Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE260082, Allan J. Preckel, Judge.
O'ROURKE, J.
Raymond A. Gonzales entered a negotiated guilty plea to committing a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a)) and admitted substantial sexual contact (§ 1203.066 subd. (a)(8)). The court sentenced him to prison for the six-year middle term. Gonzales appeals. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
On three occasions, Gonzales touched the private parts of his niece, Sabrina C., under her clothes, with his hands. On the third occasion, he also kissed her private parts, under her clothes. The first two offenses occurred when Sabrina was between five and seven years old. The third offense occurred in September 2005 when she was 10 years old.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.
We granted Gonzales permission to file a brief on his own behalf. He has responded, stating: (1) he wants to ensure he receives proper custody and conduct credits in the future; (2) the court abused its discretion by ordering $8,500 in restitution; (3) 2006 laws do not apply to him because his crime occurred in September 2005; (4) restricting him from living near schools and parks violates his due process and equal protection rights; (5) classifying his crime as violent violates his right to equal protection; and (6) requiring him to register as a sex offender violates his due process and equal protection rights.
(1) Credits
Gonzales was in custody from April 4 to May 6, 2006, and from May 23 to July 11, 2007, a total of 83 days. The court properly granted him 83 actual days plus 12 days section 2933.1 credits, for a total of 95. Issues regarding any subsequent credits are premature and beyond the scope of this appeal.
(2) Restitution
The court ordered $8,550 in restitution to the victims (not $8,500, as stated in the supplemental brief). Gonzales argues this will be difficult for him to pay and the court abused its discretion by allowing restitution for counseling for the victim's family. Gonzales was advised, before he entered his plea, that he would have to pay full restitution to all victims. The restitution order was proper. (§ 1202.4, subd. (f).)
(3) 2005 and 2006 Laws
While Gonzales's contention is not clear, it appears that he may be referring to section 1203.066. The 2005 version of section 1203.066, subdivision (c) allowed the court to override the probation prohibition of section 1203.066, subdivision (a)(8) if it made five findings. The 2006 and current version of section 1203.066 require substantial sexual conduct to be alleged and either admitted or found true before the probation prohibition applies, and if it was not pleaded or proven, the court is required to make similar findings before granting probation. (§ 1203.066, subds. (a), (c)(1), (d)(1).) Here, substantial sexual conduct was alleged by the People and admitted by Gonzales. One of the required five findings under the former law was that a probation grant would be in the child's best interest. (§ 1203.066, former subd (c)(2).) The court here found that granting Gonzales probation would not be in Sabrina's best interest and accordingly he was ineligible for probation. The court also found that even if he were eligible for probation, it would not exercise its discretion to grant probation. There was no abuse of discretion.
Under the current law, the best interest finding applies if the defendant is a member of the victim's household. (§ 1203.066, subd (d)(1)(A).)
(4) Residence Restriction
In view of the fact that Gonzales is in prison, any residence restriction that may be imposed upon him in the future is not an issue ripe for review.
(5) Violent Crime
As Gonzales was advised before he entered his plea, a violation of section 288, subdivision (a) is legally classified as a violent crime. (§ 667.5, subd. (c)(6).) This circumstance alone does not constitute an equal protection violation.
(6) Sex Offender Registration
Gonzales was advised before he entered his plea that his conviction would require him to register as a sex offender for the rest of his life. (§ 290, subds. (b), (c).) He argues the registration requirement violates his right to equal protection because gang members and arsonists do not have to register for life or in the public domain and having his information on a website will place him and his coresidents at risk of death. Gonzales has not shown that persons convicted of violating section 288, subdivision (a) and either gang members or arsonists are similarly situated, the first requirement of a successful equal protection challenge. (Cf. People v. Hofsheier (2006) 37 Cal.4th 1185, 1199-1200.) He appears to make another equal protection challenge, referring to the fact Sabrina was younger than 14 years of age and citing People v. Hofsheier, supra, 37 Cal.4th 1185, and section 261.5. This challenge fails as well. (See People v. Hofsheier, supra, at p. 1198.) There was no due process denial.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Gonzales has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J. HALLER, J.