Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS121170, David P. Yaffe, Judge.
Law Offices of Robert C. Kasenow II and Robert C. Kasenow II for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Defendant and Respondent.
FLIER, J.
Appellant Daniel Peck filed a petition for writ of mandate and complaint for declaratory and injunctive relief to challenge the requirement that he register as a sex offender. The trial court entered judgment against appellant, and this appeal followed. Appellant contends that the statute giving the court discretion to impose the registration requirement is unconstitutional because it denies him equal protection of the law. He further contends that, even if the statute is constitutional, the trial court abused its discretion in requiring him to register as sex offender. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was born in Canada and came to the United States in 1982 on a work visa. He became a permanent resident of the United States in 1986. Also in 1986, he became a member of the Conventual Franciscans of California.
On January 22, 1996, appellant was charged in a felony complaint with two counts of inducing a child to engage in a lewd act in violation of Penal Code section 266j, two counts of oral copulation of a person under 16 in violation of section 288a, subdivision (b)(2), and one count of a lewd act upon a child in violation of section 288, subdivision (c).
All further statutory references are to the Penal Code unless otherwise stated.
The felony complaint against appellant arose from events on January 18, 1996. On that date, Gordon Polk was driving westbound on Santa Monica Boulevard in Los Angeles when he saw an Oldsmobile parked on the north side of Santa Monica Boulevard facing westbound. Polk saw appellant in the passenger seat talking to a young Hispanic man, who was standing on the curb and leaning into the vehicle through the passenger window. The young man then entered the vehicle through the passenger door, and the vehicle drove away. Approximately two hours later, Polk was driving down La Brea Avenue at Venice Boulevard when he saw the same Oldsmobile with appellant driving and the same young man in the passenger seat. The vehicle drove into the parking lot of the Hawaiian Hotel on South La Brea Boulevard. Polk became suspicious and called the police.
Appellant pled no contest prior to the preliminary hearing in the underlying criminal case. Our description of the underlying offense is taken from the probation report, the only document in the record that describes the offense.
Officers responded to the hotel, and after obtaining a room number from the manager, knocked on appellant’s door. When appellant answered the door, the officers asked who was in the room with him. Appellant responded, “My friend.” Appellant was dressed in boxer shorts and a T-shirt. Appellant gave consent to the officers to enter the room. Inside, they observed the young man sitting on the toilet wearing a T-shirt and boxer shorts. They also observed a pornographic movie playing on the television in the room. The officers arrested appellant and the young man. During a followup investigation, appellant admitted that he had engaged in oral sex with the young man on numerous prior occasions. The young man was 15 years old and appellant was 62 years old at the time.
On February 14, 1996, appellant pled no contest to one count of oral copulation of a person under 16 in violation of section 288a, subdivision (b)(2). The People dismissed the remaining counts. The court denied probation, sentenced appellant to the low term of 16 months in state prison, and ordered appellant to register as a sexual offender pursuant to section 290.
On July 25, 1997, appellant filed a petition for writ of habeas corpus arguing that he was denied the effective assistance of counsel because his counsel failed to research and advise him of the immigration consequences of his conviction, and as a result, appellant was then facing deportation and exclusion proceedings. The court denied appellant’s petition for writ of habeas corpus on August 11, 1997.
On December 5, 2007, appellant filed a petition for certificate of rehabilitation pursuant to section 4852.01. The court denied the petition on February 19, 2008.
On June 19, 2009, appellant filed the instant petition for writ of mandate and complaint for declaratory and injunctive relief. The court heard oral argument on the petition on March 26, 2010, and denied it. In denying the petition, the court stated that appellant must register as a sex offender pursuant to section 290.006 because appellant had committed the underlying offense “as a result of sexual compulsion and for purposes of sexual gratification.” Judgment was entered on April 29, 2010, and appellant timely filed notice of appeal on June 17, 2010.
DISCUSSION
Appellant’s petition for writ of mandate challenged the requirement that he register as a sex offender pursuant to section 290 et seq. Appellant sought a writ of mandate directing the State of California to remove any and all records of his past sex offender registration and to take all reasonable steps to notify applicable law enforcement agencies that appellant had been removed from California’s sex offender registration rolls. Appellant also sought a judicial declaration that requiring him to register as a sex offender violated his rights under the federal and California constitutions.
Appellant contends that the trial court erred because (1) subjecting appellant to discretionary sex offender registration violates his constitutional right to equal protection of the law, and (2) even if the discretionary registration statute is constitutional, the trial court abused its discretion in determining that appellant should register. We disagree on both issues.
1. Subjecting Appellant to Discretionary Registration as a Sex Offender Does Not Violate His Right to Equal Protection of the Law
As a preliminary matter, the Attorney General contends that appellant forfeited his constitutional objection to discretionary registration by failing to raise it in the trial court. We need not decide the issue. Even assuming appellant did not forfeit his constitutional objection, he cannot prevail on the merits.
We begin with the statutory scheme for sex offender registration. Sections 290 to 290.023 are known as the Sex Offender Registration Act. Section 290, subdivision (c) provides for mandatory registration for certain enumerated offenses. Section 290.006 is the discretionary registration section with which we are concerned. This section provides that a court may order registration for nonenumerated offenses “if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
Appellant’s constitutional objection to discretionary sex offender registration is based on the equal protection clause. “‘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.’” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530.)
Appellant fails to meet this first prerequisite. Appellant claims that persons convicted in another state of oral copulation of a minor and ordered to register as sex offenders in their state are similarly situated. He argues that he is denied equal protection of the law because such persons are able to escape sex offender registration by moving to California, where the law does not require them to register. But appellant’s argument is based on an incorrect reading of the law. Section 290.005, subdivision (b), concerns convictions in other jurisdictions. Pursuant to that section, a person ordered to register as a sex offender by a court in another state shall register in California “if the [out-of-state] court found at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
Thus, under section 290.006, a person convicted of oral copulation of a minor in California may be ordered to register as a sex offender if the trial court finds that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Under section 290.005, subdivision (b), a person convicted of oral copulation of a minor and ordered to register as a sex offender in another state shall register here if the out-of-state court made the same findings. In other words, California law treats California offenders and out-of-state of offenders in an equal manner. Appellant has no equal protection claim.
2. The Trial Court Did Not Abuse Its Discretion in Ordering Appellant to Register as a Sex Offender
Appellant contends that, given his background, the circumstances of the offense, and circumstances since his conviction, the trial court abused its discretion in ordering him to register as a sex offender. We disagree.
As explained in the foregoing, the trial court may order appellant to register as a sex offender if it finds that he committed the offense “as a result of sexual compulsion or for purposes of sexual gratification.” (§ 290.006.) The court is also required to state on the record its reasons for these findings and its reasons for requiring lifetime sex offender registration. (Ibid.; People v. Hofsheier, supra, 37 Cal.4th at p. 1197.) As with all actions within the trial court’s exercise of discretion, we may reverse only if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have ordered appellant to register as a sex offender. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
The trial court made the following express findings below: “Based upon its review of all of the evidence presented to it by the parties, this court finds that petitioner committed the offense for which he was convicted as a result of sexual compulsion and for the purposes of sexual gratification. [¶] Petitioner presents an unacceptable risk that he is a pederast who cannot control his sexual urges, and he therefore presents a continuing threat to minors of committing an offense similar to the one for which he was convicted. It is in the public interest that he not be relieved of his obligation to register as a sex offender.” These findings were sufficient under section 290.006 and were not an abuse of discretion. The court had evidence before it that appellant had admitted to engaging in oral copulation with the same victim on numerous prior occasions. Moreover, the evidence showed that officers found appellant in a hotel room with the 15-year-old victim, both dressed in nothing but T-shirts and boxer shorts, with a pornographic movie playing on the television. These circumstances supported the court’s findings that appellant committed the offense as a result of sexual compulsion and for sexual gratification, and that he presented an unacceptable risk of being unable to control his sexual urges.
Section 290.006 contemplates that the trial court will make these findings “at the time of conviction or sentencing.” Our Supreme Court has concluded, however, that “the Legislature did not intend by this language to strip courts of the power to later enter findings in instances where, at the time of conviction or sentencing, any need for findings was obviated by the existence of a then valid mandatory registration requirement.” (People v. Picklesimer (2010) 48 Cal.4th 330, 343, fn. 8.) This case presents such a situation. Our Supreme Court held in 2006 that the mandatory registration requirement was unconstitutional as applied to defendants convicted of oral copulation of a minor. (See People v. Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1207.) Appellant was originally ordered to register in 1996, when the mandatory registration requirement was still valid. Thus, the trial court was entitled to make the necessary findings for discretionary registration, even though it did so after appellant’s conviction and sentencing.
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
WE CONCUR: BIGELOW, P. J., GRIMES, J.