Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC513648
RUSHING, P.J.
STATEMENT OF THE CASE
Defendant Anthony Charles Herrera pleaded guilty to two counts of oral copulation with a minor under the age of 18 and one count of sexual intercourse also with a minor under the age of 18. (Pen. Code, §§ 288a, subd. (b)(1), 261.5, subd. (c).) The court suspended imposition of sentence for three years; placed defendant on probation on condition he spend one year in jail; imposed various fines and fees; and, over defendant’s objection, imposed a mandatory lifetime duty to register as a sex offender under section 290, subdivision (a)(1)(A).
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims the court erred in finding that the duty to register was mandatory.
Facts
The record reveals that in the fall of 2004, when the victim, K.B., was 15 and a sophomore in high school, defendant, who was then 19 years old, asked her to orally copulate him, and she complied. She continued to do so about twice a week for the next year. He also had sexual intercourse with her.
Discussion
Citing People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier), defendant contends that mandatory registration violates his constitutional right to equal protection. (U.S. Const., 14th Amend; Cal. Const., art. I, § 7.)
In Hofsheier, the defendant was over 21 years old and engaged in voluntary oral copulation with a victim who was 16 or 17 years old. (Hofsheier, supra, 37 Cal.4th at pp. 1193, 1195.) The Supreme Court noted that registration was mandatory for those who, like the defendant, are convicted of oral copulation with a minor under 18 in violation of section 288a, subdivision (b)(1), but registration was not mandatory for those who are convicted of unlawful sexual intercourse with a minor under 18 in violation of section 261.5. (Hofsheier, supra, 37 Cal.4th at pp. 1194-1198.) The court found the two types of offenders sufficiently similar to require a rational justification for the difference in treatment concerning mandatory registration. (Id. at pp. 1199-1207.) Finding none, the court held that mandatory registration for a violation of section 288a, subdivision (b)(1) violated the constitutional guarantee of equal protection. (Id. at pp. 1192-1193, 1207.) The court directed that the case be remanded to allow the trial court to exercise its discretion to order registration under section 290, subdivision (a)(2)(E). (Id. at pp. 1208-1209.)
Section 288a, generally proscribes oral copulation with a person under 18, and section 261.5, proscribes intercourse with a minor. Both statutes vary the punishment depending on the victim’s actual age and the age disparity between the victim and perpetrator. However, although the statutes take different approaches with potentially disparate results in a variety of circumstances, prior to Hofsheier, all violations of section 288a triggered a mandatory duty to register under section 290, subdivision (a)(2)(A), while no violations of section 261.5 triggered such a duty.
Because the court focused on only the validity of the mandatory registration requirement as applied to those convicted of oral copulation with a minor who is 16 or 17 years of age (see § 288a, subd. (b)(1)), the court implicitly left open the question of whether mandatory registration passes constitutional muster when the victim is a minor between the ages of 14 and 16 (§ 288a, subd. (b)(2)) or when the victim is under the age of 14 and the perpetrator is 10 or more years older (§ 288a, subd. (c)(1)). (Hofsheier, supra, 37 Cal.4th at p. 1195.)
Although here, as a factual matter, the victim was 15 years old, we need not address the question left open in Hofsheier concerning whether mandatory registration for a violation of section 288a, subdivision (b)(2) [victim between the ages of 14 and 16] denies defendant equal protection because defendant was not convicted of that offense. Indeed, he was charged and convicted of violating section 288a, subdivision (b)(1), the subdivision under scrutiny in Hofsheier. Accordingly, we are bound by Hofsheier (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and agree with defendant that the imposition of mandatory registration violated defendant’s right to equal protection. Accordingly, as defendant requests, we remand the matter to allow the trial court to exercise its discretionary authority to require registration.
After Hofsheier, this court filed People v. Dulan (Feb. 27, 2007, H028838) [nonpub opinion] 55 Cal.Rptr. 312, rev. denied, opinion decertified for publication (S151620). There, the defendant pleaded guilty to oral copulation with a minor between the ages of 14 and 16 in violation of section 288a, subdivision (b)(2). In essence, we concluded that the reasoning of Hofsheier applied with equal force to those convicted under that subdivision. We published our decision in Dulan. Thereafter, the Attorney General filed his respondent’s brief in this case and conceded that “mandatory sex offender registration violates equal protection based on this court’s ruling in Dulan . . . .” However, the Attorney General continued, “If the California Supreme Court grants review [in Dulan], respondent reserves the right to file supplemental briefing in this court or a petition for review contesting the issue.”
Disposition
The judgment is reversed. The case is remanded. The trial court is directed to strike the requirement that defendant register as a sex offender and then conduct further proceedings to determine whether he is subject to discretionary registration pursuant to section 290, subdivision (a)(2)(E); and if so, to exercise its discretion whether to require defendant to register under that provision. The trial court shall then enter a new judgment.
WE CONCUR: PREMO, J., ELIA, J.
As noted above, the Supreme Court denied review in Dulan but decertified the opinion for publication.