D.M.

I join fully in the opinion written by my colleague Justice Pollak, but write separately to comment on the consequences of our decision in light of the interplay between Penal Code section 4852.01 et seq. 1 (request for certificate of rehabilitation) and section 290.5, subdivision (a)(1) (certificate of rehabilitation; relief from duty to register). As Justice Pollak’s opinion makes clear, our Supreme Court’s decision in People v. Hofsheier (2006) 37 Cal.4th 1185 [ 39 Cal.Rptr.3d 821 , 129 P.3d 29 ] compels the conclusion we reach here today. Simply put, in light of Hofsheier , section 290.5, subdivision (a)(2)(N) is unconstitutional because it excludes those, like plaintiff, who have been convicted under section 288a, subdivision (b)(1) from being automatically relieved of the requirement to register once they receive a certificate of rehabilitation while similarly situated offenders who have been convicted under section 261.5 of felony unlawful sexual intercourse with a minor are automatically relieved of the requirement to register when they obtain such a certificate.

Accordingly, today we invalidate section 290.5, subdivision (a)(2)(N) and plaintiff is automatically relieved…

Plaintiff 1 appeals from an order denying his petition for writ of mandate seeking to be relieved of the duty to register as a sex offender under Penal Code section 290. 2 The registration requirement was imposed in 1987 because of his conviction for violating section 288a, subdivision (b)(1), oral copulation with a person 16 or 17 years of age. In 2002, plaintiff obtained a certificate of rehabilitation pursuant to section 4852.13, subdivision (a). In denying plaintiff’s petition for relief from the registration requirement, the trial court agreed that People v. Hofsheier (2006) 37 Cal.4th 1185 [ 39 Cal.Rptr.3d 821 , 129 P.3d 29 ] (Hofsheier) had invalidated the mandatory application of the registration requirement for the violation of section 288a, subdivision (b)(1), but despite uncontradicted evidence that plaintiff is unlikely to reoffend, exercised its discretion to impose a lifetime registration requirement under section 290.006.

In the trial court and in his opening brief on appeal, plaintiff’s principal contention was that the court should not, in the proper exercise of its discretion, order him to register under section 290.006 because there is no substantial…