Finding the “constitutional analysis faulty” in its own 2006 decision regarding the Sex Offender Registration Act, a 5-2 Supreme Court this morning overruled that case — People v. Hofsheier (2006) 37 Cal.4th 1185. The court had threatened to do just that more than a year ago. In Hofsheier, a 6-1 decision, the majority opinion was written by now-retired Justice Joyce Kennard and was signed by now-retired Chief Justice Ronald George, now-retired Justice Carlos Moreno, a pro tem Court of Appeal justice, and Justices Kathryn Werdegar and Ming Chin. Justice Marvin Baxter authored a dissenting opinion.
In today’s case — Johnson v. California Department of Justice — Justice Baxter, sitting by assignment after his recent retirement, writes the majority opinion that reverses the Court of Appeal (Fourth District, Division Two). Significantly, Justice Chin signs the opinion that overrules Hofsheier, in which he had concurred. The remainder of the majority is Chief Justice Tani Cantil-Sakauye, Justice Carol Corrigan, and a pro tem Court of Appeal justice. Justice Werdegar, joined by Justice Goodwin Liu, dissent. Concluding that “[a]dherence to stare decisis is not a rigid command, but in this instance it is the wiser course,” the dissent claims the majority “unnecessarily overrules” Hofsheier.
Hofsheier might not be dead yet, however. Should the defendant petition the court for rehearing, new Justices Mariano-Florentino Cuéllar and Leondra Kruger will rule on the petition in place of two justices in today’s majority — Justice Baxter and the pro tem justice. If Justices Cuéllar and Kruger join today’s dissenters, the court would rehear Johnson and might save Hofsheier. Under similar circumstances, the two new justices could cause a rehearing in People v. Grimes, in which a rehearing petition is currently pending.
