Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN257000, Aaron H. Katz, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Steven Antony challenges the judgment of the trial court to the extent that the judgment requires that he register as a sex offender pursuant to Penal Code section 290. The trial court ordered Antony to register as a sex offender as part of the sentence that the court imposed on Antony after he pleaded guilty to two counts of lewd acts with a minor between the ages of 14 and 15, and three counts of unlawful intercourse with a minor more than three years younger than Antony. Antony contends that imposition of the mandatory registration requirement on him, based on his convictions for lewd acts with a minor between the ages of 14 and 15, violates his right to equal protection under the Fourteenth Amendment because whether mandatory sex offender registration-as opposed to discretionary registration-applies to a defendant may be based on a discretionary charging decision of the district attorney, rather than on the offender's conduct.
Further statutory references are to the Penal Code unless otherwise indicated.
We reject Antony's argument and affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Jane Doe H.
In September 1996, Antony, who was 25 years old, was a high school junior varsity volleyball coach. Jane Doe H., who was 14 years old, played on the freshman volleyball team. Jane Doe H. told Antony that she had a crush on him, and the two subsequently developed a sexual relationship that included kissing, Antony inserting his fingers into Jane Doe H.'s vagina, and Jane Doe H. orally copulating Antony.
2. Jane Doe A.
In 1997, Antony coached Jane Doe A., who was then 14 years old and played high school volleyball.
In the summer of 1998, Antony and Jane Doe A. began a sexual relationship. Antony told Jane Doe A. to keep their relationship a secret because he could go to jail if people found out about it.
At least once a week, Antony and Jane Doe A. would engage in sexual activities. Antony would orally copulate Jane Doe A. and insert his fingers into her vagina.
In April 1999, when Jane Doe A. was 16 years old and Antony was 28 years old, the two had sexual intercourse.
In 2005, Jane Doe A. and Antony married. They divorced two years later.
3. Jane Doe K.
Antony was Jane Doe K.'s volleyball coach when she was in the sixth grade. In June 2008, when Jane Doe K. was 17 years old, she and Antony began a sexual relationship. The two had sexual intercourse, Antony inserted his fingers into Jane Doe K.'s vagina, and orally copulated her. Antony had told Jane Doe K. that he could go to jail for having a sexual relationship with her, and Jane Doe K. agreed to keep their relationship a secret.
B. Procedural Background
The district attorney filed an information on March 25, 2009, charging Antony with eight counts of committing lewd and lascivious acts upon a child between 14 and 15 years of age, with Antony being at least 10 years older than the child (§ 288, subd. (c)(1); counts 1 through 3 relating to Jane Doe H., and counts 4 through 8 relating to Jane Doe A.); two counts of oral copulation of a person under 18 years of age (288a, subd. (b)(1); counts 9 and 15 relating to Jane Doe K.); penetration by a foreign object of a person under 18 years of age (§ 289, subd. (h); counts 10 and 12 relating to Jane Doe K.); and unlawful sexual intercourse with a minor more than three years younger than Antony (§ 261.5, subd. (c); counts 11, 13, 14, 16, and 17 relating to Jane Doe K.).
The prosecutor dismissed count 17. On May 15, 2009, Antony pled guilty to counts 1, 4, 11, 13, and 14. The trial court granted the prosecutor's motion to dismiss the remaining counts.
On June 15, 2009, the trial court sentenced Antony to two years in prison on count 1, and to concurrent two-year sentences on each of the remaining counts. The trial court also ordered Antony to register as a sex offender under section 290.
Antony filed a timely notice of appeal on July 10, 2009.
III.
DISCUSSION
Requiring Antony to Register as a Sex Offender Does Not Violate Equal Protection
Antony argues that pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), the fact that he must register as a sex offender under section 290, based on his convictions for lewd and lascivious acts with a minor 14 or 15 years old, violates principles of equal protection.
In Hofsheier, the 22-year-old defendant pleaded guilty to unlawful, nonforcible oral copulation of a 16-year-old girl, in violation of section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1192.) The trial court ordered Hofsheier to register under the mandatory sex offender registration provisions of section 290. (Hofsheier, at p. 1192.) Hofsheier argued that the mandatory registration requirement violated his constitutional right to equal protection under the law because persons convicted of unlawful, nonforcible sexual intercourse with a minor pursuant to section 261.5, under similar circumstances, were not subjected to mandatory registration, but instead, were subject to the court's discretionary decision whether to require registration. (Hofsheier, at p. 1192.)
The Supreme Court agreed that imposing mandatory registration on Hofsheier, when a defendant convicted of committing a different voluntary sexual act with a minor 16 years or older would not be subject to mandatory registration, would deprive Hofsheier of equal protection. The court directed the appellate court to remand the case to the trial court to consider whether it should exercise its discretion to require sex offender registration under former section 290, subdivision (a)(2)(E). (Hofsheier, at pp. 1192–1193.)
Antony seeks to extend Hofsheier to preclude mandatory registration for his convictions under section 288, subdivision (c)(1) on the ground that whether a defendant will be subject to the mandatory registration requirement of section 290 is based on the prosecutor's exercise of discretion to charge the defendant with a mandatory registration offense, rather than with a different offense for which the court would have discretion as to whether to order registration. Antony contends that the conduct underlying the two counts of lewd and lascivious conduct (the counts requiring mandatory registration) of which he was convicted could have been charged, instead, as violations of section 288, subdivision (c)(1) (for which registration is mandatory) or section 288a, subdivision (b)(2) (for which registration is discretionary). According to Antony, the fact that the prosecutor has discretion to decide whether to charge a person who commits the same acts under either section 288, subdivision (c)(1), or rather, under section 288a, subdivision (b)(2) violates equal protection because giving the prosecutor such discretion allows defendants who commit the same wrongful act to be treated differently. Antony asserts that defendants "who commit identical physical acts... should not face grossly disparate treatment based solely upon the prosecution's unfettered charging discretion."
Section 288a, subdivision (b)(2) provides: "Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony."
"Claims of unequal treatment by prosecutors in selecting particular classes of individuals for prosecution are evaluated according to ordinary equal protection standards. [Citation.] These standards require the defendant to show that he or she has been singled out deliberately for prosecution on the basis of some invidious criterion, and that the prosecution would not have been pursued except for the discriminatory purpose of the prosecuting authorities. [Citation.] '[A]n invidious purpose for prosecution is one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests....' [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568-569 (Manduley).)
Antony acknowledges that the court in People v. Cavallaro (2009) 178 Cal.App.4th 103, 116-117 (Cavallaro) rejected an equal protection argument similar to his with respect to prosecutorial discretion in charging sex offenses, but contends that Cavallaro was wrongly decided. In Cavallaro, the defendant argued that because the prosecutor has discretion to charge a defendant under either section 261.5, subdivision (d) (for which registration is discretionary), or section 288, subdivision (c)(1) (for which registration is mandatory), based on the same conduct, imposition of the mandatory registration requirement violates equal protection.
Section 261.5, subdivision (d) provides: "Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years."
The Cavallaro court examined the Supreme Court's decision in Manduley, supra, 27 Cal.4th at pages 567–573, in which the Court rejected an argument that an amendment to Welfare and Institutions Code section 707, subdivision (d) that gave prosecutors discretion to file certain charges against specified minors directly in criminal court without a judicial determination that they were unfit for juvenile court disposition constituted a violation of equal protection. The Supreme Court concluded that the fact that the law accorded prosecutors the discretion to determine whether to file charges against a minor in criminal court rather than by wardship petitions in juvenile court did not render the law unconstitutional. The Manduley court reasoned, "[A]ll minors who meet the criteria enumerated in [Welfare and Institutions Code] section 707[, subdivision] (d) equally are subject to the prosecutor's discretion whether to file charges in criminal court. Any unequal treatment of such minors who commit the same crime under similar circumstances results solely from the decisions of individual prosecutors whether to file against particular minors a petition in juvenile court or instead an accusatory pleading in criminal court. Although... a prosecutor's decision in this regard can result in important consequences to the accused minor, so does a decision by a prosecutor to initiate criminal charges against any individual, including an adult.... [¶]... [¶]... [N]umerous decisions have upheld statutes conferring upon prosecutors the authority to make analogous decisions." (Manduley, supra, 27 Cal.4th at pp. 568-569.)
The Mandulay court referred to another case, Davis v. Municipal Court (1988) 46 Cal.3d 64, in which it had "determined that a provision limiting a defendant's eligibility for diversion to cases in which the prosecutor charged a wobbler as a misdemeanor did not violate equal protection principles." (Manduley, supra, 27 Cal.4th at p. 569.) The Manduley court noted that in Davis, the court "explained that the eligibility rule was 'no different than any other legislative rule which accords differential treatment to an individual depending on whether a prosecutor believes a greater or lesser charge is appropriate.' [Citation.]" (Manduley, supra, at p. 569.)
Applying the Supreme Court's reasoning in Manduley to the prosecutorial discretion involved in charging a defendant with sexual offenses for which mandatory registration may be required, the Cavallaro court concluded that giving a prosecutor the discretion to charge the same offense as a violation of either section 288, subdivision (c)(1), or instead, as a violation of section 261.5, subdivision (d), does not violate principles of equal protection. (Cavallaro, supra, 178 Cal.App.4th at p. 117.)
Antony's equal protection argument is substantially equivalent to the argument that was considered and rejected in Cavallaro. We see no reason to depart from the holding in Cavallaro in addressing Antony's equal protection challenge to his mandatory registration requirement.
IV.
DISPOSITION
The judgment of the trial court, including the court's order directing Antony to register as sex offender pursuant to section 290, is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.