Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, No. 09CRRP679441, Gary R. Orozco, Judge.
Real Lawyers at Affordable Prices and Eric H. Schweitzer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant, Marcell Jerome Rosno, appeals from the denial of his petition for rehabilitation, asserting the trial court’s interpretation of the statute under which he was seeking relief violated his constitutional rights to equal protection under the law. We conclude there was no constitutional violation and affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL SUMMARY
On April 15, 2009, Rosno filed a petition for a certificate of rehabilitation pursuant to Penal Code section 4852.01 et seq. He stated that he was convicted of violating section 288, subdivision (c)(1) (hereafter section 288(c)(1)), and was sentenced on May 29, 2001, to two years in prison. He was discharged upon completion of his sentence, but did not state the date of his discharge.
All further statutory references are to the Penal Code unless otherwise indicated.
Rosno contended that, although he was convicted of a violation of section 288(c)(1), he was similarly situated to a person convicted of violating section 261.5 under similar circumstances, and such a person would be eligible to apply for a certificate of rehabilitation seven years after discharge from prison. He argued that it would violate principles of equal protection to deny him eligibility for a certificate of rehabilitation when a person convicted of violating section 261.5 on similar facts would be eligible. The trial court rejected Rosno’s equal protection argument and denied his petition for a certificate of rehabilitation.
DISCUSSION
I. Section 288
Section 288(c)(1) makes it a felony or a misdemeanor for any person to willfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child of 14 or 15 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, when the person is at least 10 years older than the child. A person convicted of a violation of section 288(c)(1) is required to register with local law enforcement authorities as a sex offender for the rest of his life. (§ 290, subds. (b), (c).) As Rosno was convicted of one felony count of violation of section 288(c)(1) and was sentenced to prison, he was required to register pursuant to section 290.
A person who has been convicted of a felony, committed to a state prison, and released may seek a restoration of some of his civil rights by petitioning the trial court for a certificate of rehabilitation. (§§ 4852.01, 4852.06.) If the trial court finds the person has demonstrated his rehabilitation, it “may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. This order … shall be known as a certificate of rehabilitation.” (§ 4852.13, subd. (a).) A certified copy of the certificate is transmitted to the Governor and constitutes an application for a full pardon. (§ 4852.16.) In some cases, a person who is required to register under section 290 may be relieved of that obligation upon obtaining a certificate of rehabilitation (§ 290.5, subd. (a)(1).)
A person is eligible to file a petition for a certificate of rehabilitation if he has “live[d] an honest and upright life, ” “exhibit[ed] a good moral character, ” and “conform[ed] to and obey[ed] the laws of the land” for the minimum period of rehabilitation applicable to him. (§§ 4852.05, 4852.06.) The minimum period of rehabilitation is five years, plus another five years “in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to Section 290” (with some exceptions not applicable here); the period is five years, plus another two years for most other convictions. (§ 4852.03, subd. (a)(2), (3).) The rehabilitation period begins to run on discharge of the person from custody at the completion of his prison term. (§ 4852.03, subd. (a).) Due to an amendment of section 4852.01, however, after January 1, 1998, a person who has been convicted of a violation of section 288 is not eligible to apply for a certificate of rehabilitation. (§ 4852.01, subd. (d); People v. Ansell (2001) 25 Cal.4th 868, 880.)
Thus, a person convicted of a violation of section 288 is required to register as a sex offender for the rest of his life and may no longer petition the court for a certificate of rehabilitation.
Such a person may seek a pardon directly from the Governor without first obtaining a certificate of rehabilitation. (§ 4800 et seq.)
II. Section 261.5
Section 261.5 provides:
“(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age of 18 years and an ‘adult’ is a person who is at least 18 years of age. [¶]
“(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony.…
“(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony.…”
Section 261.5 is not listed among the offenses for which registration is required pursuant to section 290, subdivision (c), although the trial court may order a person who has been convicted of a violation of section 261.5 to register, if it finds “that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.” (§ 290.006.) A person convicted of a violation of section 261.5 is not convicted of an offense “for which sex offender registration is required pursuant to Section 290.” (§ 4852.03, subd. (a)(2).) Consequently, the rehabilitation period for such a person is five years, plus two years, as prescribed by section 4852.03, subdivision (a)(3). Such a person would be eligible to petition for a certificate of rehabilitation seven years after his discharge from prison.
III. Equal Protection
“‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier).) The second requirement is a showing that the classification adopted by the state and the resulting difference in treatment of the two groups bears no rational relationship to a legitimate state purpose. (Id. at pp. 1200-1201.) The classification will be upheld “‘“if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are ‘plausible reasons’ for [the classification] ‘our inquiry is at an end.’”’ [Citations.]” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 482.)
Rosno argues: “It is axiomatic that the conduct forbidden by Penal Code §288(c)(1) is no more dangerous, egregious or harmful than that prohibited by Penal Code §261.5. In both statutes, persons as young as 14 years of age can be the victim. In both statutes, age difference between the offender and the victim can be vast.” He suggests offenders under the two statutes are similarly situated, yet those convicted under section 288(c)(1) must register as sex offenders and are not eligible to obtain a certificate of rehabilitation, while those convicted under section 261.5 are not subject to mandatory registration and may petition for a certificate of rehabilitation after seven years. In support of his argument, he relies on Hofsheier and subsequent cases applying it.
A. Hofsheier
In Hofsheier, a 22-year-old defendant pled guilty to oral copulation with a 16-year-old girl, in violation of section 288a, subdivision (b)(1) (hereafter section 288a(b)(1)). (Hofsheier, supra, 37 Cal.4th at p. 1193.) Section 290 required him to register as a sex offender, and the trial court ordered that he do so. He appealed, contending the registration requirement violated his equal protection rights because a 22 year old who engaged in unlawful sexual intercourse with a 16 year old, in violation of section 261.5, would have been similarly situated, but would not have been subject to the mandatory registration requirement of section 290. The court agreed that the different treatment of similarly situated offenders denied the defendant equal protection, and it remanded to permit the trial court to determine whether discretionary registration under former section 290, subdivision (a)(2)(E) (now section 290.006) should be imposed. (Hofsheier, at p. 1193.)
The court noted that the defendant’s offense was voluntary, in the sense that the minor willingly participated, without threat, coercion, intoxication, or unconsciousness. (Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2.) The defendant was convicted under section 288a(b)(1), which prohibited “an act of oral copulation with another person who is under 18 years of age.” (Hofsheier, at p. 1194.) Other subdivisions of the same statute provided for greater punishment for involuntary acts and acts involving younger victims. (Ibid.) These included increased punishment for a person over 21 years of age who engaged in oral copulation with someone younger than 16 years of age (§ 288a, subd. (b)(2)); a person who engaged in oral copulation with someone under 14 and more than 10 years younger than the defendant (§ 288a, subd. (c)(1)); or a person who engaged in forcible or involuntary oral copulation (§ 288a, subds. (c)(2), (3), (f)). (Hofsheier, at pp. 1194-1195.) Additionally, section 288 provided felony punishments for “any lewd or lascivious act (including oral copulation) with a child under the age of 14.” (Hofsheier, at p. 1195.) The court concluded: “Consequently, section 288a(b)(1) functions as the primary offense (as opposed to being a lesser included offense) in only two instances: (1) when, as here, the act of oral copulation is voluntary and the victim is 16 or 17 years old; and (2) when the act is voluntary, the victim is 14 or 15 years old, and the perpetrator is not over 21 years old.” (Ibid.)
Section 261.5 also had a graduated scale of punishments, depending on the age of the minor victim or the relative ages of the victims and the offender. (Hofsheier, supra, 37 Cal.4th at p. 1195.) Other statutes provided still greater punishments for forcible or involuntary intercourse, including sections 261, 264, and 266c. (Hofsheier, at p. 1195.)
Violation of section 288a subjected the defendant to mandatory registration. (Hofsheier, supra, 37 Cal.4th at p. 1196.) A violation of section 261.5 would subject an offender only to discretionary registration. (Hofsheier, at p. 1197.) If the defendant “had engaged in voluntary sexual intercourse with a 16-year-old girl, instead of oral copulation, he would have been guilty of violating section 261.5, subdivision (c), but he would not face mandatory sex offender registration.” (Id. at p. 1195.) The only difference between the two offenses was the nature of the sexual act involved. (Id. at p. 1200.)
The court concluded persons convicted of oral copulation with minors under section 288a(b)(1) and persons convicted of sexual intercourse with minors under section 261.5 were sufficiently similarly situated to meet the first requirement for equal protection analysis. (Hofsheier, supra, 37 Cal.4th at p. 1200.) It found no rational basis for subjecting one group, but not the other, to mandatory lifetime registration. The empirical evidence submitted by the People did not support the distinction. (Id. at p. 1203.) The distinction could not be justified by the speculative possibility that section 288a(b)(1) offenders were more likely to reoffend than section 261.5 offenders. (Hofsheier, at p. 1204.) The court concluded:
“We perceive no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of ‘particularly incorrigible offenders’ [citation] who require lifetime surveillance as sex offenders. We therefore conclude that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions.” (Hofsheier, at pp. 1206-1207.)
The court invalidated the mandatory lifetime registration requirement for persons convicted of oral copulation under section 288a(b)(1) for engaging in voluntary oral copulation with 16- or 17-year-old minors. (Hofsheier, supra, 37 Cal.4th at p. 1208.)
B. Subsequent cases
In People v. Anderson (2008) 168 Cal.App.4th 135 (Anderson), the defendant was convicted of committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child (§ 288(c)(1)). On appeal, the defendant challenged the mandatory sex offender registration for his offense as a denial of equal protection, relying on Hofsheier. The court declined to extend Hofsheier to his offense. (Anderson, at p. 140.) Hofsheier’s holding was limited to mandatory registration under section 288a(b)(1) where the victim was 16 or 17 and participated voluntarily; Hofsheier noted other provisions provided for different treatment of offenders when the victim was younger or the act was committed by force or coercion. (Anderson, at pp. 141-142.) The Anderson court concluded:
“In this instance, we are dealing with mandatory registration based on a conviction under section 288(c)(1), i.e., committing a lewd act on a child who is 14 or 15 years old where the perpetrator is at least 10 years older than that child. Not only does that particular provision contain specific protection for minors of an age group younger than the victim involved in Hofsheier, it also (unlike § 288a) contains a specific intent requirement. And, unlike Hofsheier, there is no relevant similarly situated group for which mandatory registration is not required that may serve as the basis for an equal protection challenge here. An adult who is at least 10 years older than the victim who commits a sex offense of oral copulation on a 14- or 15-year-old minor victim may be charged with a violation of section 288(c)(1), just as defendant was charged in this case. Defendant’s group, contrary to his argument here, is not similarly situated with those convicted of voluntary oral copulation of a 16- or 17-year-old victim in violation of section 288a, subdivision (b)(1). Defendant’s equal protection challenge thus fails because he cannot establish that he, by virtue of his section 288(c)(1) conviction and the mandatory registration resulting therefrom, is subjected to unequal treatment because there is a similarly situated group for which no such mandatory registration is a consequence of the sex offense conviction.” (Anderson, at pp. 142-143.)
The court noted its decision also was supported by Hofsheier’s discussion of People v. Mills (1978) 81 Cal.App.3d 171 (Mills), in which the Hofsheier court explained that the “‘Legislature could reasonably require all persons convicted of sexual offenses involving victims under the age of 14 to register without requiring all sex offenders to register, ’” and agreed “‘the defendant [in Mills] failed to show a denial of equal protection as to adults convicted of lewd acts with minors less than 14 years of age because all adults convicted of crimes requiring sexual acts with minors of that age were required to register.’” (Anderson, supra, 168 Cal.App.4th at p. 143.)
In People v. Cavallaro (2009) 178 Cal.App.4th 103 (Cavallaro), the defendant pled no contest to committing lewd and lascivious acts with 14- and 15-year-old victims who were at least 10 years younger than the defendant, in violation of section 288(c)(1). The trial court concluded, based on Hofsheier, that imposing mandatory registration on the defendant would violate equal protection. The People appealed; the court found the extension of Hofsheier to the defendant’s case was unwarranted and reversed. (Cavallaro, at p. 109.)
The defendant argued that a defendant convicted of oral copulation with a 14 or 15 year old under section 288(c)(1), which requires registration, is situated similarly to a person of the same age convicted of unlawful nonforcible sexual intercourse with a 14 or 15 year old under section 261.5, subdivision (d), which does not require registration. Therefore, he argued, Hofsheier applied and the registration requirement for a conviction of section 288(c)(1) denied him equal protection.
The court found his argument flawed for four reasons and concluded he was not similarly situated to the comparison group. (Cavallaro, supra, 178 Cal.App.4th at pp. 113-114.) First, section 288(c)(1) contains a specific intent requirement not applicable to a person convicted under section 261.5. (Cavallaro, supra, 178 Cal.App.4th at p. 114.) Second, section 288(c)(1), contains a threshold age requirement, not found in section 261.5, subdivision (d), that the defendant be at least 10 years older than the victim. (Cavallaro, at p. 114.) Third, the defendant’s victims were younger than the victim in Hofsheier; the protection of 14 and 15 year olds from significantly older adults may indicate a legislative intent to protect those minors from predatory older adults to the same extent children under 14 are protected by section 288, subdivision (a). (Cavallaro, at pp. 114-115.)
“Fourth, and perhaps most significantly, a person who engages in sexual intercourse with a 14 or 15 year old and who is also at least 10 years older than the minor may be convicted of a lewd or lascivious act under section 288(c)(1). [Citation.] Therefore, contrary to defendant’s position, he, as a person convicted under section 288(c)(1), is not similarly situated with a group of persons who are not subject to mandatory registration for the commission of sexual acts with minors of the same age as the victims here. Stated otherwise, had defendant had sexual intercourse with K. or S., he would still have been subject to prosecution under section 288(c)(1) for the commission of a lewd act, a crime for which sex offender registration is mandatory. Moreover, the fact that defendant-had he had sexual intercourse with the minor, K. or S.-could have been charged under section 261.5, subdivision (d), rather than under section 288(c)(1), does not suggest that mandatory registration based on his convictions under section 288(c)(1) constituted a violation of equal protection. In Hofsheier, the equal protection analysis hinged on the fact that the defendant-had he engaged in unlawful, nonforcible sexual intercourse with the 16-year-old girl instead of oral copulation-would have under no circumstances been subject to mandatory registration. [Citation.] That is not the case here.” (Cavallaro, at p. 115.)
The court concluded the defendant had not satisfied the first prerequisite of an equal protection challenge because he had not shown that the state adopted a classification that affected two or more similarly situated groups in an unequal manner. (Cavallaro, supra, 178 Cal.App.4th at p. 115.) Persons of the same age as the defendant, convicted of similar sex crimes, also were required to register as sex offenders, so he failed to establish the existence of a similarly situated group that received different treatment. (Ibid.)
Rosno cites People v. Garcia (2008) 161 Cal.App.4th 475 (Garcia), disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th 330, 338, footnote 4, in support of his position. In Garcia, the defendant pled guilty to oral copulation with a person under the age of 16 years by a person over the age of 21 years (§ 288a, subd. (b)(2)). He was required to register pursuant to section 290; his motion for relief from the registration requirement was denied and he appealed. Rejecting a narrow reading of Hofsheier, the court found the registration requirement denied the defendant equal protection. (Garcia, at pp. 481-482.) The court reasoned:
“A person over 21 convicted of oral copulation of a 14 year old in violation of section 288a, subdivision (b)(2), is subject to the mandatory registration requirements of section 290, subdivision (c) (§ 290, former subd. (a)(1)(A)). A person over 21 convicted of unlawful sexual intercourse with a 14 year old in violation of section 261.5 is subject to the discretionary registration requirements of section 290.006 (§ 290, former subd. (a)(2)(E)). If there is no rational reason for this disparate treatment when the victim is 16 years old, there can be no rational reason for the disparate treatment when the victim is even younger, 14 years old. Accordingly, Hofsheier applies whether the conviction is under subdivision (b)(2) or (b)(1) of section 288a.” (Garcia, at p. 482.)
We are not persuaded by Garcia’s very limited analysis. We think Anderson and Cavallaro were correctly decided and the registration requirement applicable to those convicted under section 288(c)(1) does not violate a defendant’s equal protection rights. The Hofsheier court narrowly defined the issue it decided: whether the registration requirement applicable to an adult offender convicted of a voluntary act of oral copulation with a minor 16 years or older under section 288a(b)(1) violated the equal protection clause, when an adult offender convicted of voluntary sexual intercourse with a minor 16 years or older was not subject to mandatory registration. (Hofsheier, supra, 37 Cal.4th at p. 1198.) It specifically noted: “We are not here concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse. (See §§ 264 [rape], 288 [lewd or lascivious acts with victim under the age of 14], 288a, subd. (c)(1) [oral copulation with a minor under 14 years of age], 288a, subd. (c)(2) [forcible oral copulation], 290, subd. (a)(2) [convictions requiring registration].)” (Ibid.) Thus, although section 261.5 does not impose mandatory registration on anyone convicted under that section, regardless of the age of the victim, the court indicated its analysis would not apply to cases involving sexual offenses against victims under 14 years old because offenders engaging in sexual intercourse with victims under 14 years old may be prosecuted under other statutes that do require registration, including section 288.
Section 288 penalizes lewd and lascivious acts committed against a minor 14 or 15 years old by a person more than 10 years older. (§288(c)(1).) Lewd and lascivious acts include sexual intercourse. (People v. Fox (2001) 93 Cal.App.4th 394, 399.) Consequently, an adult who engages in sexual intercourse with a minor 14 or 15 years old when the adult is at least 10 years older than the minor may be prosecuted pursuant to section 288(c)(1) and, if convicted, would be subject to the mandatory registration requirement imposed by section 290. This is unlike Hofsheier, where, if a person the same age as the defendant had engaged in sexual intercourse with a minor the same age as the victim, that defendant “would have under no circumstances been subject to mandatory registration.” (Cavallaro, supra, 178 Cal.App.4th at p. 115.)
We conclude Rosno has failed to show there is any relevant similarly situated group for which mandatory registration is not required that may serve as the basis for an equal protection challenge.
The People’s motion for judicial notice is denied. The matter that is the subject of the request is not relevant to the issues presented by this appeal. (People v. Curl (2009) 46 Cal.4th 339, 360, fn. 16 [only relevant matter may be judicially noticed].)
The order is affirmed.
WE CONCUR: GOMES, J., DAWSON, J.