Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF98063
BUTZ , J.Defendant Russell Adrian Bruch pleaded no contest to distribution or exhibition of lewd material to a minor over the Internet in violation of Penal Code section 288.2, subdivision (b), for which he was sentenced to 180 days in jail and five years’ probation on specified terms and conditions, including the requirement that he register as a sex offender. After expiration of the probationary period, defendant filed a motion seeking relief from the registration requirement. Defendant appeals the trial court’s denial of that motion on the ground that the mandatory registration requirement violates the equal protection clauses of the federal and state Constitutions. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are summarized from the pre-plea probation report.
In September 1998, defendant received an e-mail from one of his wife’s female students, then 16 years old, regarding an audition for a play. Over the course of the next month, defendant continued to communicate with the victim, gradually including references to sexual behavior and trying to coax her to meet with him for lunch or a play. When the victim became frightened by defendant’s e-mails, her mother requested assistance from law enforcement. Police eventually took over communication with defendant. Over the next several months, defendant became more insistent about meeting the victim, and his communications grew more sexually oriented. A liaison was arranged. Defendant arrived at the agreed-upon location with several items, including a package of condoms and a nude photo of himself. He was arrested and taken into custody.
The complaint charged defendant with attempted unlawful sexual intercourse (§§ 664, subd. (a) & 261.5, subd. (c)--count 1), distribution or exhibition of lewd material to a minor over the Internet (§ 288.2, subd. (b)--count 2) and attempted distribution of lewd material to a minor (§§ 664, subd. (a) & 288.2, subd. (b)--count 3). He entered a plea of no contest to count 2 in exchange for no immediate state prison, dismissal of the remaining counts and referral to probation. The trial court suspended imposition of sentence and placed defendant on five years’ probation according to certain terms and conditions, including the requirement that defendant register as a sex offender pursuant to section 290. Defendant acknowledged his responsibility to register as a lifetime requirement by signing a notice of registration requirement.
In 2006, after expiration of the probationary period, defendant filed a motion for relief from section 290’s registration requirement, arguing it was contrary to the holding in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). Although the trial court expressed its inclination to grant defendant’s request, it noted the lack of “legal authority . . . to do it” and denied the motion.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends, by analogy to Hofsheier, supra, 37 Cal.4th 1185, that the mandatory sex offender registration requirement for “any felony violation of [s]ection 288.2,” as set forth in section 290, subdivision (a)(2)(A), violates the equal protection afforded him by the federal and state Constitutions because it “directs lifetime registration for certain voluntary sexual acts between minors over 16 and adults but not others.” Should we reject that argument, defendant urges, we should instead remand the matter back to the trial court and instruct it to exercise its discretion to determine whether relief from the registration requirement is appropriate.
The People argue defendant’s appeal should be dismissed because (1) the trial court lacked jurisdiction over the issue because defendant’s motion was submitted after expiration of his probationary term, (2) defendant waived the claim when he entered his negotiated plea of no contest, and (3) defendant failed to obtain a certificate of probable cause. The People further argue that, even if defendant’s claim were proper, the analogy to Hofsheier has no merit and the claim must fail. We agree that defendant’s failure to obtain a certificate of probable cause is fatal, and therefore need not address the other issues raised by the People.
An appeal from a judgment upon a plea of no contest shall not be taken unless the defendant first files a sworn statement attesting to the reasonable grounds for such appeal and obtains a certificate of probable cause from the trial court. (§ 1237.5.) There is an exception to that rule, however, when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) The challenge to a negotiated sentence is a challenge to the validity of the plea. (Id. at pp. 76-77.)
Although the record does not contain a reporter’s transcript of the hearing at which defendant entered his plea, it does contain defendant’s declaration, as well as his attorney’s, regarding the terms and conditions of the negotiated agreement. In short, defendant pleaded no contest to the charge of violation of section 288.2, subdivision (b), in exchange for dismissal of the remaining counts against him, no immediate state prison and referral to probation. Counsel’s declaration attests, among other things, that defendant was informed that he “must register as a sex offender under Penal Code Section 290.” The order admitting defendant to probation specifically states that defendant shall “register with his/her local police agency as a sex offender.” Defendant also executed the notice of registration requirement confirming his understanding that he would be required to register as a sex offender for life. The registration requirement was part and parcel of the negotiated plea agreement. By contesting the validity of an element of the negotiated plea agreement--mandatory registration as a sex offender as a condition of probation--defendant is, in substance, attacking the validity of the plea. Accordingly, his failure to obtain a certificate of probable cause bars review of his claim. (People v. Shelton (2006) 37 Cal.4th 759, 768-769; People v. Panizzon, supra, 13 Cal.4th at pp. 74-76, 78-79.)
In any event, defendant’s equal protection claim fails on the merits. “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.)
Defendant likens the circumstances of his case to those discussed in Hofsheier, a case in which this state’s highest court found the requirement mandating sex offender registration for voluntary oral copulation of a 16-year-old by a 22-year-old (§ 288a, subd. (b)(1)) violated equal protection where voluntary sexual intercourse with a similarly situated victim (§ 261.5) did not carry the same requirement. (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207.) The analogy is unavailing.
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 (unlawful sexual intercourse). 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. 1200.) Noting that there was no rational basis for the statutory distinction between persons convicted of voluntary oral copulation and those convicted of voluntary sexual intercourse, 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.” (Hofsheier, at p. 1207.) 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.” (Hofsheier, at p. 1208.)
The statute at issue here is section 288.2, subdivision (b), the primary focus of which appears to be dissemination of lewd materials to a minor over the Internet. Unlike sections 288a and 261.5, section 288.2 does not distinguish between consensual and nonconsensual acts, nor does that section differentiate based upon the age of the victim (requiring only that the victim be a minor), and therefore does not contain a progressive scheme of punishment. (§ 288.2, subds. (a) & (b).) We cannot conclude that persons convicted of 288.2, subdivision (b) are similarly situated to those convicted of either section 288a or section 261.5 and, as the People aptly note, defendant has failed to identify any other “similarly situated” group not required to register. We therefore reject defendant’s equal protection claim.
In doing so, we likewise reject defendant’s request that we remand the issue and instruct the trial court that exercise of its discretion would be appropriate in spite of the express statutory language mandating imposition of the registration requirement.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., HULL , J.