Opinion Bank # O-258 (Re: F 18.56 n8 Registration Of Sex Offender: Requirement Of Registration For Non-Forcible Oral Copulation With Minors Violates Equal Protection].)
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SEE DISSENTING OPINION
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H018080
Santa Clara County
Plaintiff and Appellant, Super.Ct.No. 199219
ABELARDO NAYA FELARCA,
Defendant and Respondent.
Defendant Abelardo Felarca pled guilty to unlawful sexual intercourse with a person under 16 (Former Pen. Code, § 261.5, subd. (d)) [Footnote 1] and oral copulation with a person under 16 (§ 288(a) subd. (b)(2)). The trial court sentenced defendant to two years in state prison. We agree with the People’s contention on appeal that the trial court erred in finding that sex offender registration under section 290 constituted cruel and unusual punishment as applied to defendant. However, we affirm, because section 290 violates defendant’s right to equal protection of the law.
Statement of Facts
At approximately 11:20 p.m. on April 2, 1997, Officer Kevin Corvin observed a car in the parking lot of Cardoza Park. He asked the four occupants to exit the vehicle and they did so. The occupants were 14-year-old Jane Doe # 1, 14-year-old Jane Doe #2, 19-year-old Hernando Placheta, and 28-year-old defendant.
Defendant was not wearing a shirt and he appeared to be pulling up his pants as he exited the car, Plancheta’s pants were unzipped and unfastened and his belt was undone. Though both girls were dressed, Corvin observed a bra, a pair of women’s underpants, and a moist washcloth.
Jane Doe #2 had met defendant through Jane Doe #1 about a month earlier. She considered him her boyfriend, She knew he was 28 years old and he knew she was 14. On the night of April 2, 1997, Jane Doe #2 orally copulated defendant and engaged in sexual intercourse with him. She also acknowledged that they had had sexual intercourse on three or four previous occasions.
Prior to sentencing, defendant filed a motion in which he sought a declaration that sex registration would constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article 1, section 17 of the California Constitution,
The trial court held an evidentiary hearing at which Jane Doe #2 and defendant testified. She testified that her relationship with defendant had not affected her life or her relationship with her family and that she considered defendant a friend . She also testified that she did not consider it wrong for defendant to have had sex with her and she did not think that he should be sentenced to prison. Defendant testified regarding the incident. He also acknowledged wrongdoing and expressed his feelings of shame and embarrassment.
Following the hearing, the trial court granted the motion. It stated: “I am satisfied that [defendant] should not have to register. There is no evidence of his being a predator or pedophile. I feel he’s no danger to society once he’s released. There was no violence. There was no seeking out, and — and I find requiring him to register under [section] 290 would in fact be cruel and unusual punishment, and I decline to require that.”
The People contend that sex registration pursuant to section 290 [Footnote 2] is not cruel and unusual punishment where an individual has been convicted of two felony sex offenses, including oral copulation of a person under 16 (§ 288a, subd. (b)(2)). [Footnote 3]
The proscription against cruel and unusual punishment is violated when a penalty is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) “Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (Id. at pp. 423-424.)
A defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)
The California Supreme Court has “identified three techniques used by the courts to focus the inquiry: (1) an examination of ‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society’; (2) a comparison of the challenged penalty with those imposed in the same jurisdiction for more serious crimes; and (3) a comparison of the challenged penalty with those imposed for the same offense in different jurisdictions.” (Ln re Reed (1983) 33 Cal.3d 914, 923, quoting In re Lynch, supra, 8 Cal.3d 410, 425-429.)
“The trial judge is uniquely suited to do the kind of balancing of the factors
[in determining whether a given punishment is disproportionate to the offense]. It
is the trial judge who observes the witnesses, determines their credibility, and
weighs the evidence. Thus, he has a first-hand opportunity to analyze the panoply of factors that must be considered in determining the offender’s ‘state of mind,’ ‘personal characteristics,’ and the degree of danger the offender poses to society.” (People v. Leigh (1985) 168 Cal.App.3d 217, 223.) However, “subject to a trial court’s findings of the underlying facts on substantial conflicting evidence, a trial court’s reduction of punishment under Dillon presents a question of law for an appellate court’s independent review, not a discretionary decision to which the appellate court must defer.” (People v. Mora (1995) 39 Cal.App.4th 607, 615,)
Here defendant, who was 28-years-old, committed two felony sex offenses with a 14-year-old girl. Though defendant did not use physical force against the victim, it cannot be said that she consented to these acts as part of a romantic relationship. (See, e.g., People v. Courtney (1960) 180 Cal.App.2d 61, 62 [a child has no legal capacity to consent to unlawful sex acts].) Under these circumstances, the sex registration requirement for defendant does not “shock the conscience and offend fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d 410, 424.) Accordingly, the trial court erred in declining to impose the sex registration requirement in the instant case.
However, it is a well settled principle of “appellate review that a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasoning.” (Green v. Superior Court (1985) 40 Cal.3d 126, 138-139.) Here the statute violates defendant’s constitutional right to equal protection.
Section 290 requires any person convicted of violating section 288a, subdivision (b)(2) to register as a sex offender. 290, subds. (a)(1)(A), (a)(2)(A).) Section 288a, subdivision (b)(2) provides that it is a felony for a person over the age of 21 to engage in an act of oral copulation with a person under the age of 16. [Footnote 4] A person convicted of this statute may not obtain relief from the registration requirement under any circumstances other than a “‘full pardon.” (§§ 290.5, subd. (b)(1), 290.4, subd. (a)(1).)
Former section 261.5, subdivision (d) provided that it was a crime for a person over the age of 21 to engage in an act of sexual intercourse with a person under the age of 16. [Footnote 5] Section 290 does not require a person convicted of violating section 261.5, subdivision (d) to register as a sex offender.
“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. It is often stated that [t]he 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. The use of the term ‘similarly situated’ in this context refers only to the fact that [t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714, internal quotation marks and citations omitted.)
Here the elements of section 288a, subdivision (b)(2) and section 261.5, subdivision (d) are identical except that one prohibits oral copulation and the other sexual intercourse. Both prohibit substantial sexual conduct with a minor under the age of 16. However, a violation of section 288a, subdivision (b)(2) requires sex offender registration and a violation of section 261.5, subdivision (d) does not. In our view, the two groups of violators are sufficiently similar to merit some level of scrutiny in order to determine whether registration is justified for one group, but not the other.
In analyzing an equal protection challenge, the question of the appropriate standard of review turns on whether the interest affected by the distinction is one that is considered “fundamental.” (People v. Nguyen, supra 54 Cal.App.4th 705, 715-716.) “Where the right affected by the classification is not constitutionally protected, the classification need only be rationally related to a legitimate state purpose in order to withstand equal protection scrutiny.” (People v. Leung (1992) 5 Cal.App.4th 482, 494.)
Even assuming that requiring a person to register as a sex offender for the rest of his or her life does not affect that person’s “fundamental” or “constitutionally protected” rights, a distinction between the two statutes cannot be justified. The legislative purpose of section 290 is to assure that persons convicted of specified sex offenses “shall be readily available for police surveillance at all times. The Legislature has deemed such persons likely to commit similar offenses in the future and upon this basis the registration is required. [Citation.]” (People v. Mills (1978) 81 Cal.App.3d 171, 176.) Requiring those who engage in oral copulation with minors under 16 to register as sex offenders, but making no such requirement for those who engage in sexual intercourse with minors under 16 is a distinction without any rational support. Since the classification does not withstand equal protection scrutiny, the registration requirement for those who violate section 288a, subdivision (b)(2) must be stricken.
The People’s reliance on People v. Mills, supra, 81 Cal,App.3d 171, is misplaced, In Mills, the defendant was convicted of lewd and lascivious conduct on a child under the age of 14 (§ 288) after he attempted sexual intercourse with a seven-year-old-girl by means of threats and force. The defendant argued that his registration requirement denied him equal protection of the law, because some sex offenders were required to register and others were not. The Mills court rejected his argument by stating: “The fact there are some types of classes of sex offenses which are not made subject to registration does not per se require the finding there is a denial of equal protection. This may be based upon the legislative determination a particular type of offender does not recidivate or recidivates less; some offenses, although touching upon sexual acts, are not so directly concerned or related to the type of conduct which is repetitive, recidivist, in nature. In this final analysis, these are matters for consideration for the Legislature and should be addressed to that body.” (Id. at p. 181.) We agree with the Mills court that the Legislature could rationally draw distinctions between various sex offenders in determining which sex offenders must be required to register, because there are a wide variety of sex offenses. In contrast to Mills, the instant case presents a narrower question, that is, whether there is a rational basis for distinguishing between sex offenders who engage in substantial sexual conduct with minors under 16 on the ground that one class of offenders has engaged in oral copulation and the other has engaged in sexual intercourse. In our view, such a distinction is irrational.
The judgment is affirmed.
BAMATTRE-MANOUKLAN, J., Dissenting.
Defendant, age 28 at the time of the offenses, engaged in oral copulation and sexual intercourse with a 14-year-old girl, in violation of Penal Code section 288a, subdivision (b)(2)6 (oral copulation of a person under the age of 16 by a person over the age of 2 1) and former section 261.5, subdivision (d) (sexual intercourse with a person under the age of 16 by a person over the age of 21). He pled guilty to those charges and the trial court imposed a two-year prison term. Although a conviction of section 288a, subdivision (b)(2) results in mandatory sex offender registration pursuant to section 290, the trial court found that requiring defendant to register would constitute cruel and unusual punishment.
I agree with the majority’s conclusion that the trial court erred by finding that it would constitute cruel and unusual punishment to require defendant to register as a sex offender under section 290. However, I disagree with the majority’s conclusion that section 290 violates defendant’s right to equal protection of the law because it requires registration by persons convicted of section 288a, subdivision (b)(2) but not by persons convicted of former section 261.5, subdivision (d).
“The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classifications of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished. [Citation,]” (Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 659.)
Defendant has not asserted that the legislative classification at issue here involves a suspect classification or significantly infringes upon a fundamental right so that the “strict scrutiny” standard would apply; rather, in his supplemental brief addressing the equal protection issue, he concedes that the “rational basis” test applies. (See Adams v. Commission on Judicial Performance, supra, 8 Cal.4th at p. 659.) In applying the rational basis test, we determine whether the challenged classification is ” ‘ “rationally related to a legitimate governmental purpose.” ‘ ” (See id. at p. 660.)
Section 290 was upheld against an equal protection challenge in People v. Mills (1978) 81 Cal.App.3d 17 1. In Mills, the defendant was convicted of lewd and lascivious conduct on a child under the age of 14 (former § 288) and was required to register as a sex offender pursuant to section 290. The court rejected his argument that section 290 denied him equal protection of the law because it required registration by persons convicted of some sex offenses, including former section 288, but not by persons convicted of other sex offenses.
The Mills court explained that “[a] presumption of constitutionality attends
on Penal Code section 290″ and that the validity of a statute ” ‘will not be questioned “unless [its] unconstitutionality clearly, positively, and unmistakably appears.” ‘ [Citation.]” (People v. Mills, supra, 81 Cal.App.3d at p. 176.) The court further explained that “[c]ourts should tread lightly when approaching the ‘que province of the Legislature, such as “[t]he definition of matters within the unique province of the Legislature,” such as “[t]he definition of crime and the determination of punishment. . . .” (Id. at pp. 176-177.)
The Mills court noted that although section 290 requires registration by persons convicted of some sex offenses but not by persons convicted of other sex offenses it is up to the Legislature “to determine the different degrees of gravity, of danger, to society from various types of sex offenses.” (id. at p. 180.) The court explained that the Legislature’s decision not to make certain sex offenses subject to registration “may be based upon the legislative determination a particular type of offender does not recidivate or recidivates less; some offenses, although touching upon sexual acts, are not so directly concerned or related to the type of conduct which is repetitive, recidivist, in nature.” (Id. at p. 181.)
The Mills court rejected as “unsubstantiated” the defendant’s claim that his offense had a low rate of recidivism, explaining: “[T]his is a disputable assertion best left with the Legislature for determination.” (Id. at p. 180.) The court concluded: “[T]here is a rational basis for Penal Code section 290; to wit: a legitimate state interest in controlling crime and preventing recidivism by sex
offenders. The fact all persons who in any way touch upon a violation of sexual
mores or behavior are not included would indicate inferentially a legislative distinction is drawn. Mills does not carry his burden to establish the lack of rational relationship at least as to people who violate Penal Code section 288 and are thereby required to register.” (Id. at p. 181.)
Mills makes it clear that defendant has the burden of showing that there is no rational basis for the legislative determination that persons who violate section 289a, subdivision (b)(2) (oral copulation of a person under the age of 16 by a person over the age of 21) are likely to be recidivists and should be required to register as sex offenders under section 290. Here, I would conclude that there is nothing in the record before us to support defendant’s claim that requiring registration of persons convicted of section 288, subdivision (b)(2) is not rationally related to the legitimate state interest served by section 290: to assure ‘that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.’ [Citations.]” (In re Reed (1983)33 Cal.3d 914, 919; see also Wright v. Superior Court (1997) 15 Cal.4th 521, 527. I would therefore conclude that defendant “does not carry his burden” (People v. Mills, supra, 81 Cal.App.3d at p. 181) and that section 290 does not violate defendant’s right to equal protection of the law.
BAMATTRE-MANOUKIAN, Acting P.J.
Footnote 1: All further statutory references are to the Penal Code.
Footnote 2: Section 290 states in relevant part: “(a)(1)(A) Every person described in paragraph (2), for the rest of her life while residing in . . . California, shall be required to register with the chief of police of the city in which he or she is residing, . . . within five working days of coming into… any city, county, or city and county . . . in which he or she temporarily resides…. [¶] (a)(2) The following persons shall be required to register pursuant to paragraph (1): [¶] (A) Any person who, since July 1, 1944, has been or is hereafter convicted ‘in any court in this state or in any federal or military court of a violation of Section … 288a . . .”
Footnote 3: The issue of whether registration for sex offenders constitutes Punishment is currently under review in the California Supreme Court. (See People v. Castellanos, S064388, [the issue is whether the “catch-all” provisions of section 290, subdivision (a)(2)(E) constitute an ex post facto law as applied to one whose conviction preceded the enactment of those provisions].)
Footnote 4: The punishment for this offense is a state prison term of 16 months or two or three years.
Footnote 5: Effective January 1, 1999, § subdivision applied to perpetrators aged 21 in addition to those over the age of 21. (§ 261.5, subd. (d).) A violation of section 261.5, subdivision (d) is a wobbler, but the applicable prison term, if a prison term is chosen, is two, three or four years, (§ 261.5, subd. (d).)
Footnote 6: All further section references are to the Penal Code.