Opinion
C082595
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. NEIL AARON LEFEVRE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF00695)
Defendant Neil Aaron LeFevre contends the trial court's denial of his petition for a certificate of rehabilitation and pardon (Pen. Code, §§ 4852.01 & 4852.06; unless otherwise stated, statutory section references that follow are to the Penal Code) violated his right to equal protection under the Fourteenth Amendment to the United States Constitution. We affirm the order denying defendant's petition.
FACTS AND PROCEEDINGS
Between 1989 and 1990, defendant molested his young stepdaughter on five separate occasions by partially penetrating her vagina with his penis. Defendant was convicted of five counts of lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)) and, on March 27, 1992, was sentenced to 16 years in state prison. After serving approximately half of his sentence, defendant was discharged from state prison and placed on parole. He was discharged from parole on May 11, 2003.
On March 25, 2016, defendant filed a petition for certificate of rehabilitation and pardon pursuant to sections 4852.01 and 4852.06 (Petition).
On June 29, 2016, the trial court summarily denied defendant's Petition based on a finding that his section 288, subdivision (a) conviction made him ineligible for relief under section 4852.01, subdivision (c).
Defendant filed a notice of appeal.
DISCUSSION
Defendant contends section 4852.01, subdivision (c) (formerly section 4852.01, subdivision (d)), which bars section 288 offenders from obtaining certificates of rehabilitation, violates his right to equal protection. The claim lacks merit.
Under section 4852.01, "[a] person convicted of a felony who is committed to a state prison . . . may file a petition for a certificate of rehabilitation and pardon." (§ 4852.01, subd. (a).) However, "[t]his chapter does not apply to . . . persons convicted of a violation of . . . Section 288 . . . ." (§ 4852.01, subd. (c).)
Where the record reflects the trial court did not exercise its discretion in weighing evidence related to defendant's petition, but rather found defendant ineligible as a matter of law, our review is de novo. (See People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632.)
Here, it is undisputed that defendant suffered a conviction for violating section 288, subdivision (a). Under the plain language of section 4852.01, subdivision (c), defendant is statutorily ineligible to seek a certificate of rehabilitation as a result of his section 288 conviction.
Defendant contends section 4852.01's prohibition against relief for persons like him who are convicted of violating section 288 violates equal protection because offenders convicted of violating section 288a, subdivision (d)(2) (hereafter section 288a(d)(2)) and section 286, subdivision (d)(2) (hereafter section 286(d)(2)) are similarly situated but eligible for such relief. He claims there can be no legitimate reason for the disparate treatment of violent sex offenders and nonviolent sex offenders. We disagree.
Those convicted of violating section 288 are not similarly situated with those convicted of violating sections 288a(d)(2) and 286(d)(2). On the one hand, section 288, subdivision (a) punishes lewd or lascivious acts by any person on the body of a child under 14 years of age done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) On the other hand, section 288a(d)(2) punishes any person who commits an act of oral copulation on a child under the age of 14, when the act is accomplished by means of force or fear, and section 286(d)(2) punishes "[a]ny person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person . . . ."
" '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.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; italics omitted.)
Defendant's equal protection claim fails the initial inquiry because he is not similarly situated to a person who violates either section 288a(d)(2) or section 286(d)(2). Section 288 contains a specific intent requirement—it punishes an act done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) Sections 288a(d)(2) and 286(d)(2) are both general intent crimes. (People v. Thornton (1974) 11 Cal.3d 738, 765 [§§ 288a & 286 are general intent crimes], overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The higher mental state required for a conviction of a specific intent crime is "a distinction that is meaningful" in determining whether that defendant is similarly situated to a defendant convicted of a general intent crime. (See People v. Cavallaro (2009) 178 Cal.App.4th 103, 114 [discussing equal protection related to §§ 288 and 261.5].) Accordingly, because section 288 contains a specific intent requirement, defendant is not similarly situated to offenders convicted under either section 288a(d)(2) or 286(d)(2), neither of which contains a specific intent requirement. (See People v. Singh (2011) 198 Cal.App.4th 364, 371 [a § 288, subd. (a) offender "is not similarly situated to offenders convicted under section 261.5 . . . because [the latter] provision[] . . . [is a] general intent offense[]"]; see also People v. Alvarado (2010) 187 Cal.App.4th 72, 79 [§ 288, subd. (a) offenders are not similarly situated to § 261.5 offenders because "[a] section 261.5 offense . . . concerns the general intent offense of committing unlawful sexual intercourse"].)
We also note there are additional points of dissimilarity between these statutes. Section 288, subdivision (a) differs from section 288a(d)(2) because, unlike section 288a(d)(2), it need not be "accomplished . . . by means of force or fear." Similarly, section 288, subdivision (a) differs from section 286(d)(2) because, unlike section 286(d)(2), it need not be committed "while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person."
For the foregoing reasons, section 288, subdivision (a) offenders are not sufficiently similar to section 288a(d)(2) or section 286(d)(2) offenders "to merit application of some level of scrutiny to determine whether distinctions between the [] groups justify the unequal treatment." (People v. Nguyen (1997) 54 Cal.App.4th 705, 715.) Accordingly, defendant's equal protection challenge fails.
We suspect that, at the core of defendant's argument, defendant is of the opinion that molesting one's young stepdaughter with the intent to arouse or gratify his or her sexual desires on multiple occasions is no more serious, or perhaps less serious, than an act of oral copulation on a victim under the age of 14 by use of force or fear or an act of sodomy in concert with another on a victim under 14 years of age by means of force or fear. If that is his view, his remedy, if there is one, lies with the Legislature.
DISPOSITION
The order denying defendant's petition for certificate of rehabilitation and pardon is affirmed.
HULL, J. We concur: NICHOLSON, Acting P. J. ROBIE, J.