Opinion
A135605
09-30-2014
The PEOPLE, Plaintiff and Respondent, v. Duwan D. FIELDS et al., Defendants and Appellants.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Duwan D. Fields. Mark Shenfield, Guerneville, under appointment by the Court of Appeal, for Defendant and Appellant Claudiens Santrail Griffin. Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, René A. Chacón and Nanette Winaker, Deputy Attorneys General for Plaintiff and Respondent.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Duwan D. Fields.
Mark Shenfield, Guerneville, under appointment by the Court of Appeal, for Defendant and Appellant Claudiens Santrail Griffin.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, René A. Chacón and Nanette Winaker, Deputy Attorneys General for Plaintiff and Respondent.
Opinion
Margulies, Acting P.J. A jury convicted defendants Duwan D. Fields and Claudiens Santrail Griffin of eight counts of pimping, pandering, and committing sexual offenses against minors. Defendants contend their convictions must be reversed due to asserted instructional errors. Griffin further contends his conviction for oral copulation with a minor is not supported by substantial evidence and his felony sentence for the offense violates his right to equal protection of the law. Both defendants challenge a restitution award made jointly and severally against them. We reverse the order of restitution against defendant Fields, and otherwise affirm the judgments against both defendants.
I. BACKGROUND
Fields was charged by amended information with pimping Jane Doe 2 (count one) and Jane Doe 3 (count two), minors over the age of 16 (Pen.Code, § 266h, subd. (b) ); and engaging in an act of unlawful sexual intercourse with Jane Doe 3, a minor more than three years younger than Fields (§ 261.5, subd. (c); count three).
All statutory references are to the Penal Code.
Griffin was charged with committing lewd acts upon Jane Doe 1, a child under the age of 14 (§ 288, subd. (a); counts four & five); pimping Jane Doe 3, a minor over the age of 16 (§ 266h, subd. (b) ; count six); pandering Jane Doe 3 (§ 266i, subd. (a); count seven); forcibly raping Jane Doe 3 (§ 261, subd. (a)(2); count eight); and participating in an act of oral copulation with Jane Doe 3, a minor under the age of 18 (§ 288a, subd. (b)(1); count nine). Griffin entered an open plea of no contest to count four, which was amended to identify the lewd act as oral copulation. A jury was sworn and impaneled on March 7, 2012. After 11 days of testimony, the jury found both defendants guilty of all of the charges against them.
A. Trial Evidence
On April 20, 2009, three female foster children—13–year–old Jane Doe 1, 17–year–old Jane Doe 2, and 16–year–old Jane Doe 3—ran away from a group home for children in protective custody operated by Child Protective Services in Sacramento. They got a ride from a stranger to an area of Sacramento known as Del Paso Heights and walked to an apartment Jane Doe 1 knew about in the area. At the apartment, they met some males, including Griffin. Later, the girls met Fields and Fields's girlfriend, S.G., who was Griffin's 16–year–old sister.
In a car driven by Fields, Griffin, Jane Doe 3, and S.G. left Del Paso Heights after a few days and went to Fields's condominium in San Ramon. Jane Doe 1 and Jane Doe 2 also went to San Ramon. Just before leaving for San Ramon, Jane Doe 3 overheard a telephone call made by Griffin in which he told someone “he had girls ready to make money and they could go to San Francisco.”
Soon after they arrived in San Ramon, Fields and S.G. told Jane Doe 2 “they wanted me to get ready to ... go do this stuff.” S.G. gave Jane Doe 2 clothes to wear, and helped her get ready to go. Fields, S.G., Jane Doe 2 and Jane Doe 3 went to a house in San Francisco, and then left to go to a hotel. On the way to the hotel, Jane Doe 2 realized that she, Jane Doe 3, and S.G. “were actually going to be having sex with other people.” When they arrived at the hotel, S.G. and Fields told Jane Doe 2 “to show [Jane Doe 3] how to moan and groan.” Also, she should “[j]ust do whatever the guy asked” and to “act like you're enjoying it and whatnot.” They warned, however, “to make sure you get the money from the guy.”
As instructed, Jane Doe 3 went up to the hotel room first to perform oral sex on the client as a means of ensuring he was not a police officer; then, “if everything was okay and he allowed [her] to go down and stuff ... then ... [Jane Doe 3] would tell him to go get [Jane Doe 2].” Later, when both Jane Doe 2 and Jane Doe 3 were in the room with the client, they both engaged in sexual intercourse with him.
From that night until April 28, 2009, Jane Doe 2 went out with Fields and S.G. to meet with clients every night but one. Jane Doe 2 could not go that one night because she was “hurting too much” because of an appointment in which she and Jane Doe 3 had met with “a room full of guys.” Jane Doe 2 had had sexual intercourse with four men at that appointment; in addition, the men had digitally penetrated both Jane Doe 2 and Jane Doe 3. After that appointment, “[a] lot of money was collected and it was [Fields] and [S.G.]” who ultimately got the money.
Jane Doe 2 testified neither Fields nor S.G. ever gave her money for what she “had to do.” S.G. told Jane Doe 2 that the money she had earned was used to pay for clothing. The girls stayed in Fields's home and were also provided food. S.G. generally answered telephone calls from clients responding to ads Fields had placed on Craigslist; Jane Doe 2 did so on one occasion as well. When answering these calls, there was a “script” they were supposed to follow, and a pricing structure for the various sexual acts the girls could perform on the clients. Fields and S.G. drove the girls to and from each appointment, and collected the money earned. Jane Doe 2 and Jane Doe 3 would use condoms provided by Fields and S.G.
Jane Doe 1 did not go out to any appointments with clients. Griffin told Jane Doe 1 that when she turned 14, she would “be put on the track,” and would “wind up being a hoe like the others.” Griffin talked about being a pimp; specifically, he said, “he just be glad when he got the money.” Griffin told Jane Doe 1 “[t]hat if any of us told, that they'd find us.” While in San Ramon, Jane Doe 1 engaged in sexual intercourse with Griffin, and she orally copulated him.
Sacramento County Sheriff's Detective Michelle Hendricks defined “the track” as “basically, walking the stroll, and you had sex for money with strange men.”
Jane Doe 3 testified she went on several appointments with Jane Doe 2 and S.G. During that time, she also engaged in sexual intercourse with Griffin several times. On one of these occasions, she told Griffin “no” but he held her tightly with his hands and continued to engage in sexual intercourse even after she tried “to push him off.” Jane Doe 3 told Detective Hendricks Griffin “raped” her on that occasion. On another occasion, Jane Doe 3 engaged in sexual intercourse with Fields after S.G. called Jane Doe 3 into the bedroom she shared with Fields and asked Jane Doe 3 if she wanted “to have sex with her man.”
On April 28, 2009, about 1:34 a.m., Foster City Police Officer Stephen Sealy stopped a car driven by Fields; S.G. was in the front passenger seat, and Jane Doe 2 and Jane Doe 3 were seated in the back seat of the car. Upon the officer's initial contact with the females in the car, they provided him with false names and dates of birth. Officer Sealy testified Jane Doe 2 and Jane Doe 3 were scantily dressed in “pretty tight clothes.”
The girls had been instructed to use false names and ages by Fields and S.G.
After defendants were arrested, police searched the San Ramon residence and found, among other items, a tray of condoms in the bedroom shared by Jane Doe 1, Jane Doe 2, and Jane Doe 3, a piece of paper with “call back numbers,” and a listing of “John type services.” Fields's cell phone number was included in a Craigslist erotic services ad discovered in this case.
Criminalist Da–Shing Peng testified the sperm found on underwear collected from Jane Doe 1 was Griffin's to a very high level of statistical certainty. During an interview with police, Griffin admitted Jane Doe 1 and Jane Doe 3 had orally copulated him.
Holly Joshi, a police sergeant with the Oakland Police Department, testified as an expert on the subjects of child exploitation and pimping. Sergeant Joshi described the different models of pimping and pandering operations, explaining there is always a pimp at the top and there may also be a “pimp in training.” The “bottom girl” is one who has authority over the other prostitutes in the operation, and has generally been around the pimp the longest amount of time. Based on her review of the materials in this case, she opined that Fields was the pimp and Griffin was a “pimp in training,” or “baby pimp.” She explained a pimp generally does not allow another male in the home with “his stable of girls” unless he is a pimp-in-training. She believed S.G. was the “bottom girl,” and Fields, as the pimp-in-charge, exerted psychological control on S.G. and the other prostitutes.
B. Judgment and Appeal
The trial court sentenced Griffin to state prison for a total term of three years eight months, and sentenced Fields to state prison for a total term of eight years. Notices of appeal were timely filed in May 2012.
II. DISCUSSION
A. Griffin's Oral Copulation Conviction (Count Nine)
Griffin contends the prosecution wholly failed to establish the corpus delicti of the crime of oral copulation with Jane Doe 3. In the alternative, if this court finds the evidence was sufficient to support his conviction, Griffin maintains his felony sentence for that offense violated his right to equal protection because a person of his age convicted of unlawfully engaging in sexual intercourse with the same victim could only have been punished as a misdemeanant.
See footnote *, ante .
2. Equal Protection
A violation of section 288a, subdivision (b)(1) is punishable either as a felony or a misdemeanor. In this case, the trial court treated Griffin's offense as a felony, sentencing him to eight months in prison (one-third the midterm) for the offense, to be served consecutively to the three-year sentence it imposed on one of the other counts. Had Griffin been found guilty of unlawfully engaging in sexual intercourse with Jane Doe 3, the crime could only have been punishable as a misdemeanor under section 261.5, subdivision (b). According to Griffin, this discrepancy in punishment violates his right to equal protection of the law under the reasoning of People v. Hofsheier (2006) 37 Cal.4th 1185, 39 Cal.Rptr.3d 821, 129 P.3d 29 (Hofsheier ).
The People argue Griffin failed to raise his equal protection claim in the trial court, and has therefore forfeited it on appeal. (See People v. Carpenter (1997) 15 Cal.4th 312, 362, 63 Cal.Rptr.2d 1, 935 P.2d 708 [holding that a defendant could not raise an equal protection challenge for the first time on appeal].) The People have nonetheless fully briefed the issue, and we will therefore exercise our discretion to address the merits of the issue.
Hofsheier involved an adult offender convicted under section 288a, subdivision (b)(1) of a voluntary sexual act with a minor 16 years or older. (Hofsheier, supra, 37 Cal.4th at p. 1198, 39 Cal.Rptr.3d 821, 129 P.3d 29.) All such offenders were required by state law to register for life as sex offenders under section 290. (Hofsheier, at p. 1198, 39 Cal.Rptr.3d 821, 129 P.3d 29.) In contrast, an adult offender convicted of sexual intercourse with a minor 16 years or older under section 261.5 was not then subject to mandatory registration. (Hofsheier, at p. 1197, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The defendant in Hofsheier asserted the distinction in treatment under section 290 violated his right to equal protection. (Hofsheier, at p. 1198, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The Supreme Court first addressed the threshold question of whether the law being challenged—the sex offender registration statute—adopted a classification affecting two or more similarly situated groups in an unequal manner. (Id. at p. 1199, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court noted both of the criminal statutes involved concerned sexual conduct with minors. (Id. at p. 1200, 39 Cal.Rptr.3d 821, 129 P.3d 29.) Since the only difference between the two offenses was the nature of the sexual act, the court found persons convicted under the two statutes were “ ‘sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.’ ” (Ibid., quoting People v. Nguyen (1997) 54 Cal.App.4th 705, 715, 63 Cal.Rptr.2d 173.) Because the case involved no classification subject to heightened scrutiny under established equal protection jurisprudence, the court held the rational relationship test applied. (Hofsheier, at pp. 1200–1201, 39 Cal.Rptr.3d 821, 129 P.3d 29.) In other words, in view of the objectives of the sex offender registration law, was there any reasonably conceivable state of facts that could provide a rational basis for making persons convicted of voluntary oral copulation with a minor over age 16 automatically subject to lifetime registration while treating persons convicted of voluntary sexual intercourse with a minor of the same age under section 290's discretionary provisions? (Hofsheier, at pp. 1200–1201, 39 Cal.Rptr.3d 821, 129 P.3d 29.)
We use the term “voluntary” in the special and restricted sense in which it is used in the Hofsheier opinion to indicate the minor victim willingly participated in the act and none of the statutory aggravating circumstances—such as the defendant's use of force or the victim's unconsciousness or intoxication—apply. (See Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2, 39 Cal.Rptr.3d 821, 129 P.3d 29.) We recognize, however, a minor is not capable of legally consenting to a sexual act and do not intend to intimate otherwise.
Former section 290, subdivision (a)(2)(E) provided that a person convicted of certain other sexual offenses not included specifically in section 290, including section 261.5, subdivision (b), may be required to register “ ‘if the court finds ... that the person committed the offense as [a] result of sexual compulsion or for purposes of sexual gratification’ ” and “state[d] the reasons for requiring lifetime registration as a sex offender.” (Hofsheier, supra, 37 Cal.4th at p. 1197, 39 Cal.Rptr.3d 821, 129 P.3d 29.) Former section 290 thus gave “the trial court discretion to weigh the reasons for and against registration in each particular case.” (Hofsheier, at p. 1197, 39 Cal.Rptr.3d 821, 129 P.3d 29.)
Hofsheier answered this question in the negative. The Attorney General in Hofsheier took the position it was “ ‘reasonably conceivable’ that adults who engage in voluntary oral copulation with minors 16 or 17 years of age are more likely to repeat their offense than adults who engage in voluntary sexual intercourse with minors of the same age.” (Hofsheier, supra , 37 Cal.4th at p. 1203, 39 Cal.Rptr.3d 821, 129 P.3d 29.) This in turn was based solely on media reports that due to the risk of pregnancy and HIV from engaging in sexual intercourse, oral copulation had become more prevalent among adolescents in preceding years. (Ibid. ) The court found the Attorney General's thesis about relative reoffense rates to be wholly lacking in empirical support. (Id. at p. 1203, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court was unable to find any plausible basis for the distinction in treatment under the sex offender registration law based on any reasonably conceivable facts, and indeed found mandatory lifetime registration of all persons convicted under section 288a, subdivision (b)(1) to be “a historical atavism dating back to a law repealed over 30 years ago that treated all oral copulation as criminal regardless of age or consent.” (Hofsheier, at p. 1206, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court concluded the Legislature could require lifetime registration both for persons convicted of voluntary oral copulation and for those convicted of voluntary sexual intercourse, but it could not treat them differently under that law. (Id. at p. 1207, 39 Cal.Rptr.3d 821, 129 P.3d 29.)
Hofsheier did not address, however, the issue Griffin raises—whether there is a rational reason based on the purposes of the criminal sentencing laws that the Legislature might have wanted to allow trial courts greater discretion over the criminal penalty for oral copulation between adults and 16– or 17–year–old minors than the penalty for sexual intercourse between the same persons. Griffin also relies on State v. Limon (2005) 280 Kan. 275, 122 P.3d 22 (Limon ). Limon invalidated a Kansas “Romeo and Juliet” statute providing more lenient treatment for voluntary sexual intercourse or sodomy with a 14– or 15–year–old minor relative to statutory rape and sodomy if the offender was less than four years older than the victim, and the victim and offender were members of the same sex. (Id. at p. 276, 122 P.3d 22.) In other words, the Kansas leniency statute made no distinction between voluntary sexual intercourse and voluntary oral copulation between young persons, but it excluded homosexual acts from its coverage. Based on Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (Lawrence ), Limon held Kansas's statutory distinction between homosexual and heterosexual acts violated the equal protection clauses of the state and federal Constitutions. (Limon, at pp. 277, 301–302, 122 P.3d 22.) We do not have that issue in this case.
Lawrence invalidated a Texas statute criminalizing “ ‘deviate sexual intercourse’ ” between persons of the same sex on due process grounds, finding no legitimate state purpose for the statute's intrusion into the personal and private life of the individual. (Lawrence, supra, 539 U.S. at pp. 563, 578, 123 S.Ct. 2472.)
Although oral copulation with a minor under section 288a, subdivision (b)(1) encompasses acts between persons of the same sex whereas unlawful sexual intercourse requires penile-vaginal intercourse (People v. Holt (1997) 15 Cal.4th 619, 675–676, 63 Cal.Rptr.2d 782, 937 P.2d 213 ), we need not consider the potential Lawrence /Limon challenge that could be raised to a felony sentence imposed for oral copulation between an adult and a same-sex minor less than three years younger.
Notwithstanding his reliance on Hofsheier, which applied a rational relationship test, Griffin asserts in passing that the sentencing disparity in issue here “arguably should ... be subject to strict scrutiny” because it implicates his liberty interests. However, a defendant does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. (People v. Wilkinson (2004) 33 Cal.4th 821, 838, 16 Cal.Rptr.3d 420, 94 P.3d 551 [finding rational basis test applicable to disparate punishments for similar battery offenses against custodial officers].) Griffin ventures no argument to the contrary, but stands on the claim that “Hofsheier compels the conclusion that the classification at issue here cannot ... withstand the more deferential rational relationship test....” As we have explained, Hofsheier is not in fact controlling here.
The burden of demonstrating the invalidity of a classification under the rational relationship standard rests squarely on the party who challenges it. (Chan v. Judicial Council of California (2011) 199 Cal.App.4th 194, 204, 131 Cal.Rptr.3d 32 (Chan ).) Griffin's burden in this case is to demonstrate that the disparity in treatment of offenders convicted under sections 288a, subdivision (b)(1) and 261.5, subdivision (b) bears no rational relationship to any conceivable legitimate state purpose. (Chan, at p. 204, 131 Cal.Rptr.3d 32.) This is a substantial burden. “There is no question that the determination of punishment for various offenses inherently involves value and policy determinations left to the Legislature, or to the people acting in a legislative capacity, and penal classifications will be upheld unless they are irrational.” (People v. McKee (2010) 47 Cal.4th 1172, 1204, 104 Cal.Rptr.3d 427, 223 P.3d 566.)
We note the Legislature has revisited the subject of voluntary sexual conduct involving minors multiple times since 1970, making nuanced choices about the criminal punishments to be applied for such conduct. In 1975, the Legislature decriminalized sodomy between adults, which had been punishable as wobbler since 1950. (Stats.1950, 1st Ex.Sess., ch. 56, § 1, p. 512; Stats.1975, ch. 71, § 10, p. 134.) In that year, the Legislature also differentiated the punishments for oral copulation, making oral copulation with a minor punishable as a wobbler with a maximum sentence of five years, making the same act a felony if the adult was over 21 and the minor under 16 years of age, and making oral copulation with a minor under age 14 subject to a minimum three-year sentence if the adult offender was more than 10 years older. (Stats.1975, ch. 877, § 2, p. 1958.) At that time, unlawful sexual intercourse with a minor female was punishable as a wobbler with a maximum felony sentence of three years. (Former §§ 261.5, 264, subd. (a).) In 1993, the Legislature made section 261.5 gender neutral. (Stats.1993, ch. 596, § 1, p. 3139.) The Legislature opted at the same time to differentiate the punishments for unlawful sexual intercourse, including the misdemeanor classification now found in section 261.5, subdivision (b). (Stats.1993, ch. 596, § 1, p. 3139.) An alternative bill making the statute gender neutral without modifying the wobbler classification of the offense failed to pass. (See Assem. Bill No. 415 (1993–1994 Reg. Sess.).) In 1995, in response to concerns about teen pregnancy, the Legislature considered a bill that would have amended section 261.5, subdivision (b) to classify unlawful sexual intercourse between an adult and a minor less than three years younger as a wobbler if the female became pregnant. (Assem. Bill No. 1490 (1993–1994 Reg. Sess.), as amended Apr. 6, 1995, §§ 1, 2, 3.) The Legislature in the end chose to address the problem by passing an amended version of the bill imposing substantial civil penalties for unlawful intercourse, without regard to pregnancy. (Stats.1996, ch. 789, §§ 2, 3, pp. 4161–4162.)
The following statutes reflect just the amendments affecting criminal punishments for voluntary sexual conduct involving minors made since 1970:
(1) amendments made to section 288a by Statutes 1975, chapter 71, section 10, page 134; Statutes 1975, chapter 877, section 2, page 1958; Statutes 1977, chapter 490, section 2, page 1614; Statutes 1978, chapter 579, section 18, page 1984; Statutes 1979, chapter 944, section 7, page 3254; Statutes 1981, chapter 896, section 2, page 3415; Statutes 1985, chapter 1085, section 5, page 3636; Statutes 1986, chapter 1299, section 5, page 4595; Statutes 2010, chapter 219, section 8, page 1108;
(2) amendments made to section 261.5 by Statutes 1993, chapter 596, section 1, page 3139; Statutes 1998, chapter 925, section 1, page 6174;
(3) amendments made to section 288 (lewd and lascivious conduct) by Statutes 1976, chapter 1139, section 177, page 5110; Statutes 1978, chapter 579, section 17, page 1984; Statutes 1981, chapter 1064, section 1, page 4093;
(4) amendments made to section 286 (sodomy) by Statutes 1975, chapter 71, section 7, page 133; Statutes 1975, chapter 877, section 1, page 1957; Statutes 1976, chapter 1139, section 175, page 5110; Statutes 1977, chapter 490, section 1, page 1613; Statutes 1979, chapter 944, section 6, page 3253;
(5) adoption in 2004 of section 675 (sentence enhancement for persons convicted of felony unlawful sexual acts with minors procured by payment) by Statutes 2004, chapter 769, section 1, page 5957;
(6) adoption in 2006 of section 288.7 (sexual acts with a child under 10 years of age) by Statutes 2006, chapter 337, section 9, pages 2590–2591.
“Normally, the widest discretion is allowed the legislative judgment in determining whether to attack some, rather than all, of the manifestations of the evil aimed at; and normally that judgment is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious.” (McLaughlin v. Florida (1964) 379 U.S. 184, 191, 85 S.Ct. 283, 13 L.Ed.2d 222.) Here, the Legislature has devoted substantial attention to the punishments and penalties attaching to voluntary sexual conduct involving minors, and it is Griffin's burden to negate every circumstance that might have rationally supported its choices. For the reasons we have explained, Hofsheier and Limon addressed distinguishable issues and do not relieve Griffin from his burden in this case.
Further, we believe the Attorney General has proposed a rational basis for the distinction in penalty between section 288a, subdivision (b)(1) and section 261.5. As noted earlier, Hofsheier acknowledged there were media reports to the effect that oral copulation had become more prevalent among adolescents due to the risks of pregnancy and HIV transmission from engaging in sexual intercourse. (Hofsheier, supra, 37 Cal.4th at p. 1203, 39 Cal.Rptr.3d 821, 129 P.3d 29.) Although there are academic survey studies substantiating these reports, a rational basis supporting a legislative classification can be “any reasonably conceivable state of facts” that support the classification, even if based solely on “rational speculation unsupported by evidence or empirical data.” (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211.) It is “entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” (Id. at pp. 314–315, 113 S.Ct. 2096.)
See Halpern–Felsher et al., Oral Versus Vaginal Sex Among Adolescents: Perceptions, Attitudes, and Behavior (2005) 115 J. American Academy Pediatrics 4; Brady & Halpern–Felsher, Adolescents' Reported Consequences of Having Oral Sex Versus Vaginal Sex (2007) 119 J. American Academy Pediatrics 2. A court “may consider arguments in support of finding a rational basis for the statute even if those arguments were not part of the original legislative discussion at the time of enactment.” (People v. Hollins (Ill.2012) 361 Ill.Dec. 402, 971 N.E.2d 504, 514–515.)
The Attorney General proposes that the Legislature might have rationally wanted to give judges discretion to impose felony punishment as a greater deterrent to oral copulation since the commission of that offense had become more common among teens due to the perceived lower risks, and minors were more likely to be persuaded to consent to it compared to sexual intercourse for the same reasons. While Hofsheier found no logical or empirical linkage between the relative prevalence of oral copulation among teens and the imposition of mandatory sex offender registration on adults convicted of oral copulation with a minor, we find the data do have some logical relevance to the deterrent purposes served by criminal sentencing laws and classifications.
It is not irrational for the Legislature to want to deter offenses it perceives as more common, more difficult to detect, and more likely to be committed than similar offenses, by imposing more severe punishment for them, even if the less common offenses involve a greater risk of harm. Thus, in People v. Romo (1975) 14 Cal.3d 189, 121 Cal.Rptr. 111, 534 P.2d 1015, the court found it was not an equal protection violation to allow a more severe sentence for assault with a deadly weapon (former section 245) than that permitted for the greater crime of assault with intent to commit murder (former section 217) on the grounds that the conduct denounced by section 245 was more likely to occur than that denounced by section 217. (Romo, at pp. 196–197, 121 Cal.Rptr. 111, 534 P.2d 1015.) In People v. Hernandez (2005) 134 Cal.App.4th 474, 36 Cal.Rptr.3d 59, the court upheld a statute imposing greater penalties on aiders and abettors of crimes committed for the benefit of street gangs than aiders and abettors of crimes committed for the benefit of equally or more dangers groups such as hate groups or terrorist organizations. (Id . at pp. 481–482, 36 Cal.Rptr.3d 59.) The court cited statistics on the growing frequency of gang-related crimes and reasoned that the equal protection clause does not prohibit the Legislature from focusing its attention on the classes of cases where it deems the need to be greatest. (Id . at p. 482, 36 Cal.Rptr.3d 59.)
Here, there is a “ ‘ “ ‘reasonably conceivable state of facts' ” ’ ”—data and media reports on the sexual behaviors and attitudes of teens—that “ ‘ “ ‘could provide a rational basis' ” ’ ” for the Legislature to classify oral copulation with a minor of age 16 or 17 as a wobbler while treating sexual intercourse with a minor of the same age as a misdemeanor. (Hofsheier, supra, 37 Cal.4th at p. 1201, 39 Cal.Rptr.3d 821, 129 P.3d 29, italics omitted.) Whether that legislative distinction is wise or effective is not for this court to determine. Rational basis review is a “ ‘a paradigm of judicial restraint,’ growing out of recognition that ‘equal protection is not a license for courts to judge the wisdom, fairness or logic of legislative choices.’ ” (Tri H ealth v. Board of Com'rs, Hamilton County, OH (6th Cir.2005) 430 F.3d 783, 791.)
For these reasons, Griffin's equal protection challenge to his sentence for count nine fails.
See footnote *, ante .
The order for restitution as to defendant Fields is reversed. In all other respects we affirm the judgments.
We concur:
Dondero, J.
Banke, J.