)(1), oral copulation of a person under age 18. This court dismissed that appeal based on O'Connor's failure to secure a certificate of probable cause. Our Supreme Court granted review and transferred the case to this court for reconsideration in light of People v. Hofsheier (2006) 37 Cal.4th 1185. Hofsheier, decided after our dismissal of O'Connor's appeal, concluded that those situated like him are denied equal protection when mandatorily required to register as a sex offender.
Asked to comment, the parties agree Hofsheier so holds and that O'Connor is not mandatorily required to register as a sex offender. The parties request the matter be remanded for the trial court to determine if registration should be discretionarily required pursuant to section 290, subdivision (a)(2)(E). (People v. Hofsheier, supra, 37 Cal.4th at p. 1208.)
To expedite the matter, the parties have agreed to treat O'Connor's opening brief as a petition for writ of habeas corpus seeking removal of his registration requirement and they have waived further briefing. There is no stipulation to an immediate issuance of the remittitur. Given the parties' concessions, we treat appellant's opening brief as a petition for writ of habeas corpus to eliminate the mandatory registration requirement. Because we conclude no useful purpose could reasonably be served by issuing an order to show cause or by plenary consideration of the matter (see People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7), we grant the relief requested.
DISPOSITION
The mandatory registration requirement is vacated and the matter is remanded to the trial court with directions to remove the requirement that O'Connor register as a sex offender under section 290, subdivision (a)(1)(A), and conduct further proceedings to determine whether O'Connor is subject to discretionary registration under subdivision
(a)(2)(E). The opinion is made final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
