Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F02365
HULL, J.Following a bench trial, defendant Aaron Matthew Briones was found guilty of oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1); unspecified section references that follow are to this code), sexual penetration of a minor with a foreign object (§ 289, subd. (h)), sexual exploitation of a minor (§ 311.3, subd. (a)) and invasion of privacy (§ 647, subd. (k)(1)). Suspending imposition of sentence, the trial court placed defendant on five years of probation as to the oral copulation and sexual penetration counts and ordered him to serve 365 days in jail for the sexual exploitation count. As a condition of probation, defendant was required to register as a sex offender. (§ 290.)
Defendant appealed the judgment to this court and, while that appeal was pending, he filed a post-conviction motion to modify probation requesting that the sex offender registration requirement be eliminated. The trial court deferred its ruling until this court affirmed the judgment, at which time the trial court denied defendant’s motion.
Appealing the trial court’s denial of that motion, defendant contends the mandatory sex offender registration provision in section 290 violates equal protection of the law as it applies to him and constitutes cruel and unusual punishment. We affirm the judgment.
Facts and Proceedings
Defendant hosted a party where he engaged in sexual activity with a minor and surreptitiously videotaped sexual activity between two other individuals, one of whom was a minor. He was tried by a court and found guilty of oral copulation of a minor, sexual penetration of a minor with a foreign object (i.e., digital penetration), sexual exploitation of a minor and invasion of privacy.
On May 12, 2005, prior to sentencing, defendant filed a motion to preclude sex offender registration under section 290, arguing it denied him equal protection under the law and constituted cruel and unusual punishment. The trial court denied the motion and sentenced him to five years of probation, ordering him to serve 365 days in county jail and requiring him to register as a sex offender.
On June 21, 2005, defendant appealed the judgment of the trial court, claiming among other things that the mandatory sex offender registration for a conviction under section 288a, subdivision (b)(1) violated equal protection of the law as applied to him.
On May 3, 2006, prior to disposition of the appeal, defendant filed a “motion to modify probation to exclude registration pursuant to Penal Code § 290.” He again argued that the mandatory sex offender registration for a conviction under section 288a, subdivision (b)(1), violated equal protection. He also argued, on the same basis, that mandatory registration for convictions under sections 289, subdivision (h) and 311.3, subdivision (a) violated equal protection as well. The trial court deferred its ruling on the motion pending the outcome of the appeal.
On August 15, 2006, this court affirmed the judgment of the trial court. A remittitur issued on October 17, 2006.
On October 20, 2006, the trial court denied defendant’s motion to modify probation, finding the mandatory registration was neither a denial of equal protection nor cruel and unusual punishment.
Defendant filed the notice of appeal in this matter on November 16, 2006.
Discussion
Defendant contends that the mandatory sex offender registration provision in section 290 constitutes cruel and unusual punishment, and that it denies him equal protection because its application results in disparate treatment between him and similarly situated persons.
The People argue neither of defendant’s claims are properly before this court because they were either decided in his first appeal or could have been raised in that appeal but were not. Alternatively, the People argue that both claims fail on the merits. We address each of defendant’s claims in turn.
I
Equal Protection
Defendant’s original appeal was premised in part on a claim that the mandatory sex offender registration provision of section 290 violated his right to equal protection under the law. Analogizing to the recently decided case of People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), defendant, in the first appeal, characterized himself and others convicted of oral copulation with a minor (§ 288a, subd. (b)(1)) as similarly situated to those convicted of unlawful intercourse with a minor (§ 261.5) and argued that mandating registration under one but not the other constitutes disparate treatment and therefore violates equal protection. Acknowledging that his opening brief “only addressed application of Hofsheir [sic] to count 1 charging a violation [of] section 288a, subdivision (b)(1), ” defendant’s reply brief requested that this court “deem the arguments in the opening brief applicable to both counts 1 and 2.”
We did not expressly decide in the first appeal whether we would allow defendant to expand his argument to include count 2 alleging sexual penetration of a minor with a foreign object when that argument did not appear until the filing of defendant’s reply brief. Nor did we decide whether the registration requirements that attend unlawful oral copulation of a minor and sexual penetration of a minor deprived defendant of equal protection of the law. We found instead that his equal protection claim could not support reversal of the registration requirement because he was also required to register as a sex offender based on his conviction for sexual exploitation of a minor (§ 311.3, subdivision (a)) and he made no challenge to that requirement on the first appeal.
Although, in his original appeal, defendant did not similarly argue application of Hofsheier to counts 3 or 4 (§§ 311.3, subdivision (a), 647, subdivision (k)(1), respectively), he did so in his motion to modify probation. He argued there, as he does here, that based on the holding in Hofsheier, (1) digital penetration of a minor is indistinguishable from oral copulation and sexual intercourse, making mandatory registration for a section 289, subdivision (h) violation unconstitutional, and (2) mandatory registration for sexual exploitation of a minor is unconstitutional because one who violates section 311.3, subdivision (a) is similarly situated to one convicted of invasion of privacy (§ 647, subd. (k)(1)), a crime for which registration is not mandatory under section 290.
Without deciding whether defendant’s current claims are properly before this court, we consider his equal protection claim as it relates to the requirement that he register as a sex offender after having been convicted of a violation of section 311.3, subdivision (a) and conclude that it fails on the merits. With that, his claim that a violation of section 289, subdivision (h) also violates his right to equal protection of the law becomes moot because, even if we were to so hold, the registration order would remain in effect.
“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.” (In re Eric J. (1979) 25 Cal.3d 522, 530.) “The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only . . . that he will receive like treatment with all other persons similarly situated.” (People v. Enriquez (1977) 19 Cal.3d 221, 229, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) “Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, § 7; art. IV, § 16) precludes legislative classification with respect to persons who are different.” (People v. Jacobs (1984) 157 Cal.App.3d 797, 802.) What is required is that similarly situated persons with respect to the legitimate purpose of the law receive like treatment. (Ibid.)
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.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.)
Section 290 mandates that defendant register as a sex offender for violating section 311.3, subdivision (a). There is no such requirement for violating section 647, subdivision (k)(1). (§ 290, subd. (a)(2).) Defendant contends the Hofsheier ruling compels a finding that the mandatory registration requirement for section 311.3 is unconstitutional. We disagree.
At issue in Hofsheier was the constitutionality of mandatory sex offender registration for violation of section 288a (oral copulation) in light of the absence of such a requirement for violation of section 261.5 (statutory rape). The court first found that defendants convicted of section 288a, subdivision (b)(1) were similarly situated to those convicted of section 261.5 because both concerned sexual conduct with minors, the only difference being the nature of the sexual act. (Hofsheier, supra, 37 Cal.4th at p. 1199.) Noting a prior finding by the court in People v. Jones (2002) 101 Cal.App.4th 220 that there was no rational basis for the distinction between persons convicted of voluntary oral copulation and those convicted of voluntary sexual intercourse (Hofsheier, supra, at p. 1201), and finding no plausible rationale or reasonably conceivable factual scenario to justify such a distinction (id. at pp. 1202-1204), the court concluded that the statutory distinction in section 290 requiring lifetime registration by persons convicted of voluntary oral copulation with a minor of the age of 16 or 17 but not requiring the same of someone convicted of voluntary sexual intercourse with a minor of the same age “violates the equal protection clauses of the federal and state Constitutions.” (Id. at p. 1206.) The court eliminated the mandatory registration requirement under section 290 in the narrow circumstance where a person is convicted of violating section 288a, subdivision (b)(1) for “engaging in voluntary oral copulation with 16- or 17-year-old minors.” (Id. at p. 1208.)
As a person convicted of section 311.3, subdivision (a), defendant is not similarly situated to one convicted of voluntary sexual intercourse with a minor or voluntary oral copulation with a minor.
Penal Code section 311.3, subdivision (a), provides that, “[a] person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct.”
“The purpose of section 311.3 is to protect children from sexual abuse and invasion of their privacy rights through the development and duplication of photographs, movies and video tapes depicting them engaged in sexual conduct.” (In re Duncan (1987) 189 Cal.App.3d 1348, 1358.) Unlike sections 288a and 261.5, section 311.3, subdivision (a) does not distinguish between consensual and nonconsensual acts. Indeed, lack of consent is presumed and thus underlies the concern for, and need to protect, unwitting minors exposed to the potential of repeated victimization through use, reproduction and dissemination of the child’s image. “Legally incapable of consent, these children are perpetually exploited, first by the original performance of these acts; then by the creation of a permanent record of the conduct; again each time that record is reproduced; and then again when that photograph, film or video tape is viewed or passed on to another. In addition, these materials are used to induce other children to engage in sexual activity.” (In re Duncan, supra, 189 Cal.App.3d at p. 1358, fn. omitted.)
Defendant argues that, having been convicted under section 311.3, subdivision (a), he is similarly situated to one convicted of section 647, subdivision (k)(1) because he was convicted of both crimes “for the same conduct.” As we understand that argument, since section 647, subdivision (k)(1) does not carry a registration requirement, defendant cannot be required to register for a violation of section 311.3, subdivision (a) for the same conduct that he sees as videotaping underage classmates engaged in acts of sexual intercourse in his bedroom and “possessing” such tapes as an invasion of their privacy. We think that what he intends to argue is that filming the children while they were engaged in sex acts is both sexual exploitation and an invasion of their privacy. Since he is not required to register for invading their privacy, he should not be required to register for his sexual exploitation of them. In any event, we are not persuaded by that argument either.
As stated earlier, section 311.3 is aimed specifically at protecting children by criminalizing “the development and duplication of photographs, movies and video tapes depicting them engaged in sexual conduct, ” seeking not only to stop the act of recording the child, but also the repeated victimization of that child “long after the original misdeed [takes] place.” (In re Duncan, supra, 189 Cal.App.3d at p. 1358 & fn. 6.) Section 647, on the other hand, does not require that the victim be a minor, focusing instead on the method of invasion and whether the victim is in an area in which he or she has a reasonable expectation of privacy. (§ 647, subd. (k)(1).) We do not find defendant’s conviction under section 311.3 similarly situates him to one convicted of 647, subdivision (k)(1).
But even if we did, we have no difficulty finding a rational basis to require sex offender registration for a conviction for sexual exploitation of children where there is no such requirement for a violation of section 647, subdivision (k)(1). By its very nature, sexual exploitation of children--i.e., “development and duplication” of images of children engaged in sexual conduct--is a crime of repetition, committed for the purpose of revisiting the recorded images later for the offender’s own sexual gratification or that of someone else. “‘“The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]”’” (In re Alva (2004) 33 Cal.4th 254, 264, quoting Wright v. Superior Court (1997) 15 Cal.4th 521, 527; see People v. Barker (2004) 34 Cal.4th 345, 357.) Sexual exploitation of children is an offense which fits squarely within that legislative intent.
Because we conclude that persons convicted of 311.3, subdivision (a) are not similarly situated to those convicted of section 647, subdivision (k)(1) and, if they were, there is a rational basis supporting a registration requirement for the first type of violation as distinguished from the second, we do not find the mandatory registration requirement under section 311.3, subdivision (a), to be a violation of equal protection.
II
Cruel and Unusual Punishment
Unlike defendant’s equal protection claim, we do address his claim of cruel and unusual punishment to determine whether it is properly before this court. We conclude it is not.
An appeal from any post judgment order is permissible if the order affects the “substantial rights” of the defendant. (§ 1237, subd. (b).) However, such an order ordinarily is not appealable when the appeal “would merely bypass or duplicate appeal from the judgment itself.” (People v. Gallardo (2000) 77 Cal.App.4th 971, 981; see People v. Thomas (1959) 52 Cal.2d 521, 527.)
A defendant who has failed to assert his substantial rights in a timely manner when an appeal is available from the judgment no longer possesses substantial rights for appellate purposes. (People v. Howerton (1953) 40 Cal.2d 217, 220.)
There is nothing in this record to suggest that defendant was in any way precluded from asserting a cruel and unusual punishment claim in his original appeal. Indeed, he asserted that very claim in his May 12, 2005 presentencing motion to preclude sex offender registration, and did so again in his May 3, 2006 motion to modify probation. Offering no explanation for his decision not to raise that issue in his original appeal, defendant appears to rely on the recently decided Hofsheier case (along with other cases decided prior to the filing of his original appeal) as a basis for raising his claim now. In doing so, however, he concedes, as he must, that Hofsheier “did not directly address the issue of whether sex [offender] registration has yet reached the level of legal ‘punishment’ under the California or Federal Constitutions.” Consequently, nothing has changed as a result of Hofsheier or any other case cited by defendant to compel us to rule now on an issue that defendant could have asserted in his direct appeal. His failure to do so cannot be rectified by the filing of his motion to modify probation. A defendant’s motion to modify does not resurrect the issue for appeal when the time has passed. (People v. Djekich (1991) 229 Cal.App.3d 1213, 1219.) “To hold otherwise would condone extending the jurisdictional time limit for filing appeals through bootstrapping. [Citation.]” (Ibid.)
We conclude that, because defendant failed to assert his claim of cruel and unusual punishment in his direct appeal, he no longer possesses substantial rights in that regard for appellate purposes, and his appeal as to that claim is therefore dismissed.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.