*1 Aug. H022634. Sixth Dist. [No. 2002.] PEOPLE,
THE Plaintiff Respondent, JONES,
MARK EDWARDS Defendant and Appellant.
Cоunsel Couenhoven, for Defendant Appeal, Court of under appointment Paul and Appellant.
Bill General, Lockyer, Anderson, Attorney Robert R. Chief Assistant General, Attorney Bass, Ronald A. General, Assistant Rene Attorney A. Billeter, Chacon and Bridget General, Deputy for Plaintiff Attorneys Respondent.
Opinion BAMATTRE-MANOUKIAN, P. J. Acting Defendant Mark Edwards Jones pled guilty failing to as a Code, 290, sex offender (Pen. § subd. (g)(2)).1 He also admitted that he had suffered one “strike” prior conviction (§§ subds. (b)-(i), 1170.12) and had served three prior prison terms (§ subd. He was (b)). sentenced to a term of prison four years. *4 On defendant appeal, contends the trial court abused its discretion when it refused to strike his section 290 conviction on the that the ground sex offender registration requirement violates the state and federal constitutional guarantees of equal protection. Const., (U.S. Amend.; 14th Const., I, Cal. art. §7.)
We conclude that defendant failed to show that the Legislature had no rational basis for requiring persons 288a, convicted of section violating subdivision (b)(1) (oral with a copulation under the person age 18) as sex register Therefore, offenders under section 290. the statute does not offend equal as protection defendant, applied and the trial court did not abuse its discretion in declining dismiss defendant’s current conviction. We will affirm the judgment.
I. Facts 1993, defendant was convicted of unlawful sexual intercourse with a 261.5, under age subd. and oral with a (§ (a)) copulation 288a, under the of 18 subd. to defendant’s motion (§ Accоrding (b)(1)). to dismiss the “strike” discretion as an exercise of the trial court’s 85,2 section 13 the two convictions stemmed from a nine-month con- prior sensual years with a when defendant was 23 relationship 15-year-old girl 1Unspecified section references are to Penal Code. 789, Superior (Romero) 2See Court 13 Cal.4th P.2d 628]. conviction, old. Because of defendant 290, a sex register (§ (a).)3 was as offender. subd. 1998, after convicted of several being
In March defendant was imprisoned 17, 2000, on he was released counts of narcotics. On possessing April 18, 2000, his duty On defendant’s informed him of April parole agent parole. days. as a sex offender within five register informed the Felony On office Sexual Assault May parole sex had failed to as a rеgister Enforcement Task Force defendant as his to his release from defendant had provided offender. Prior prison, wife, of his Lisa Bradlau. Officers contacted intended address address Bradlau, her, that was not said defendant was not with living who so, Monterey do and that she had seen him earlier in the week on welcome to saw surveyed San Avenue. Officers who that area Highway near Jose arrest, Upon enter room No. 133 of Whitehouse Inn Motel. his defendant sex he did defendant said he had not as a offender because registered an have address. information, as a
Defendant was failing charged, information had that defendant offender subd. (g)(2)). alleged (§ served subds. and had (b)-(i), 1170.12) one “strike” conviction (§§667, pled three terms subd. Defendаnt prior (§ (b)). guilty prison *5 the of to as a sex offender and admitted register substantive charge failing special allegations. the as an then that the trial court dismiss “strike” requested
Defendant pursuant People Superior exercise under section 1385 to of discretion se asking Cal.4th He also filed a (Romero), supra, pro request Court 497. his section the trial to exercise its section 1385 discretion to dismiss court on the that the sex offender ground registration requirement 290 conviction (2), in for “(a)(1)(A) Every person paragraph in part: 3Section states relevant described in, residence, or, residing life if he or she no while located the rest of his or her while has California, California, working in attending or in as described within or while school register police city be the chief of the in which subparagraph (G), required shall of located, residence, county if the sheriff residing, she is if he or she has no is or or or residence, located, or unincorporated if no is in an area residing, he or is or he or she has she and, police campus of department, additionally, with the chief of of a city police that has no California, University, community college if he or or University California State residence, its campus any in upon if he or no is located or residing, she is or she has into, facilities, or coming changing or his or her residence working days within five within, in she city, county, city county, campus which he or any or or location residence, resides, or, . . temporarily if has no is located. . he or she [Ü] (1): “(a)(2) following persons pursuant paragraph be The shall who, in any in court (A) Any July been or is hereafter convicted since has [U] . . . .” any military court a violation . . Section . . 288a . this state or in federal or of. violated his law. Defendant argued that section 290 is unconstitutional because it requires person convicted of violating section register as a sex offender but does not require registration of a person convicted of violating subdivision (a).
The trial court its explained reasoning defendant’s denying motion as follows: “There’s one concern glaring legal are not you necessarily to know. expected You do a lot of place on the emphasis Felarca District.[4] case from our own Sixth You do out that properly point that has been ordered I think depublished. that just took place. Very recently California Supreme Court ordered the opinion What the depublished. [¶] of court rulings Once an say: opinion we do depublished, have to it. ignore You we say fact, can’t it. ignore we case, have to. That really once it’s ordered depublished, it’s as good as if it’s never been written. You are free argue same reasoning case; as was used in that could be used here and should be persuasive, conclusion My on this motion—again, while this is [f] an issue, interesting legal so far the cases haven’t found it an protec equal tion Just problem. for completeness record, of todаy’s what we are talking about here are offenses, several sex including two offenses that Mr. Jones was convicted of several years back. One requires registration; the other does not. The 261.5 unlawful sexual intercourse does not [section] require registration, whereas the 288 does. Certainly the argu [section] [¶] ment is we are ta[l]king about sexual conduct with a under the—a person eighteen. Is there a distinction in the really law between traditional intercourse and oral sex? law makes distinction on who should [a] I register. have to presume the had a rational Legislature basis determin certain ing categories sexual offenders are more than likely recidivate others. I think to on this prevail motion have to in some you bring [¶] evidence to show that’s irrational and that’s not the case when it comes to *6 recidivism. It would be the same as a conviction of 288. First one 261.5. information, don’t Obviously you have that and I am inclined to deny [szc] case[5] the Mills and some of the the other cases that deal with I statute. haven’t found an The trial court then equal protection problem.” defendant, asked “Do to add to what’s in the written anything want you “No, I it thought motion itself?” When defendant sir. much replied, pretty defendant, “Yes, itself,” it It would the trial court told does. speak for had not been depublished, well. if the Felarca case presents very Obviously, on this motion.” you’d have a winner 6, (People v. Felarca (Aug. depublished by Supreme Court. 4The decision ordered the wаs 10, 1999, S082145.) 8080, opn. nonpub. ordered Nov.
1999) H01 review den. and 5People v. Mills Cal.App.3d Cal.Rptr. (1978) 81 171 [146 411]. 226
II. Discussion Defendant contends the trial court “abused its discretion when it refused to strike section 290 conviction since never should have been [he] first in the because the violated registration requirement place of the laws.” protection constitutional equal (Capitalization [his] omitted.)
A. Waiver The that defendant has waived his claim on People argue appeal. first the rule that “defendants with crimes based They analogize charged on their be of offenses may status convicted such prisoner [or ex-felon] which the upon of conviction notwithstanding invalidity prisoner [or 173 status was based. v. (People Harty (1985) ex-felon] [Citations.]” 493, 499 from conviction Cal.App.3d Cal.Rptr. appeal 85] [on [219 offense, court refuses to consider possible invalidity ex-felon in possession status]; rise to see also v. Sanchez People conviction ex-felon prior giving 477, Cal.Rptr. [despite invalidity 479-481 (1989) Cal.App.3d [259 294] conviction, not charge of defendant’s assault court would dismiss prior offense]; of a by a convicted violent weapon possession person previously 880, Graham v. Court 889-890 Superior (1979) Cal.App.3d [160 not a life Cal.Rptr. charge prisoner would dismiss assault 10] [court was resentenced to a term of despite years].) fact defendant argue pled also that defendant’s claim is waived because he out under section They the current offense. guilty point on are limited to issues following guilty cognizable appeal plea “[m]atters constitutional, on or other jurisdictional, grounds going based ‘reasonable in the plea. (People legality proceedings’ resulting [Citations.]” Cal.Rptr. 100].) LaJocies (1981) Cal.App.3d [174 conviction; However, validity prior defendant is not challenging Rather, he is is he section 290. guilty violating nor he is arguing motion, the trial the denial of his section 1385 in which asked appealing A its the section 290 conviction. court exercise discretion dismiss motion after seek of the denial of a section 1385 made defendant review may Cal.4th plea. of a entry guilty (People Lloyd the court allowed the defendant 1191].) 951 P.2d Lloyd, *7 his by a claim that the trial court erred section denying with proceed conviction, nolo his even had though pled motion to dismiss prior of The court that the exercise charge. explained to the substantive contendere not call finding to dismiss a conviction “does prior section 1385’s authority into question Here, itself or its finding support.” at (Lloyd, p. 665.) defendant seeks review of the similarly trial court’s decision not to exercise its section 1385 discretion to dismiss his conviction. We find that this claim is not waived.
B. Protection Equal Analysis below, As he defendant argued contends that his equal was protection violated the fact that he was as a sex required offender due to 288a, his conviction of section violating subdivision (b)(1) with (oral copulation under the person because 18), registration is persons 261.5, convicted of section violating subdivision (a) (unlawful sexual intercourse with a under the person age of 18).6
“ ‘ “ ‘The of the concept equal protection of the laws compels recog nition of the that proposition persons situated similarly with to the respect ’” legitimate of the purpose law receive like treatment.’ It is often [Citation.] stated that first prerequisite a meritorious claim under the equal ‘[t]he protection clause is a that the showing state has adopted classification that affects two or more situated similarly an manner.’ groups unequal [Cita The use of the term situated’ in ‘similarly this context tion.] refers only ‘ the fact that Constitution does not are require things which different “[t]he in fact оr opinion to be treated in law as were the . though they same.” . .’ There is some always difference between the two which a groups [Citation.] law treats in an unequal manner since an claim necessarily asserts that the law in Thus, some way between the two distinguishes groups. an equal protection claim cannot be resolved that the by simply observing members of A have group distinguishing characteristic X while the members B lack group this characteristic. The situated’ ‘similarly prerequisite simply means that an succeed, equal protection claim cannot and does not further require unless analysis, there is some that the two showing groups similar sufficiently to the respect of the law in purpose question some level of scrutiny rеquired in order to determine whether the distinc tion is justified.” (People Nguyen (1997) Cal.App.4th Cal.Rptr.2d 173], italics in original.) “ ‘ purpose section 290 is “to convicted assure
crimes enumerated therein shall be surveillance police available readily although registration person 6We note that of a convicted require section 290 does not 261.5, on violating registration may imposed section be (a), provide it subdivision does offender, court, at the time of such an in the “if the court finds discretion of the trial compul conviction a result of sexual sentencing person or that the the offense as committed Thus, con purposes (§ (a)(2)(E).) sion or for gratification.” of sexual subd. violating subject to the same (a) may victed of be sеction subdivision (b)(1). requirements violating as a convicted *8 228 times the them similar Legislature likely
at all because deemed to commit in the future.” v. Castellanos (People offenses [Citations.]’ [Citation.]” 785, 346, A 21 790 982 P.2d Cal.Rptr.2d 211].) person Cal.4th (1999) [88 has in an act of who has violated section subdivision engaged a the of 18. A who has violated copulation person age person oral with under of has in an act sexual intercourse engaged section subdivision (a) is age a under the of 18 who not the of the person spouse perpetrator. with Thus, the as one is to section 290’s subject classification offender who the differs based on distinctions in na- mandatory registration requirement the does ture of the sexual act. Defendant claims of section 290 purpose the the hе claims making a distinction based on nature of sexual act: justify of in a under the 18 copulation age who oral with persons engage in who sexual intercourse with a under persons engage unlawful in the future. “In of are to commit similar offenses age equally likely view, sufficiently these two are similar merit groups application our to determine whether distinctions between two some level scrutiny v. treatment.” justify unequal (People Nguyen, supra, groups at Cal.App.4th p. 715.) subject claims are to two different standards of
Equal protection “The if a scrutiny legislative review. strict standard review applies only classification suspect significantly infringes upon classification involves or a fundamental Commission on Judicial right. (Adams [Citatiоn.]” Perfor 641, If 882 P.2d no 358].) mance 8 Cal.4th involved, or fundamental is “we ratio apply classification suspect ‘ basis test: related “rationally nal classifications challenged (Id. at p. ’? legitimate governmental purpose” 660.) [Citation.]” scrutiny contends we should the strict stan apply Defendant review, contend should the rational dard of while that we People apply law, standard case we believe that basis of review. Consistent prior basis rational review appropriate. Review
1. Rational Basis against an upheld equal protection challenge Section was Mills, rational basis standard review. supra, Cal.App.3d Mills, the was of lewd and lascivious conduct on a defendant convicted as sex (former 288) under thе was child § his rejected argument to section 290. court pursuant offender the law it required 290 denied him because section offenses, some former including convicted of convicted of other sex offenses. but not by persons *9 The Mills court that explained presumption at constitutionality “[a] “ tends on Penal Code section 290” that the of a validity statute ‘will not be questioned “unless unconstitutionality clearly, and unmis positively, [its] ’ Mills, takably appears.” v. (People supra, at Cal.App.3d [Citation.]” The p. court further 176.) that explained should tread when lightly “[c]ourts approaching matters within the unique province of the Legislature,” such as definition of crime determination and the of punishment.” at (Id. “[t]he pp. 176-177.)
The Mills court noted that section although 290 requires registration by persons convicted of some sex offenses but not by persons convicted of offenses, other sex it is to the up “to Legislature determine the different degrees gravity, danger, from society various of sex types offenses.” Mills, v. (People supra, at The Cal.App.3d p. court 180.) explained that the Legislature’s decision not to make certain sex offenses subject regis tration be based “may upon legislative determination a particular type offender does not less; recidivate or offenses, recidivates some although touching acts, sexual upon are not so directly concerned or related to the type conduct which is recidivist, repetitive, in nature.” at (Id. p. 181.) The Mills court rejected as “unsubstantiated” the defendant’s claim that his offense had a recidivism, low rate of is a explaining: disputable “[T]his assertion Mills, best left with the Legislature for determination.” v. (People supra, at Cal.App.4th p. 180.) court concluded: is a rational “[T]here basis for Penal 290; Code section to wit: a state interest in legitimate controlling crime and recidivism sex preventing by offenders. The fact all who in persons touch any way a violation of sexual upon mores or behavior are not included would indicate distinction is inferentially legislative drawn. Mills does not burden carry his to establish the lack of rational at least as to relationship who violate Penal Code section 288 and are peoрle thereby at required register.” (Id. p. 181.)
Mills makes it clear that defendant there is showing has burden of no rational basis for the determination that who violate legislative persons 288a, to be recidivists and should be likely subdivision (b)(1) Here, there is nothing as sex offenders under section 290. registra the record before us to defendant’s claim that support requiring is not rationally tion of convicted of section persons “ ‘ “to assure interest served section 290: related to the state legitimate therein shall be readily of the crimes enumerated convicted deemed Legislature at all times because available for surveillance police in the fixture.” similar offenses them to commit likely [Citations.]’ [Citation.]” Castellanos, at p. 790.) 21 Cal.4th suрra, (Pe ople standard, basis we conclude that defendant “does rational Applying Mills, at supra, p. his burden” carry (People Cal.App.3d 181) section 290 does not violate defendant’s right law.
2. Scrutiny Strict
Defendant contends that we should strict standard apply scrutiny of in whether section 290 violates determining equal protection. review However, he cites no case the strict standard of review applying scrutiny statute, a our that have registration sex offender and research indicates courts such the rational basis standard review to statutes. consistently applied 72, v. P.3d State Martin 17 75 (E.g., (Alaska Ct.App. 2001) respect [with Act, involved, “no is nor is Registration suspect Alaska’s Sex Offender class 849, v. (E.D.Mich. fundamental Lanni 994 any right”]; Engler 1998) F.Supp. 855 Sex Offender Act “has Registration challenging Michigan’s [defendant he member class or that the Act failed to demonstrate that is a of any suspect Cutshall v. Cir. 193 right”]; Sundquist fundamental jeopardizes (6th 1999) 466, F.3d 482-483 rational basis test to Tennessee Sex Offender [applying Act]; Artway Attorney v. General State Registration Monitoring 1235, Jersey’s N. J. Cir. 81 F.3d 1267 Law “does Megan’s (3d 1996) [New not constitutional for Supreme fundamental which implicate Court Doe v. Poritz granted heightened equal protection scrutiny.”]; has 367, 414, in 1, 142 N.J. 36 [stating, 92-93 A.2d A.L.R.5th (1995) 711] [66 Law, that Jersey’s Megan’s New addressing equal protection challenge is offenders offense committed “classifying according subject rational basis analysis”].) he is first contends that strict is because scrutiny appropriate
Defendant assertion, this incarcerated for section 290. violating making being 55, v. 236 551 P.2d Cal.Rptr. cites Olivas 17 Cal.3d People (1976) 375] [131 offender commitment challenged juvenile where the defendant (Olivas), for an imposed that resulted in incarceration than would be greater scheme scrutiny adult The court the strict standard because applied offender. incarceration, “a most form of per- of the classification basic subject was at liberty deprivation.” (Id. p. 245.) sonal at issue here is from classifi- quite distinguishable
The classification issue in Olivas and other cases sentenc- presenting challenges cations at schemes, been analysis (See People where strict has ing scrutiny applied. to “Three Strikes” sentenc- [challenge v. 54 705 supra, Cal.App.4th Nguyen, 1783, Cal.App.4th v. 23 1792 scheme]; Murrаy (1994) ing People [29 mixed limit of 1170.1 as applied [double-the-base-term § 42] misdemeanor sentences]; In re Jiminez felony (1985) Cal.App.3d for misdemeanants credits Cal.Rptr. 691-692 550] [conduct [212 Poole at v. Center)]; housed CRC Rehabilitation (California People credits Cal.Rptr. presen- Cal.App.3d 502] [work-time at here is tence classification issue subject custody].) offenders, incarceration. My opinion People supra, Cal.App.4th concurring Nguyen, convinced, however, Olivas[, supra,] observed: “I am not the strict standard here scrutiny Cal.3d 236 .. . requires application on incarceration. facing the basis a criminal defendant solely [Cita I convicted of the understand Olivas to establish only tion.] *11 same crime and should not be differ similarly punished оtherwise situated not absent a state interest. does ently compelling Equal protection require criminal histories. treatment convicts with different equal [Citations.] not has provided Strict is because scrutiny implicated simply Legislature for the of future a crime and potential by defining incarceration lawbreakers v. distinguishing degrees (People Nguyen, supra, culpability. [Citations.]” Bamattre-Manoukian, 54 J.).) at Cal.App.4th p. (conc. opn.
Other courts have
observed that Olivas does not
“courts
similarly
require
to
all criminal
to
subject
scrutiny requiring
showing
classifications
strict
Davis
of a
state interest therefor.
v.
compelling
(People
(1979)
[Citation.]”
250, 258
The
classification
92 Cal.App.3d
Cal.Rptr. 817].)
[154
here is more
classification of certаin crimes into
analogous
legislative
Davis,
v.
at
particular categories (e.g., People
supra,
Cal.App.3d
p.
classified as a narcotic rather than as a
or classification
stimulant])
[cocaine
certain
are
acts as criminal while other similar acts
not criminalized (e.g.,
783,
Cal.Rptr.2d
Mitchell
795-796
(1994)
Cal.App.4th
150]
[36
$100,000
v. Bell
of over
[possession
purchase drugs]; People
1030,
involv-
[rent-skimming
1048-1049
Cal.App.4th
156]
certain
residential
time
ing
property
periods].)
within
standard of
Defendant next
that strict
is
scrutiny
appropriate
contends
by
are
the fact
review because his
interests
liberty
privacy
implicated
290,
his
by
he
as
offender
section
but
further
that must
a sex
under
register
290.4,
section
subdivision
classification as a serious sex offender under
he is
subject
he
to the
that
Specifically,
potentially
refers
fact
(a)(1).
290,
subdivision
(m),7
notification
section
community
pursuant
290,
.
that a
“reasonably suspects
. .
(m), peace
a
officer who
7Under section
subdivision
a crime listed in
may
from a
offender convicted of
child or other
be at risk
sex
may provide information about
(a) of Section
paragraph (1) of subdivision
290.4”
he
section
fact that
is
to the information dissemination
subject
provisions
.8
290.4
as
We
not reach the
defendant’s classification
a
question
need
whether
290.4,
a fun-
(a) implicates
serious
offender under section
subdivision
classification,
his
section
damental
interest. Defendant
is
under
challenging
290,
must
as a sex offender.
(a),
register
subdivision
as a
who
we
examining
equal
whether
classification violates
particular
protection,
to the interests
implicated by
look
classification—whether
above,
should be
at all. As stated
we
strict
apply
scrutiny
if
or sig-
classification
classification
involves
“only
legislative
suspect
Com-
(Adams
fundamental
right.
nificantly infringes upon
[Citation.]”
mission on
Performance, supra,
Judicial
notification section subdivision pursuant (m) is the information dissemination of section 290.4 determined provisions applies reference to section subdivision This classification (a)(1). forth in after is found to come within classification set only a person as a section subdivision Defеndant’s classification (a). registrant in the trial court. challenged what he (a) *12 the Defendant has to demonstrate classification of persons failed 290, as sex offenders under section subdivision (a) to required register or a fundamen- upon involves a classification suspect significantly infringes Therefore, the tal strict standard is not right. scrutiny applicable. institutions, establishments, primarily organizations offender to and “that serve individuals offender,” community likely by as to members at risk.” to be victimized the well as “[o]ther 290, may be (§ (m)(1)(A) (B).) subd. & The information that released includes offender’s name, address, number, resulting physical description, photograph, plate license and crimes in registration. (§ (m)(4).) subd. 290.4, continually (DOJ) compile of informa Department 8Under section Justice must register registrants, including persons to specified required tion about sex offender who 290.4, (§ (a)(1).) requires the DOJ to for convictions of section 288a. subd. Section 290.4 inquire public may call a and operate telephone “a ‘900’ number that members of [for fee] 290.4, provide The (§ (a)(3).) a individual . . . .” subd. DOJ must to whether named is listed containing agencies other medium” infor local law enforcement “a CD-ROM or electronic 290.4, offender, viewing. (§ subd. public mation about the which must be made available for may (a)(4)(A).) provided the CD-ROM or other electronic medium Information address, histozy resulting crime(s) or than the employer, criminal other include offender’s medium, person registration. (Ibid.) to or other electronic in order view CD-ROM prеsent required puzpose.” (Ibid.) person must identifica may be to state “an articulable The indicating purpose the release of sign “that or she understands of tion and a statement and their children from public protect to themselves information is to allow members offenders, it to information obtained from the he or she is unlawful use sex understands engage against any registrant or in to coznmit a crime CD-ROM or other electronic medium any registrant.” (Ibid.) illegal discrimination or harassment We conclude that review, under the rational basis standard of requiring defendant to as a sex offender to register section 290 did not violate pursuant his Therefore, equal we conclude that the trial did protection. court not abuse its discretiоn by denying defendant’s section 1385 motion to dismiss his conviction of failing register as a offender.
III. Disposition The is affirmed. judgment J.,
Rushing, concurred.
MIHARA, J. I dissent.
Penal Code section 2901 states in relevant part: “(a)(1)(A) Every person in described for the rest of paragraph (2), his or her life while in residing . . . California . . . shall be with the chief required register police in which city he or she is . . . within residing, five working days into . . . coming or any city, county, ... in city county which he or she resides . . . temporarily . shall be following persons [¶] register pursuant who, paragraph (1): since (A) Any person My [¶] 1944, has been or is hereafter convicted in court in this state or in any any federal or court military of a violation of . . . Section . . . 288a . . . .” Section 290 thus requires any 288a, person convicted violating subdivision as a sex offender. subd. (§ (a)(1)(A), Section (2)(A).) it (b)(1) provides that is a felony any engage an act of oral copulation with under the 18.2 A person convicted of this statute not obtain relief from the may requirement any circumstances other than “full pardon.” 290.5, (§§ subd. subd. (b)(1), (a)(1).) *13 261.5,
Section subdivision that it is a crime for (a) provides a to person in an act of engage sexual intercourse with a under the of 18 who age is not the of the spouse Section not perpetrator.3 290 does require person convicted of to violating as a sex (a) offender. case,
In this prior sentencing, defendant filed a pro per request asking the trial court to exercise its section 1385 discretion to dismiss on the ground that the sex offense violated his constitutional registration requirement law. statutory 1All further rеferences are to the specified. Penal Code unless otherwise punishment
2The for this prison years. (§ 18.) offense is a state term of 16 months or 2 or 3 punishment 3The prison years. (§ 18.) for this offense is a state term 2 of months or or 3 that, motion, “a The court in his had placed trial noted written defendant lot of on case from our own Sixth District.” emphasis the Felarca The court defendant had out acknowledged properly pointed case been that the Felarca depublished. Commenting opinion had ordered had been ordered to the defendant that depublished, explained court it, it or the same argue could not cite but that he was “free rely upon as was in that case.” reasoning used it committed considering against that was two sex offenses
Noting does and that 261.5 unlawful sexual intercourse “[t]he does,” court “Is pondered, whereas trial require registration, there in the distinction law between traditional intercourse really any instead, it its oral sex?” The court did not answer own question; directly I on should register. reasoned as follows: “The law makes distinction who certain determining have to had a rational basis presume Legislature I than others. categories likely of sexual offenders more recidivate [¶] bring think on motion have to in some evidence show you this prevail it It that’s irrational and that’s not the case when comes to recidivism. would Obviously be the First one 261.5. don’t you same as conviction 288. case information, deny have that and I am inclined to the Mills and some I haven’t found an the other cases deal with statute. equal protection problem.” to add he had
When the court if defendant wished what anything asked motion, “No, I much in his sir. responded, pretty written defendant presented “Yes, It itself.” trial court it does. it would thought speak replied, if the case not been well. Felarca had presents very Obviously depublished, a winner on this motion.” you’d have not to its seeks of the trial court’s decision exercise
Defendant review I agree section 1385 discretion to dismiss defendant’s conviction. review the of his 1385 that defendant is entitled to seek denial majority his Lloyd motion after the entry plea. (People made guilty Cal.4th 951 P.2d 1191].) I con- However, Felarca was ordered our although opinion depublished, *14 I Accordingly, to its its conclusions. would reasoning tinue to adhere that there no rational basis for between distinguishing hold is again 18 age in conduct with those under engage offenders who substantial sexual copulation has in oral engaged on the that one class of offenders ground the other has in sexual intercourse. engaged
“ ‘ “ ‘The of the of the laws concept equal protection compels recognition of the to the proposition similarly legiti- situated with respect ” ’ mate of the like . It is often purpose law receive treatment.’ . . stated first to a meritorious claim prerequisite equal protection ‘[t]he clause is a that the state has a classification that affects two showing adopted or more situated in an . The of the similarly manner.’ . . use groups unequal ‘ term situated’ in this context refers to the fact that ‘similarly only “[t]he Constitution does not in which are different fact or require things opinion be in treated law as were the same.” There is though they always some difference between the two in which a law treats an groups unequal manner since an claim asserts that the law in equal protection necessarily Thus, some way distinguishes between two an groups. equal protection claim cannot be resolved that the members of A by simply observing group have characteristic X B distinguishing while members lack this group characteristic. The ‘similarly situated’ means that an prerequisite simply equal protection succeed, claim cannot and does not further require analysis, unless there is some that the showing two are similar groups sufficiently to the respect of the law in that some purpose question level of scrutiny in order to determine whether the distinction is justified.” (People v. Nguyen Cal.App.4th citations Cal.Rptr.2d 173], [63 omitted.)
Here the elements of section 261.5, subdivision and section subdivision (a) identical essentially that one oral except prohibits copu- lation and the other sexual intercourse. Both substantial sexual prohibit conduct with a minor However, under the of 18. violation of section 288a, subdivision sex offender (b)(1) requires registration and violation of view, does not. In (a) our two groups violators are similar to merit some sufficiently level of in order to scrutiny determine whether registration is for one but not the justified other. group, an analyzing challenge, question appropriate standard of turns on review whether the interest affected distinction by is one that is considered “fundamental.” (People Nguyen, supra, Cal.App.4th 715-716.) “Where affected the classification is constitutionally protected, classification need be only rationally related to a legitimate state purpose order withstand equal protection scrutiny.” (People Leung (1992) Cal.App.4th 290].)
Even as a sex offender for the assuming requiring person rest of his or her life does not affect that “fundamental” or person’s *15 the two statutes a distinction between
“constitutionally rights, protected” of section 290 is assure The legislative purpose cannot be justified. for available readily “shall be convicted of offenses specified such persons times. The has deemed Legislature at all surveillance police this basis the in the and upon similar offenses future to commit likely Mills 81 Cal.App.3d registration required. (People [Citation.]” in oral copula- those who engage Cal.Rptr. 411].) Requiring 176 offenders, no such but making 18 to as sex register tion with those under age age those under in intercourse with for those who sexual engage requirement does Since the classification without rational any support. 18 is a distinction the registration requirement protection scrutiny, not withstand equal stricken. must be those who violate Mills, 171, is supra, Cаl.App.3d reliance on The People’s and lascivious Mills, was convicted of lewd the defendant misplaced. sexual attempted after he age 288) on a child under the (§ conduct force. The means of threats and a seven-year-old girl by intercourse with him equal protec denied requirement that his argued registration defendant and law, some sex offenders were required tion of the because fact “The stating: his argument by not. The Mills court rejected others were subject are not made of sex offenses which there are some of classes types is a denial equal se there finding does not per require determination particular be based upon legislative This may protection. offenses, less; sоme not recidivate or recidivates of offender does type or related acts, not so concerned directly sexual upon although touching recidivist, In this final in nature. is repetitive, to the of conduct which type should for the Legislature matters for consideration these are analysis, I the Mills court at p. 181.) agree be to that body.” (Mills, addressed of various sex distinctions between could draw rationally Legislature register, be sex offenders must in which determining fenders Mills, the In contrast to of sex offenses. variety there are a wide because is, there is a rational that whether a narrower question, instant case presents in substantial who engage between sex offenders basis for distinguishing class of that one 18 on the ground with those sexual conduct in sexual the other has engaged copulation has oral engaged offenders view, is irrational. such a distinction intercourse. In my equal protection that defendant’s Here, believed mistakenly the trial court defend- indicated that merit. the trial court substantive Since lacked argument “an had there been meritorious been potentially motion would have ant’s to give remand is appropriate I conclude that a problem,” reconsider, of the views expressed in light court the opportunity trial *16 herein, defendant’s that it exercise its discretion under section 1385 request defendant’s conviction for as a sex by dismissing present failing offender. 3, 2002,
A for denied was petition rehearing September appellant’s review Court was denied October 2002. petition Supreme Kennard, J., Moreno, J., be were should opinion petition granted.