Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV170894
Bamattre-Manoukian, J.
In 2009, the superior court reduced defendant Howard J. Gaass’s 2004 conviction for attempting to distribute harmful matter to a minor by the Internet (Pen. Code, §§ 664, 288.2, subd. (b)) from a felony to a misdemeanor pursuant to section 17, subdivision (b)(3). Gaass subsequently filed a petition for writ of mandate in that court, seeking an order relieving him of the duty to register as a sex offender pursuant to section 290. The court denied the petition pursuant to this court’s decision in People v. Kennedy (2009) 180 Cal.App.4th 403 (Kennedy).
All further statutory references are to the Penal Code.
On appeal, defendant contends that because his offense was reduced from a felony to a misdemeanor, while the offense at issue in Kennedy was a felony, the legal posture of his case is sufficiently different from that case and, therefore, this court should rule differently. As we find that section 17, subdivision (e) precludes the superior court from relieving defendant of his duty to register pursuant to section 290, we will affirm the superior court’s order.
BACKGROUND
Beginning on May 14, 2004, defendant engaged in a sexually explicit Internet dialogue using a chat room and a webcam with an undercover San Jose police detective posing as a 13-year-old boy. Defendant “chatted” about oral copulation and anal sex, and he used his webcam to send a video of himself masturbating. On June 4, 2004, defendant arranged to meet the “boy” on June 8, 2004, and to have the “boy” stay overnight with him at a hotel. Defendant was arrested when he arrived at the agreed-upon meeting area on the evening of June 8, 2004. Defendant told officers that he believed the alleged victim was 15 or 16, but that the victim sounded as though he was either nine or ten when defendant spoke to him on the phone. After defendant gave officers consent to search his hotel room, the officers found a computer containing an image of the alleged victim and an overnight case containing five condoms.
Defendant was charged by felony complaint with attempted distributing or exhibiting harmful matter to a minor by electronic mail, the Internet, or a commercial online service (§§ 664, 288.2, subd. (b); count 1) and attempted lewd acts on a minor under 14 (§§ 664, 288, subd. (a); count 2). On October 26, 2004, defendant entered into a negotiated plea agreement whereby he pleaded nolo contendere to count 1 on condition that he not receive a state prison sentence and that the offense be reduced to a misdemeanor after successful completion of probation. On January 6, 2005, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. The court also ordered defendant to register as a sex offender pursuant to section 290.
In April 2009, the probation department filed a petition in the superior court on defendant’s behalf seeking reduction of defendant’s conviction from a felony to a misdemeanor pursuant to section 17 and record clearance pursuant to section 1203.4. The court granted the petition on April 16, 2009.
“In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, ... the defendant shall, at any time after the termination of the period of probation, ... be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty;... and, ... the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted....” (§ 1203.4, subd. (a).
On June 8, 2009, defendant filed a petition for writ of mandate in the superior court. Defendant sought an order that the “Police Department of San Jose” release him from the requirement that he register pursuant to section 290. On July 22, 2009, the court filed its order denying the petition. The court concluded that defendant “alleges no legal basis for this Court to issue a writ of mandate to the Police Department....” In doing so, the court noted that record clearance does not relieve a defendant of the requirement to register as a sex offender. (See § 290.007.)
“Any person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person’s conviction has been dismissed pursuant to Section 1203.4....” (§ 290.007.)
Defendant filed a petition for writ of mandate in this court on July 28, 2009, contending that it is a violation of equal protection to require registration for attempted distribution of harmful matter to a minor and to not require it for sexual intercourse with a minor (§ 261.5, subd. (d)). We summarily denied the petition on September 22, 2009. (Gaas v. Superior Court (People) (H034498).) Our Supreme Court denied defendant’s petition for review on December 2, 2009, “without prejudice to any relief to which petitioner might be entitled after this court decides People v. Picklesimer, S165680.”
On March 15, 2010, our Supreme Court filed People v. Picklesimer (2010) 48 Cal.4th 330, wherein it held that a petition for writ of mandate filed in the superior court is the appropriate vehicle for an out-of-custody defendant seeking relief from an obligation to register as a sex offender. (Id. at pp. 339-340.) Accordingly, on May 3, 2010, defendant filed a new petition for writ of mandate in the superior court, again seeking an order “commanding the Police Department of San Jose to release [him] from the requirement that he register pursuant to Penal Code section 290.” Citing People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), he again contended that it is a violation of equal protection to require registration for attempted distribution of harmful matter to a minor and to not require it for sexual intercourse with a minor (§ 261.5, subd. (d)). The trial court filed its order denying the petition on May 17, 2010, stating in relevant part: “[Defendant] is not entitled to relief. According to the petition, [defendant] was required to register based upon a conviction for attempted PC 288.2(b). In People v. Kennedy[, supra, ] 180 Cal.App.4th 403, the Court of Appeal held that Hofsheier did not extend to those convicted of 288.2 or attempted 288.2 because they were not similarly situated as those convicted of 261.5.”
DISCUSSION
“Defendant was convicted of attempting to distribute harmful matter to a minor pursuant to sections 664 and 288.2, subdivision (b). The statutory scheme allows the court discretion to find the conviction to be either a felony or a misdemeanor: ‘Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet... or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, ... is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.’ (§ 288.2, subd. (b), italics added.)
“Section 17, subdivision (b) governs the process used to find the conviction to be a misdemeanor or a felony. That section states in relevant part: ‘When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶]... [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.’
“Once the court exercises its discretion to find the offense to be a felony violation of sections 664 and 288.2, subdivision (b), it must adhere to the mandatory sentencing guidelines in section 290, which require certain sex offenders to register for the rest of their lives while residing in California. (§ 290, subd. (b).) Section 290, subdivision (c) states: ‘The following persons shall be required to register: [¶] Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state... of... any felony violation of Section 288.2....’ In this case, ... the [sentencing] court... did not have discretion to refrain from imposing the mandatory registration requirement under section 290. (§ 290, subd. (c).)” (Kennedy, supra, 180 Cal.App.4th at p. 408, italics added.)
In Kennedy, the defendant contended that “his mandatory registration as a sex offender violates the equal protection provisions of the federal and state Constitutions because felons convicted of attempted distribution of harmful matter to a minor (§§ 664, 288.2, subd. (b)) are subject to mandatory sex offender registration while those convicted of unlawful sexual intercourse with a minor (§ 261.5) are not.” (Kennedy, supra, 180 Cal.App.4th at p. 408.) This court found that, “[c]ontrary to [the] defendant’s claim, had [the] defendant actually engaged in either unlawful, nonforcible sexual intercourse, or unlawful, nonforcible oral copulation with the alleged victim, who he thought was 13 years old, he would have been subject to prosecution under section 288, subdivision (a), for the commission or attempted commission of a lewd act on a minor under 14, a crime for which sex offender registration is mandatory. [Citations.] The fact that defendant—had he had sexual intercourse with a 13-year-old victim—could have been charged under section 261.5, subdivision (d), an offense that is not subject to mandatory registration under section 290, rather than section 288, subdivision (a), does not suggest that mandatory registration based on defendant’s conviction under section 288.2 constituted a violation of equal protection. [Citation.] [¶] [The d]efendant has not shown ‘ “ ‘that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” [Citation.]’ [Citations.] Since [the] defendant has not proven a violation of equal protection, we reject his claim that mandatory registration as a consequence of his section 288.2, subdivision (b) felony conviction is unconstitutional.” (Id. at pp. 410-411.)
Defendant here contends that he “raises the registration issue with only a misdemeanor violation of [section 288.2, subdivision (b)], having had his offense reduced to a misdemeanor pursuant to... section 17.” He argues that because he “was convicted of a misdemeanor violation... this court should not apply its Kennedy analysis to him.”
Citing section 17, subdivision (e), the Attorney General contends that the subsequent reduction of defendant’s offense to a misdemeanor pursuant to section 17, subdivision (b)(3) does not alter his registration requirement. “By its own terms, section 17 does not permit a change in [defendant’s] registration when it is used to reduce his offense to a misdemeanor. Therefore, [defendant’s] argument must fail.”
Section 17, subdivision (e) states: “Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.”
“When a defendant is convicted (whether by a guilty plea or a no contest plea, or at a trial) of a wobbler offense, and is granted probation without the imposition of a sentence, his or her offense is ‘deemed a felony’ unless subsequently ‘reduced to a misdemeanor by the sentencing court’ pursuant to section 17, subdivision (b). [Citations.]” (People v. Feyrer (2010) 48 Cal.4th 426, 438-439 (Feyrer).) “If ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively....” (Id. at p. 439; see also Doble v. Superior Court (1925) 197 Cal. 556, 576-577 [in the case of a wobbler, “the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that event it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter—the judgment not to have a retroactive effect”]; People v. Banks (1959) 53 Cal.2d 370, 388 [a defendant whose guilt of a wobbler has been established by plea or verdict has been convicted of a felony until and unless the offense is reduced to a misdemeanor]; Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1482-1483 [relief under section 17, subd. (b) is not retroactive; an offense subject to its provisions is a misdemeanor “only for purposes subsequent to judgment”].)
“Section 290 ‘applies automatically to the enumerated offenses, and imposes on each person convicted a lifelong obligation to register.’ [Citations.] Registration is mandatory [citation], and is ‘not a permissible subject of plea agreement negotiation’ [citation]. It is intended to promote the ‘ “state interest in controlling crime and preventing recidivism in sex offenders.” ’ [Citation.]” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 (Wright); see also Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825.)
It is undisputed here that defendant was “charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.” (§ 17, subd. (e).) Defendant was charged with a felony violation of sections 664 and 288.2, subdivision (b), and he pleaded nolo contendere to the charge as a felony. Although lifelong registration could not have been the subject of plea agreement negotiations (Wright, supra, 15 Cal.4th at p. 527), whether defendant pleaded guilty to a felony or misdemeanor violation of section 288.2 could have been the subject of plea agreement negotiations. Section 290 automatically applied to the felony offense and, upon his conviction therefor, imposed on defendant a lifelong obligation to register as a sex offender. (Wright, supra, at p. 527.) When the trial court later reduced defendant’s offense from a felony to a misdemeanor, the offense became a misdemeanor from that point on, but not retroactively. (Feyrer, supra, 48 Cal.4th at p. 439.) Therefore, notwithstanding the authority of the trial court to subsequently reduce defendant’s conviction from a felony to a misdemeanor pursuant to section 17, subdivision (b)(3), the trial court was not “authorize[d]... to relieve... defendant of the duty to register as a sex offender pursuant to Section 290.” (§ 17, subd. (e).)
Defendant has not shown either a denial of equal protection or that the subsequent reduction of his felony offense to a misdemeanor should relieve him of the lifetime sex offender registration requirement. Accordingly, we conclude that the superior court did not err in denying defendant’s petition for writ of mandate.
DISPOSITION
The order of May 17, 2010, is affirmed.
WE CONCUR: PREMO, ACTING P.J., GROVER, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.