Opinion
—In 1999, defendant George Christopher Tuck was 19 years old and, for engaging in sexual relations with his then 13-year-old girlfriend, by a plea of no contest was convicted of committing lewd acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).)
Background
In 1999, Tuck was charged by information with 10 counts of committing a lewd and lascivious act on a child under the age of 14 between October 1, 1997, and January 23, 1998. (§ 288, subd. (a).)
On August 13, 2010, following the procedure set forth in People v. Picklesimer (2010)
Dr. Missett opined that at the time of the offenses, Tuck’s “focus was on having a sense of being liked, getting along with others, being dependent, excessively dependent on others, acting really at an age, a psychological age that was considerably less than his chronological age, so he was acting like a 15-year-old or 16-year-old might be expected to act or think rather than someone who was two, three, four years older than that.” Dr. Missett concluded that Tuck was not fixated on young girls, and that he did not have problems with drugs, alcohol or impulse control.
Tuck testified that while serving a year in jail as a term of his probation he completed his GED and assisted other inmates in completing their GED’s. He paid approximately $11,400 in fines and restitution that were ordered as part of his probation. He also participated in sex offender counseling for the entire period of his probation. He obtained employment while on probation and continues to be employed. He has lived with a 41-year-old girlfriend for two years and plans to marry and have children. He asked that the court relieve him of the registration requirement “so that when my children come of age I’m able to participate in things like . . . taking them to a baseball game, to their little league games, to be able to take them to birthday parties where
At the conclusion of the evidentiary hearing, the trial court stated, “I’m very impressed by what Mr. Tuck has done since his conviction. My only question, and it’s a fundamental one is, is there a case that says that I can relieve him of that obligation in this context. And it sounds like . . . these two, [People v.] Alvarado [(2010)
Following initial briefing in this court, we requested and received supplemental briefing on the following issues: “1. Assuming that the court concludes that the mandatory registration requirement that applies to persons convicted of violating . . . section 288, subdivision (a) (§ 290, subd. (c)) does not violate defendant George Christopher Tuck’s right to equal protection of the laws, do the provisions of sections 290.5, subdivision (a)(2) and 4852.01, subdivision (d), which deny defendant the right to petition for and obtain a certificate of rehabilitation for such a violation and be relieved of the registration requirement, violate his right to equal protection? What is the significance, if any, of the fact that persons convicted of violating section 288.7, of violating section 187 in the perpetration or attempt to perpetrate any act punishable under section 288, or of violating section 311.4, subdivisions (a) and (f) may obtain a certificate of rehabilitation and be relieved of the registration requirement? (§§ 290.5, subd. (a)(1), 4852.01, subd. (a).) [f] 2. If the provisions of sections 290.5, subdivision (a)(2) and 4852.01, subdivision (d) violate defendant’s right to equal protection, what is the appropriate remedy?”
Discussion
In the trial court Tuck advanced several theories under which he contended the registration requirement should be stricken. He argued, and continues to
Because principles of judicial restraint require us to rely on nonconstitutional grounds if possible (People v. Pantoja (2004)
A. Section 1385
Tuck contends the trial court could have relieved him of the registration requirement under section 1385 and incorrectly believed it lacked the discretion to do so. There is no merit to this argument.
Section 1385, subdivision (a), authorizes a trial court to dismiss a criminal action “in furtherance of justice.” “[T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions.” (People v. Superior Court (Romero) (1996)
The registration requirement is not an action, a criminal count, or a factual allegation. Nor is registration under section 290 considered to be punishment. (People v. Castellanos (1999)
B. Equal protection; mandatory registration for those who violate section 288 does not deny equal protection
We turn next to Tuck’s argument that the mandatory requirement that he register as a sex offender because of a conviction under section 288, subdivision (a) violates the constitutional guarantee of equal protection as articulated in Hofsheier.
“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.” ’ [Citation.] Where the statutory distinction at issue neither ‘touch[es] upon fundamental interests’ nor is based on gender, there is no equal protection violation ‘if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]’ [Citation.] That is, where there are plausible reasons for the classification, our inquiry ends. To sustain defendant’s equal protection challenge to sex offender registration under section 290, defendant must prove that the classification scheme is irrational.” (People v. Alvarado, supra,
“ ‘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.’ ” (Hofsheier, supra,
In Hofsheier, the 22-year-old defendant pled guilty to oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)) and challenged the registration requirement as violating equal protection because had he been convicted of sexual intercourse with a minor (§ 261.5), he would not have been subject to mandatory registration as a sex offender. The Supreme Court observed that “both section 288a and section 261.5 follow a pattern of imposing greater punishment on offenses involving younger victims, but the sentences imposed at each age level are not identical. Depending on the age of the victim or perpetrator, persons convicted of oral copulation with a minor are sometimes subject to more severe sentences than persons convicted of unlawful intercourse with a minor, often subject to the same sentence, and occasionally subject to less severe sentences. Apart from the mandatory lifetime registration requirement, voluntary sexual acts between a 22-year-old and a 16-year-old—whether oral copulation or sexual intercourse—are treated identically . . . .” (Hofsheier, supra, 37 Cal.4th at pp. 1195-1196, fn. omitted.)
The Supreme Court rejected the rational basis for treating the two crimes differently suggested by the Attorney General—that there had been a rise in oral copulation among teens and that an offender was more likely to reoffend if convicted of oral copulation than if convicted of sexual intercourse with a minor. The court held that “the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who . . . were convicted of
The equal protection analysis adopted in Hofsheier has subsequently been applied to invalidate the mandatory registration requirement for conviction of other nonforcible sex crimes involving a minor where the offender was deemed similarly situated to persons guilty of comparable offenses for which registration is not mandatory. In People v. Garcia (2008)
In People v. Ranscht (2009)
However, the courts have uniformly recognized the significance of the victim’s age that defines an offense in determining whether offenders of other statutes are similarly situated and whether there is a rational basis for statutory distinctions between two offenses. Penal Code provisions such as section 288a, subdivision (b)(1) (oral copulation of a minor) “provide[] a graduated scale of punishment depending on the age of the parties and the presence or absence of force or other coercion.” (Hofsheier, supra,
In Hofsheier itself, the Supreme Court expressly approved of the decision in People v. Mills (1978)
Several subsequent decisions have reaffirmed that the Hofsheier analysis does not invalidate the mandatory registration requirement imposed for the violation of section 288, subdivision (a), albeit under circumstances that were more egregious than those involved here, voluntary sexual relations between two teenagers in a romantic relationship. In People v. Anderson, supra,
Similarly, in People v. Alvarado, supra,
People v. Manchel (2008) 163 Cal.App,4th 1108 [
The reasoning in Manchel has subsequently been rejected by other courts. In People v. Ranscht, supra, 173 Cal.App.4th at pages 1374-1375, the court noted that a violation of section 288, subdivision (c)(1) is a specific intent crime whereas section 261.5 is a general intent crime and, thus, one who engages in sexual intercourse does not necessarily violate section 288, subdivision (a), as the court in Manchel reasoned. The Ranscht opinion goes on: “Ultimately, the Manchel court’s logic eludes us. It would have us completely ignore the crime of which a defendant is convicted and look instead to all of the crimes of which a defendant could have been convicted
Since Tuck was convicted of violating section 288, subdivision (a), the issue that has divided these courts is not relevant to the issue now before us. What is significant is that all of these cases agree that persons convicted of violating section 288, subdivisions (a) or (c)(1), in which the victim must either be under 14 years of age or 14 or 15 if the defendant is 10 years older, are not similarly situated with persons convicted of sex offenses under other statutes that do not require the minor victim to be so young. This is true even though persons may be convicted of violating those other statutes (such as § 261.5) with a victim who is under 14. The fact that prosecutorial decisions are sometimes made to charge or accept a plea to a lesser offense than one which the evidence would support does not mean that another person who has not received that leniency has been deprived of equal protection, absent a showing of discriminatory prosecution that plainly has not been made here.
Tuck admitted by his plea that he committed lewd acts on a person less than 14 years of age, in violation of section 288, subdivision (a). Even though the unspecified acts were engaged in between consenting adolescents,
During our consideration of this appeal, we asked the parties to address whether Tuck’s ineligibility for a certificate of rehabilitation due to his conviction under section 288 runs afoul of the equal protection clause in light of the possible eligibility for such relief of other similarly situated sex offenders. We asked the question because section 290.5 provides that upon obtaining a certificate of rehabilitation an offender may be relieved of the registration requirement, while sections 290.5 and 4852.01 enumerate certain sex offenses that render an applicant ineligible for a certificate of rehabilitation. Tuck’s conviction under section 288 is one such enumerated offense. But the question arises whether the eligibility criteria of sections 290.5 and 4852.01 result in the arbitrarily different treatment of similarly situated offenders because the courts may consider applications for certificates from some sex offenders but not others.
Because Tuck has not yet applied for a certificate of rehabilitation and the trial court has not considered whether the equal protection principles articulated in Hofsheier require that such relief be made available to him, we are
Disposition
The judgment is affirmed, without prejudice to Tuck’s right to apply for a certificate of rehabilitation and pardon pursuant to section 4852.01 et seq. and, if granted, to be relieved of the registration requirement pursuant to section 290.5.
McGuiness, P. J., and Siggins, J., concurred.
I add a concurrence to my own opinion to expand on the final observation that Tuck may ultimately be entitled to relief from the lifetime registration requirement by obtaining a certificate of rehabilitation. I agree with my colleagues that since Tuck has not yet submitted an application for such a certificate and no lower court has considered his application, we are in no position to render a conclusive opinion as to whether he is entitled to such a certificate and whether statutory provisions that purport to deny him the right to obtain one violate his equal protection rights. Nonetheless, I believe that more can be said to define the issue should Tuck see fit to submit such an application.
While, as we have held, requiring all violators of Penal Code section 288
Section 290.5, subdivision (a)(1) provides that “A person required to register under Section 290 for an offense not listed in paragraph (2), upon obtaining a certificate of rehabilitation . . . shall be relieved of any further duty to register under Section 290 if he or she is not in custody, on parole, or
Among the crimes that require registration under section 290 are sex acts with a child 10 years of age or younger (§ 288.7). As I read the statutory language, persons convicted of violating this statute may obtain a certificate of rehabilitation and, having done so, shall be relieved of the registration requirement. (§ 290.5, subd. (a)(1).)
As the Supreme Court noted in Hofsheier, “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ ” (Hofsheier, supra, 37 Cal.4th at pp. 1199-1200.) “ ‘ “The
A statutory differentiation that prohibits a person convicted of engaging in lewd conduct with a minor under 14 years of age from obtaining a certificate of rehabilitation while permitting a person convicted of sexual relations with a minor 10 years or younger to do so would seem to work the same “Kafka-like perverse effect” that was condemned in Newland v. Board of Governors (1977)
From the record that is now before us, Tuck hardly seems the type of offender the Legislature intended to reach when it enacted sex offender registration. (See Hofsheier, supra,
If Tuck satisfies the criteria for obtaining a certificate of rehabilitation, requiring him to register as a sex offender for the remainder of his life because his youthful offense brought him within the all-encompassing reach of section 288 will serve no useful purpose. Not only will the requirement have lasting adverse effects upon him and his family but it will impose on society unnecessary expense incident to the registration. It should be clearly understood that our affirmance of the order now on appeal is without prejudice to Tuck’s right to file an application for a certificate of rehabilitation pursuant to section 4852.01, and thereby to be relieved of the registration requirement, in which case the court will be obliged to consider the impact of equal protection principles under the circumstances presented by his application.
Notes
Further statutory references are to the Penal Code.
At the same time, defendant was also charged with subsequently having sexual intercourse with a different person under the age of 18 (§ 261.5), and of oral copulation on the same person under the age of 16 (§ 288a, subd. (b)(2)). Defendant pled no contest to one count of each. Since under section 261.5 and the decision in Hofsheier neither of these offenses gives rise to a mandatory registration requirement, neither is pertinent to the issue raised by this appeal.
The court clarified that it was using “the term ‘voluntary’ in a special and restricted sense to indicate both that the minor victim willingly participated in the act and to the absence of various statutory aggravating circumstances: the perpetrator’s use of ‘force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person’ (§ 288a, subd. (c)(2)); the perpetrator’s ‘threatening to retaliate in the future against the victim or any other person’ (§ 288a, subd. (c)(3)); and the commission of the act while the victim is unconscious (§ 288a, subd. (f)) or intoxicated (§ 288a, subd. (i)).” (Hofsheier, supra,
Tuck also argues that the trial court erred in denying his motion for discovery to establish a claim of discriminatory prosecution. “[I]n order to establish a claim of discriminatory enforcement a defendant must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidious criterion.” (Murgia v. Municipal Court (1975)
Defendant did not make the necessary prima facie showing to justify discovery. He presented evidence that another young man (22 years old) had been charged with multiple counts of violating section 288, subdivision (a) with a minor who was 12 years old at the time, as well as counts of oral copulation, digital penetration and sexual intercourse. In that case, Tuck argues, the defendant had been allowed to plead no contest to one count of unlawful sexual intercourse and the plea specified that he would not be subject to the registration requirement. Even on the questionable assumption that a selective prosecution claim could be entertained long after the conviction has become final, Tuck did not suggest in the trial court and does not suggest now any invidious criterion that the district attorney’s office used when it required him to plead no contest to violating section 288, subdivision (a) but offered another allegedly similarly situated individual a plea bargain involving charges that do not require registration. (See also People v. Williams (1996)
Indeed, section 288, subdivision (a) applies even if the defendant is a minor and younger than the victim. (See, e.g., In re Jerry M. (1997)
Tuck also argues that denying him relief from the registration requirement violates the Eighth Amendment’s prohibition on cruel and unusual punishment. As Tuck acknowledges, this argument has been rejected by our Supreme Court, which concluded that the registration requirement is not punishment for purposes of the Eighth Amendment analysis. (In re Alva (2004)
Further statutory references are to the Penal Code.
Section 4852.01, subdivision (c) provides: “Any person convicted of a felony or any person who is convicted of a misdemeanor violation of any sex offense specified in Section 290, the accusatory pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the petitioner has not been incarcerated in any prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading and is not on probation for the commission of any other felony, and the petitioner presents satisfactory evidence of five years residence in this state prior to the filing of the petition.”
Section 4852.01, subdivision (d) provides: “This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, or persons in the military service.”
Persons convicted of violating section 288.7 apparently are not excluded from those entitled to seek a certificate of rehabilitation, although persons convicted of violating both section 288.7 and section 269 are excluded. (§ 3000.1, subd. (a)(2).) Subdivision (a)(2) of section 3000.1 provides that “in the case of any inmate sentenced to a life term under . . . Sections 269 and 288.7, [or other enumerated crimes], the period of parole, if parole is granted, shall be the remainder of the inmate’s life.” (Italics added.) As indicated by the conjunction “and,” lifetime parole is imposed only if the individual is convicted of violating both sections. The legislative history of section 3000.1 reflects that this conjunction was intentional. Section 288.7 penalizes any sexual contact with a child under the age of 10, regardless of whether force is involved, while section 269 refers exclusively to forcible sex crimes on minors. In the author’s statement accompanying the 2010 amendment that added this provision to section 3000.1, he states, “ ‘We believe this is an important change because there currently is no distinction between forcible and non-forcible sex crimes on a child. A forcible sex crime . . . involves “violence, duress, menace, or fear of immediate and unlawful bodily injury.” And while all sex crimes are awful, these crimes are a red flag that the perpetrator is capable of much, much worse. And we should acknowledge that, [f] This is why, under Chelsea’s Law, these offenders will serve a lifetime on parole if released . . . .’ ” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as amended Apr. 13, 2010, p. 19, italics added.)