Opinion
B162345.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. PHILLIPE GEORGE FANNING, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc J. Nolan and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.
Phillipe George Fanning was convicted in a jury trial of committing a lewd and lascivious act with a child under the age of 14, with a finding he engaged in substantial sexual conduct in the commission of the offense. (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8).)
All further statutory references are to the Penal Code unless otherwise indicated.
He appeals from the judgment and makes the following contentions: (1) it was statutory and federal constitutional error to refuse to instruct the jury that a mistake of fact was a defense to the charge; (2) the trial court erred and denied him equal protection by concluding that the jury finding of "substantial sexual conduct" in section 1203.066 made him ineligible for probation; and (3) requiring him to register as a sex offender denied him substantive due process and equal protection of the laws and constitutes cruel and unusual punishment under the state and federal Constitutions.
We reject his contentions and affirm the judgment.
FACTS
1. Trial Evidence
The offense was established by the victims testimony. On July 30, 2000, the victim was 13 years old, in the seventh grade, and living in a foster home in Los Angeles County. She testified that on July 30, 2000, she met appellant, "Bronco," on the street in front of her foster home. She and Bronco talked for an hour or so. Then she went with him in his car to a Downey motel and to his residence. Before she entered his car, she told him she was 18 years of age. On the drive to the motel, he asked how old she really was, and she told him she was age 13. Overnight at his residence, she voluntarily had sexual intercourse with him, and he ejaculated. The next morning, she went home and she was taken to a hospital. There, a sample of appellants semen was taken from her panties.
During cross-examination, defense counsel asked the victim whether she ever told anyone that she did not reveal her true age to appellant until after the sexual intercourse. She denied making such a statement, and the defense never produced evidence contradicting her trial testimony. She did testify that appellants reply to her was that she did not look and act as if she was age 13. She also told him her true name and that she was called, "Lady Psycho."
At trial, appellants identity as her assailant was established by her courtroom identification of him, by a serologists claim that there was only a one in a 21.5 trillion chance that "another random individual in the population could produce the same profile," and by a deputy sheriffs testimony that appellants moniker was "Bronco."
Appellant did not testify in defense.
Defense counsel argued mistaken identification and that the People had not proved guilt beyond a reasonable doubt.
The trial court granted the prosecutors request to charge the jury with CALJIC No. 10.67, that a mistake as to the victims age is not a defense to the charge. The prosecutor and defense counsel mentioned mistake of fact as to age during their final arguments, and inadvertently, the trial court failed to deliver CALJIC No. 10.67 to the jury. During deliberations, the jury inquired as to the law as to a mistake of the childs age, and the trial court realized that it had failed to charge the jury with CALJIC No. 10.67. It then read CALJIC No. 10.67 to the jury.
The jury returned a verdict of guilty.
2. Pretrial Motion
Prior to trial, defense counsel directed the trial courts attention to the decision in People v. Olsen (1984) 36 Cal.3d 638 (Olsen), which held that mistake of fact as to the victims age is not a defense to section 288. Claiming that appellant would testify at trial that he honestly and reasonably believed that the victim was age 18 or older, defense counsel asked the trial court to indicate whether Olsen was distinguished on its facts and whether the trial court would instruct the jury as to a mistake of fact as to the victims age. Defense counsel acknowledged that he was aware that to obtain a mistake of fact instruction, the defendant had to testify at trial to his state of mind. Counsel claimed that he needed the ruling to decide whether appellant should testify at trial and if counsel should stipulate to the DNA evidence.
The trial court told counsel the defense did not apply, and it refused to give the jury instruction.
Appellant renewed his objection about the instruction after the trial testimony, and the trial court indicated its ruling had not changed.
3. Sentencing
Before trial, defense counsel asked the trial court to strike the substantial sexual conduct allegation in the information (& sect; 1203.066, subd. (a)(8)) so that appellant would be eligible for probation. The trial court denied his request.
At sentencing, the trial court read and considered a preplea probation report that stated that appellant had two 1997 convictions: a conviction for felony evading a peace officer (Veh. Code, § 2800.2), for which he was on five years of formal probation, and a conviction for driving with a 0.08 percent blood alcohol or above (Veh. Code, § 23102, subd. (b)), for which he was on summary probation. The probation officer indicated that appellant had three law enforcement contacts suggesting that he had a drug problem. Without stating the specifics, the probation officer claimed that appellant was not performing satisfactorily on probation and that his probation in the unrelated case should be revoked and sentence imposed. The probation report indicated that appellant had sexual intercourse with the victim without using a condom and that he had ejaculated.
The defense sentencing memorandum asserted that appellant had been gainfully employed for the past five years. He was currently employed as a housekeeper at the Twin Palms Care Center in Downey, where he was a good, punctual, cooperative, and respectful employee. A longtime neighbor wrote a letter stating that appellant came from a loving home and was churchgoing. The memorandum claimed that after a revocation and a reinstatement on probation, appellant was now complying with the terms of his probation. Further, it asserted that the offense was not sophisticated or planned, and essentially, appellant failed to use good judgment by obtaining more information about the victim before having sexual intercourse with her.
In argument, defense counsel urged the lower term of imprisonment.
After considering counsels comments, the probation report, and the defense sentencing memorandum, the trial court found appellant ineligible for probation, rejected the Peoples request for a middle term sentence, and imposed a lower, three-year term in state prison. The trial court commented that the offense was not sophisticated and that the victim voluntarily engaged in sexual intercourse.
DISCUSSION
1. Availability of the Mistake of Fact Defense
Appellant contends that the trial court erred in ruling on his pretrial motion because a mistake of fact that a victim is 18 years of age or older is a defense to a violation of section 288, subdivision (a). In the alternative, he claims that as a matter of due process, he was entitled to raise a mistake of fact defense. We disagree.
Section 288 provides in subdivision (a): "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
We address appellants contention on its merits to forestall his claim of ineffective trial counsel.
The decision in Olsen, supra, 36 Cal.3d 638, settled the issue of the availability of the defense. In Olsen, the 13-year-old victim spent the night in a trailer in her familys backyard. Two young men, the defendant and another youth, who were friends of hers, joined her in the trailer. During the night, the victims father opened the trailer door as the defendant was having sexual intercourse with her. The evidence was conflicting about whether the victim consented to having sexual intercourse. Also, the victim testified that she told the youths that she was 16 years old, and the defendant told a police officer that he believed the victim was age 17. The trial court found defendant and the other youth guilty of violating section 288, subdivision (a), rejecting the argument that a good faith belief as to the age of the victim was a defense to the charge. (Olsen, at pp. 640-642.)
On appeal, the Olsen defendant argued that sections 20 and 26 made his good faith belief as to the victims age a defense to the charge. The Olsen court rejected the defendants claim, finding that the section 288s legislative purpose of protecting infants was not served by recognizing the defense, and "one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril." (Olsen, supra, 36 Cal.3d at p. 649.)
Section 20 provides as follows: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."
Section 26 in pertinent part provides: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three — Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent."
The Olsen decision is unequivocal. The mistake of fact defense was not available to appellant, and the trial court did not err by anticipating it would not instruct on mistake of fact. (Olsen, supra, 36 Cal.3d at p. 649.)
Appellant argues that his case is distinguished from Olsen because he believed that the victim was age 18 or older and capable of giving her consent to sexual activity, not as in Olsen, where the defendant only believed the victim was over age 14, but she was under age 18. Appellant raises a distinction without a difference. Olsens discussion of the prior judicial opinions on the subject, the overall legislative scheme, and the underlying policies of section 288 make it manifest that there is no mistake of age exception to the legislative ban on engaging in sexual activity with a child under the age of 14. (Olsen, supra, 36 Cal.3d at pp. 642-649; accord, In re Donald R. (1993) 14 Cal.App.4th 1627, 1629-1632 [rejecting a request to allow a reasonable mistake of age defense to a section 288 offense where the defendant is a minor].)
He also asserts that traditional concepts of fundamental fairness demand that he be permitted to raise such a defense, and he cites Morissette v. United States (1952) 342 U.S. 246, 255-256, (Morissette) in support of this assertion. In Morissette, the defendant was convicted of a federal felony offense of stealing and converting federal property to his own use. The federal statute with which the defendant in Morissette was charged did not contain an explicit requirement of mens rea. At trial, the defendant claimed that he took and sold the metal shells he had removed from federal property with a good faith, mistaken belief that they were abandoned by the government. (Id. at pp. 247-250.) The United States Supreme Court held that the defendant was essentially charged with a theft-type offense and that as a matter of fundamental fairness, he could not be convicted of that sort of an offense (converting government property), a nonpublic welfare offense, without a jury finding that he intended to steal the property. The court said that the trial court should have instructed the jury that the defendant was innocent if he acted under a mistake of fact. (Id. at pp. 250-276.)
Appellant argues by analogy to Morissette and other similar cases that his conviction is so serious that as a matter of fundamental fairness, he cannot be convicted of section 288 if he is morally blameless. (E.g., Dennis v. United States (1951) 341 U.S. 494, 500-517 [construing ambiguous language as to intent in the Smith Act as requiring an intent to overthrow the government by force and violence]; People v. Simon (1995) 9 Cal.4th 493, 519 [construing one section of the state Corporate Securities Law of 1968 with no explicit language requiring intent to require knowledge of the falsity or misleading nature of a statement or of the materiality of an omission, or criminal negligence in failing to investigate and discover them].)
However, the decision in Morissette and the other authorities are distinguished. These cases do not address a criminal statute aimed at protecting infants from adult sexual activity. It is not fundamentally unfair for the state to use some form of strict liability to ban adults from engaging in sexual activity with infants. (Garrison v. Elo (E.D. Mich. 2001) 156 F.Supp.2d 815, 830-832.) Several cases have rejected similar due process claims with regard to convictions of statutory rape. (Id. at pp. 830-832; U.S. v. Brooks (9th Cir. 1988) 841 F.2d 268, 269-270 [mistake of fact not constitutionally compelled].) Further, in U.S. v. Juvenile Male (9th Cir. 2000) 211 F.3d 1169, 1171, the Ninth Circuit rejected a claim that a mistake of age defense was constitutionally required in a United States territory prosecution for committing a sexual act with a child under the age of 12. Due process does not require that we read additional scienter into section 288. Nor does it dictate that the trial court was required to instruct as to a mistake of fact.
The trial court and this court are bound by the California Supreme Courts decision in Olsen, supra, 36 Cal.3d 638. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Eligibility for Probation
Pursuant to section 1203.066, the jury made the finding that appellant engaged in substantial sexual conduct in committing the offense. The trial court concluded on the basis of that finding, the appellant was ineligible for probation. On appeal, appellant contends that the trial court was mistaken about the operation of section 1203.066, and he was eligible for probation. He also claims that if he is statutorily ineligible for probation, section 1203.066 denies him equal protection of the laws. The contention is meritless.
a. Text of Section 1203.066
In pertinent part, section 1203.066 provides as follows: "(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: [& para;] . . . [¶] (3) A person who is convicted of a violation of Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older. [¶] . . . [¶] (8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age. [¶] . . . [¶] (b) `Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender."
The full text of section 1203.066 is as follows: "(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:
"(1) A person who is convicted of violating Section 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
"(2) A person who caused bodily injury on the child victim in committing a violation of Section 288 or 288.5.
"(3) A person who is convicted of a violation of Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older.
"(4) A person who used a weapon during the commission of a violation of Section 288 or 288.5.
"(5) A person who is convicted of committing a violation of Section 288 or 288.5 and who has been previously convicted of a violation of Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a, or 289, or of assaulting another person with intent to commit a crime specified in this paragraph in violation of Section 220, or who has been previously convicted in another state of an offense which, if committed or attempted in this state, would constitute an offense enumerated in this paragraph.
"(6) A person who violated Section 288 or 288.5 while kidnapping the child victim in violation of Section 207, 209, or 209.5.
"(7) A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim.
"(8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age.
"(9) A person who, in violating Section 288 or 288.5, used obscene matter, as defined in Section 311, or matter, as defined in Section 311, depicting sexual conduct, as defined in Section 311.3.
"(b) `Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.
"(c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:
"(1) The defendant is the victims natural parent, adoptive parent, stepparent, relative, or is a member of the victims household who has lived in the victims household.
"(2) A grant of probation to the defendant is in the best interest of the child.
"(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.
"(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. While removed from the household, the court shall prohibit contact by the defendant with the victim, except the court may permit the supervised contact, upon the request of the director of the court ordered supervised treatment program, and with the agreement of the victim and the victims parent or legal guardian, other than the defendant. As used in this paragraph, `contact with the victim includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts.
"(5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant.
"The court shall order the psychiatrist or psychologist who is appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.
"(d) The existence of any fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury."
b. Analysis
(1) The Defendants Eligibility for Probation Under Section 1203.066
Appellant argues that notwithstanding the plain language of section 1203.066, paragraphs (a)(3) and (a)(8) of that provision conflict. He states that under the statute, paragraph (a)(3) is not just one other cumulative, aggravating factor that makes him ineligible for probation. Paragraph (a)(3), unlike the other aggravating factors listed in subdivision (a), is not entirely aggravating. It is mitigating when a defendant acts with a mistaken belief as to the childs age. Since paragraph (a)(3) is the only mitigating circumstance contained in subdivision (a), he argues that the Legislature must have intended that a stranger who acts with a mistaken belief as to the childs age be eligible for probation, even when the defendant might be ineligible under another aggravating paragraph in subdivision (a). Because "substantial sexual conduct" is an element of section 288.5, and resident child molesters are eligible for probation pursuant to subdivision (c) of section 1203.066, he asserts that that is further reason to accept his interpretation of the statute. He asks why would the Legislature provide for probation eligibility for persons who violate sections 288 and 288.5, so long as they had an honest and good faith belief that the minor was 14 years or older and then take it away when the behavior in question involves "substantial sexual conduct," even though such conduct is an element of the crime itself, e.g., a violation of section 288.5?
Section 288.5 provides in pertinent part: "(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years."
"`The fundamental rule [of statutory interpretation] is that a court should ascertain the intent of the Legislature so as to effectuate the laws purpose, and in determining intent the court [must] first turn[] to the words used. [Citation.] [& para;] When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citations.] . . . `In the absence of statutory ambiguity or other constitutional infirmity, we cannot disregard the plain language of [the] statute[]." (People v. Lewis (1993) 21 Cal.App.4th 243, 247.)
We reject appellants statutory argument. Each circumstance listed in subdivision (a) of section 1203.066 is an aggravating circumstance. In the case of paragraph (a)(3), the aggravating circumstance is that the defendant is a stranger to the victim or befriended the child for the purpose of committing the offense. It is the Peoples burden to allege each aggravating circumstance under section 1203.066 that makes a defendant ineligible for probation and then to prove the circumstance at trial in order to make the defendant ineligible for probation. Each circumstance listed in section 1203.066, subdivision (a) is applied cumulatively to determine if the defendant is ineligible for probation. If the People have alleged and proved that a defendant is ineligible for probation because he is a stranger to the child (paragraph (a)(3)), he is entitled to negate that factor by proving that he acted under a mistake as to the childs age. The factor of a mistake of age is not a mitigating factor under the statute as a whole, but it is a defense if the People seek to bar him from probation based on the particular aggravating factor provided for in paragraph (a)(3).
In this instance, the People declined to allege and prove that appellant was ineligible for probation as he was a stranger, and it was unnecessary for appellant to negate the aggravating factor by proof of a mistake as to the childs age. The People alleged and proved appellants ineligibility for probation under a different paragraph, paragraph (a)(8) of section 1203.066. Thus he was ineligible for probation for an independent reason — his participation with the child in "substantial sexual conduct." The negating factor in subdivision (a)(3) explicitly does not apply to paragraph (a)(8). Because appellant engaged in substantial sexual conduct with the victim, he is ineligible for probation.
He further argues that there is an inconsistency between paragraph (a)(8) of section 1203.066 and section 288.5 that requires we accept his construction of subdivision (a). Appellants argument is flawed because there are two ways to violate section 288.5: by engaging in three or more acts of substantial sexual conduct with a child or by engaging in three or more acts of lewd or lascivious conduct as defined in section 288. Therefore, internally, the provisions of sections 1203.066 and 288.5 do not conflict. Offenders who commit a lewd act with a child amounting to substantial sexual conduct are not eligible for probation, whereas those who commit no substantial sexual conduct may be eligible for probation unless another paragraph making him ineligible is pled and proved. The legislative intent is apparent from the operation of section 1203.066: the Legislature intended that every defendant who engages in "substantial sexual conduct" with a child shall serve a state prison term. There is only one narrow exception, and that is where the offender is a resident child molester qualified for probation under the provisions of section 1203.066, subdivision (c).
Accordingly, we reject his claim.
(2) Ineffective Trial Counsel
Appellant makes a perfunctory claim in a footnote in his opening brief that trial counsels failure to introduce evidence of a mistake of fact in the trial court amounts to ineffective trial counsel. His claim is to no avail. Apart from being perfunctorily raised (People v. Stanley (1995) 10 Cal.4th 764, 793), the record sheds no light on why counsel acted or failed to act in the manner challenged, and counsel was not asked for an explanation for his failure to present evidence to support such a claim. There is a satisfactory explanation in the record for the lack of such testimony: appellant had no such defense. With this record, appellant must raise his claim of ineffective trial counsel in a petition for habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
c. Denial of Equal Protection
Appellant claims that his ineligibility for probation pursuant to section 1203.066, subdivision (a)(8), denies him equal protection of the laws. We reject the claim.
A similar claim was raised and rejected in People v. Wutzke (2002) 28 Cal.4th 923, 943-944 (Wutzke). There, the defendant fondled the four granddaughters of the woman with whom he had lived for 20 years. He had an undisputed grandfatherly bond with the children. The trial court determined that he was ineligible for probation because he had molested multiple victims. (§ 1203.066, subd. (a)(7).) The question presented was whether he could avoid the mandatory 15-year-to-life prison terms under the One Strike law (§ 667.61) because he was a "relative" of the victims within the meaning of sections 1203.066, subdivision (c)(7), and 667.61, subdivision (e)(5), and thus eligible for probation. He also alleged a denial of equal protection because he was similarly situated to a resident child molester.
The Wutzke court reviewed the legislative scheme for sentencing child molesters, including section 1203.066. It recognized that the defendant fell into a category of offenders for which state prison was mandatory. The only exception to the rule of no probation for a multiple-victim molester is for the victims natural parent, adoptive parent, stepparent, relative, or a member of victims household who has lived in the victims household. After examining the Wutzke defendants claim, the court declined to define "relatives" as loosely as proposed by the defendant so as to include a long-term intimate partner of a grandparent. (Wutzke, supra, at pp. 933-935.)
There are additional requirements in subdivision (c) of section 1203.066 that the enumerated relative or resident child molester also must meet to be granted probation.
In Wutzke, the court found that section 1203.066 evidenced the Legislatures intolerance for child molesters. It described the evidence produced during the legislative hearings on the 1981 act which produced section 1203.066. The legislators heard that mandatory imprisonment was the best means to deter the sexual exploitation of children. The experts testifying at the hearing agreed that section 288 and similar offenses are typically committed by pedophiles who are "`fixated" sexually on children and who are adept at ingratiation and intimidation. The experts said that commonly their victims do not come forward and their crimes go unpunished. These offenders are often not rehabilitated and habitually reoffend. The experts agreed, however, that there was a narrow class of offenders for which imprisonment do more harm than good. These were intrafamilial offenders. The experts explained that the victims in intrafamilial molestations feel immense guilt for bringing accusations against their molesters and often suffer dire consequences from making their complaints of sexual abuse. The offenders themselves often commit the offenses for situational and opportunistic reasons. Many of these offenders can successfully reform with treatment and punishment, particularly where the family supports the recovery efforts. (Wutzke, supra, 28 Cal.4th at pp. 935-937.) In response to this evidence, in enacting section 1203.066, the Legislature carved out a limited exception to the rule of imprisonment for that class of offenders who were close relatives of the victim or members of the victims household as defined in section 1203.066, subdivision (c). (Wutzke, at pp. 935—942.) After examining the legislative history, the court concluded that the Legislature carved out only a very narrow class of relatives as potential candidates for probation under subdivision (c) and that class did not include the grandmothers boyfriend.
The Wutzke analysis for the defendants equal protection claim started from the proposition that "Lawmakers are entitled to sanction criminal conduct more or less severely based on the surrounding circumstances, including the dangerousness of the offender, the vulnerability of the victim, and the nature of the parties relationship." (Wutzke, supra, 28 Cal.4th at p. 942.) The Legislature "can reasonably encourage young victims and other loved ones to break their silence concerning intrafamilial or household abuse by not requiring all offenders to be imprisoned for the rest of their natural lives. The pressures that might otherwise cause a victim to shun disclosure — damage to the family name, loss of the family breadwinner, and a disruption in living arrangements and marital relationships — are either missing or muted where the defendant is neither a `relative nor a `household member under section 1203.066, subdivision (c)(1). . . . Lawmakers could conclude that [persons who are not resident child molesters] are more likely to be dangerous because no blood, marital, or other legal connection to the victim exists." (Id. at pp. 942-943.)
The defendant in Wutzke argued that providing special treatment for "relatives" and "household members," while denying such treatment to other defendants who had close emotional relationships to the victims in general, did not serve the purposes behind section 1203.066, subdivision (c). The court rejected his equal protection claim, explaining that equal protection of the laws means: "`that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. [Citation.] In determining whether such a deprivation has occurred, the courts ultimate task is to examine the validity of the underlying purpose, and the extent to which the disputed statutory classification promotes such purpose. [Citations.] [¶] As a foundational matter, however, all meritorious equal protection claims require a showing that `the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] In other words, [neither the state nor federal Constitution] `precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different . . . "with respect to the legitimate purpose of the law." [Citations.]" (Wutzke, supra, 28 Cal.4th at pp. 943-944.)
The court then concluded that the Wutzke defendant was not similarly situated for sentencing purposes to a probation-eligible, multiple-victim molester who is the childs relative. It said: "As we have seen, there is evidence of a unique dynamic between underage victims and the class of sexual offenders targeted by the statute, such that special measures are needed to prompt the reporting of such crimes in the first place. It also appears the features that define these statutory relationships make such offenders more amenable to treatment and less likely to reoffend once conviction has occurred. Hence, compared to someone who lacks the necessary statutory connection and who may have developed a quasi-familial relationship for perverse sexual purposes, the family and household offenders listed in section 1203.066(c)(1) are potentially less dangerous to society at large. Of course, the requisite blood, legal, or residential relationship not only gives rise to the kind of close familial bond the statute seeks to preserve, but also offers some tangible proof that it exists." (Wutzke, supra, 28 Cal.4th at p. 944.)
Appellant makes an argument that is similar to the one asserted and rejected in Wutzke. He compares himself to that class of relative/resident child molesters who are eligible for probation notwithstanding a finding they committed substantial sexual conduct with their victim. He argues that his ineligibility for probation denies him equal protection because he is far less culpable than the relative/resident child molester who engages in repeated sexual activity with his victim and who is eligible for probation pursuant to that paragraph and subdivision (c) of section 1203.066. However, the decision in Wutzke has settled his equal protection claim. If the Wutzke defendant is not similarly situated with respect to the purpose of section 1203.066 to a resident child molester, then neither is appellant, a complete stranger to the child. (Wutzke, supra, 28 Cal.4th at p. 944.) The Legislature can rationally decide that a person who engages in substantial sexual conduct with a child is more morally culpable and potentially more dangerous to his child victim than the regressed or situational offender who knows the child. (Cf. People v. Thompson (1988) 205 Cal.App.3d 871, 880-881 [rejecting an equal protection claim by a defendant who is precluded from obtaining probation as he deliberately befriended the victim for the purpose of committing the offense].)
Appellant was not denied equal protection of the law.
3. Constitutional Challenges to the Section 290 Obligation to Register as a Sex Offender
Appellant has leveled three constitutional challenges to his obligation pursuant to section 290 to register as a sex offender. He claims that as applied to him, the requirement that he register as a sex offender denies him substantive due process and equal protection of the laws and constitutes cruel and unusual punishment. We reject his contention.
The flaw in appellants constitutional claims is that they are predicated on a set of facts that do not arise in the record. Appellant did not testify to a mistake of age at the trial, and the Peoples evidence did not establish appellants state of mind with regard to a mistake of age. At sentencing, appellant failed to testify to the circumstances surrounding the offense, much less testify personally to his state of mind so that the trial court had evidence before it of this mitigating circumstance. We cannot speculate based upon the unsworn and hearsay pretrial proffer by defense counsel that appellants circumstances are as he claims on appeal. (United States v. Raines (1960) 362 U.S. 17, 21-22 [one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional]; Barrows v. Jackson (1953) 346 U.S. 249, 255 & fn. 3 [a person cannot challenge the constitutionality of a statute unless he shows that he is injured by its operation]; Ward v. Taggart (1959) 51 Cal.2d 736, 742 [the opposing party should not be required to defend for the first time on appeal against a new theory that contemplates a factual situation the consequences of which are open to controversy and were not put into issue or presented at the trial].)
Because all of appellants constitutional arguments are predicated upon a factual theory that was never established at the trial or at sentencing — that his culpability is equivalent to that of one adult engaging in consensual sexual activity with another adult — we reject the constitutional claims. The record shows that appellant, age 23, took advantage of an undisciplined 13-year-old girl after she told him her true age. He had unprotected sexual intercourse with her, which threatened her health and her mental well-being and exposed her to sexually transmitted diseases and pregnancy. His circumstances in our view do not demonstrate a denial of due process or equal protection. Nor do they distinguish him for more lenient treatment.
The Attorney General argues that a mere failure to make the objections in the trial court waives the constitutional claims. We reject the attorney generals particular theory of waiver. However, we do agree that appellants claim of cruel and unusual punishment pursuant to People v. Dillon (1983) 34 Cal.3d 442 is waived as it is a factual claim that was not made in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
The Supreme Court recently granted review in a case involving the question of whether requiring sex offender registration for a misdemeanor conviction is cruel and unusual punishment under the federal and state Constitutions. (In re Alva (2001) 89 Cal.App. 4th 758, review granted Sept. 19, 2001, S098928.) The Alva court concluded that sex offender registration is not "punishment" under the Eighth Amendment to the United States Constitution.
Moreover, the authorities overwhelmingly have rejected similar claims of a denial of substantive due process and of equal protection. (E.g., People v. Mills (1978) 81 Cal.App.3d 171, 174-182 [§ 290 registration is not unconstitutional on the grounds it constitutes cruel and unusual punishment, it violated equal protection, and it impinged on the offenders constitutional rights to travel and to privacy]; Russell v. Gregoire (9th Cir. 1997) 124 F.3d 1079, 1093-1094 [rejected a substantive due process challenge on grounds the sex offender had no protected liberty interest because the information to be disseminated is already available to the public and the statute has a rational basis]; Paul P. v. Verniero (3d Cir. 1999) 170 F.3d 396 [even if a sex offender has some privacy protection, his privacy interest is outweighed by the governments compelling interest in preventing further sex offenses]; see People v. Jones (2002) 101 Cal.App.4th 220, 229-233 [requiring the registration of persons convicted of oral copulation with a person under the age of 18 does not deny the sex offender equal protection as the legislation is rationally related to a legitimate state interest; defendant did not carry his burden of showing a suspect classification or that his classification significantly infringes upon a fundamental right].)
Appellant again makes a perfunctory claim of ineffective trial counsel because his counsel failed at trial to raise such issues for the trial courts consideration. We do not need to address his claim as he fails to make an argument and cite pertinent authorities to support the claim. (People v. Stanley, supra, 10 Cal.4th at p. 793.) Even if we addressed the claim, we would not find it requires a reversal. We assume that appellant did not testify to a mistake of age defense at trial or at sentencing because his true circumstances facts are as the victim testified — he was well aware of the victims tender age before he had sexual intercourse with her. On this record, appellant must raise the ineffectiveness of his trial counsel in a petition for habeas corpus. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, Acting P.J. and DOI TODD, J.