Opinion
Defendant Fidencio Carillo Alvarado appeals from judgment entered following jury convictions for attempted lewd act on a child under 14 years old (Pen. Code, §§ 664, 288, subd. (a); 1 count 1); attempted dissuading of a witness (§ 136.1, subd. (b)(1); count 2); and misdemeanor lewd and unlawful exposure (§ 314, subd. 1; count 4). The trial court declared a mistrial as to counts 3 and 5 because the jury was unable to reach a verdict. The trial court also dismissed count 6, willful failure to appear while on bail (§ 1320.5). The court suspended imposition of sentence and placed defendant on probation for five years, subject to various terms and conditions.
Defendant contends the order requiring him to register as a sex offender violates his equal protection rights under the state and federal Constitutions. He also argues that section 4019, as amended, applies retroactively and therefore his presentence conduct credits must be recalculated under section *75 4019, as amended. Defendant further asserts that the trial court erred in imposing various fees and costs as conditions of probation. We agree that these challenged probation conditions must be modified. In all other respects, we affirm the judgment.
1. Facts
At night, about two weeks before J.M.’s 14th birthday, defendant approached J.M. as she was walking with her friend, E.M., home. Defendant drove up to J.M. and asked her if she wanted to have sex with him. When J.M. looked in defendant’s truck she saw defendant exposing his penis and stroking it. J.M. continued walking as defendant followed her. After J.M. went home, she told her grandmother about the incident.
The day before J.M.’s 14th birthday defendant again approached J.M. in his truck as she was walking E.M. home. Defendant called J.M. over and asked her to meet him to have sex with him. J.M. saw defendant exposing and stroking his penis again. When J.M. told defendant she was going to tell her grandmother, defendant said he knew where J.M. lived and told her not to tell the police or her parents. J.M. went home and, while hiding behind a bush, wrote down defendant’s license plate number as he drove down her street.
J.M. reported the incident to her grandmother and the police. The police located defendant in his truck and J.M. identified defendant. J.M.’s grandmother testified that about a week before defendant approached J.M., J.M.’s grandmother had shown defendant and another man one of her apartments that was for rent.
Defendant testified he had seen J.M. twice, including once when he and a friend went to J.M.’s apartment to look at an apartment J.M.’s grandmother was renting. After that, defendant saw J.M. two more times, including while he was driving down the street. Defendant claimed J.M. told him to stop and then ran up to his vehicle and asked where he was going. Defendant denied he exposed his penis. On another occasion, J.M. asked defendant to lower his window and she put her upper body in his truck. Defendant acknowledged that, after he was arrested, he told an officer he was attracted to J.M. and wanted to date her, but claimed he told the officer this because the officer was intimidating him.
*76 2. Mandatory Sex Offender Registration
Defendant is required under section 290 to register as a sex offender because he was convicted of violating section 288, subdivision (a) 2 (attempted lewd acts on a child under 14 years old) and section 314, subdivision 1 (lewd exposure).
Defendant contends that he was denied equal protection of the laws under the federal and state Constitutions because sex offender registration is mandatory for his convictions, whereas it is discretionary for a section 261.5 conviction (unlawful intercourse with a minor). Defendant complains that persons convicted of committing or attempting to commit section 288(a) and section 314 offenses are similarly situated to those who commit a section 261.5 offense, yet they are treated differently.
The constitutional guaranty of equal protection of the laws under the federal and state Constitutions “ ‘compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ”
(In re Gary W.
(1971)
Defendant’s reliance on
Hofsheier,
supra,
*77
The California Supreme Court held, in accord with the decision of the Court of Appeal, “that to subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws.”
(Hofsheier, supra,
The instant case is distinguishable from Hofsheier in that the victim in the instant case was under the age of 14 years, the defendant was over 20 years older than the victim, and the convictions were for attempting to commit a lewd act on a child under 14 years old (§ 288(a)) and for lewd exposure in a public place (§ 314, subd. 1). These crimes are not substantially similar to a section 261.5 offense.
Defendant’s section 288(a) conviction involves preying on young, vulnerable children, and therefore there is a valid reason for requiring mandatory sex offender registration as to a section 288(a) conviction. On the other hand, convictions for violating sections 261.5 and 288a, subdivision (b)(1) can involve victims older than 14. As to older victims, the trial court may find that the offense is not sufficiently egregious and the offender is not sufficiently dangerous to society, particularly to young children, to warrant mandatory sex offender registration for all section 261.5 and section 288a, subdivision (b)(1) convictions.
As the court notes in
Hofsheier, supra,
In
People v. Manchel
(2008)
Subsequent case law criticizes
Manchel, supra,
As the court in
People v. Anderson
(2008)
The Anderson court further explained: “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 *79 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, supra, 168 Cal.App.4th at pp. 142-143.)
Likewise, here, there is no equal protection violation in imposing mandatory registration for defendant’s attempted section 288(a) conviction. Defendant fails to establish any similar crime in which mandatory registration is not required. Defendant has not shown that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.
(Hofsheier, supra,
We further conclude mandatory sex registration, as opposed to discretionary registration, for a section 288(a) offense is rationally related to a legitimate state purpose since, unlike a section 261.5 offense, a section 288(a) offense is limited to victims under the age of 14 years, who tend to be more vulnerable to being preyed upon by sexual predators than older children, and the offense requires a finding that, when the perpetrator committed the lewd act, he or she possessed specific intent “to arouse or gratify the sexual desires of either the perpetrator or the victim. [Citation.]”
(People v. Lopez
(1998)
3.-5. *
6. Disposition
Probation conditions Nos. 20 and 21 are modified to delete the requirement that defendant pay, as conditions of probation, the following fees and costs; (1) a court security fee (§ 1465.8); (2) the cost of a presentence report (§ 1203.1b); and (3) a probation supervision fee. However, the order that defendant pay such fees and costs is affirmed as an order entered as a part of *80 the judgment, separate and apart from the conditions of probation. In all other respects, the judgment is affirmed.
Richli, J., and Miller, J., concurred.
On August 30, 2010, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied December 1, 2010, SI86944.