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People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 9, 2012
No. F061163 (Cal. Ct. App. Jan. 9, 2012)

Opinion

F061163 Super. Ct. No. F10903521

01-09-2012

THE PEOPLE, Plaintiff and Respondent, v. SEAN MONTEL SHELTON LEWIS, Defendant and Appellant.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

SEE CONCURRING OPINION

Sean Montel Shelton Lewis pled no contest to one count of oral copulation with a person under the age of 18, in violation of Penal Code section 288a, subdivision (b)(1).He was sentenced to the midterm of two years, and the trial court exercised its discretion and ordered him to register as a sex offender pursuant to section 290.

All further statutory references are to the Penal Code.

Lewis argues that he was denied his right to equal protection of the laws because, in this case, consensual oral copulation with a minor is a felony. Lewis would have been guilty of a misdemeanor if he had had consensual sexual intercourse with someone the same age as the minor in this case. The complaint, therefore, is that he suffered a greater penalty for committing oral copulation than he would have suffered had he engaged in sexual intercourse.

We reject Lewis's argument and affirm the judgment. As we shall explain, the record from the trial court is insufficient to raise the challenge, and the briefing on appeal is too superficial to permit thorough analysis. Lewis relies on only one case in his brief, People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). This reliance is misplaced because Hofsheier is neither analogous nor relevant to the equal protection argument made by Lewis.

FACTUAL AND PROCEDURAL SUMMARY

Lewis pled no contest to one count of violating section 288a, subdivision (b)(1), felony oral copulation with a person under the age of 18. The minor involved was 16 years old. The trial court sentenced Lewis to two years in state prison and, after recalling the sentence, exercised its discretion in imposing a lifetime registration requirement on Lewis pursuant to section 290.

Section 288a, subdivision (b)(1) is a wobbler, i.e., it can be either a felony or a misdemeanor. It was charged in this case as a felony, and Lewis pled no contest to the charge.

DISCUSSION

Lewis argues his conviction of a felony and sentence to state prison violates the equal protection clauses of the United States and California Constitutions. The class of persons to which he belongs are those who have violated section 288a, subdivision (b)(1), which we will refer to as consensual oral copulation with a minor. The other class referred to by Lewis consists of those individuals who had consensual intercourse with a minor who was less than three years younger than the defendants and who were charged with unlawful sexual intercourse, in violation of section 261.5, subdivision (b), which we will refer to as consensual intercourse with a minor. A violation of section 261.5, subdivision (b) is a misdemeanor. The greater punishment incurred as a result of a felony conviction is the disparate treatment indentified by Lewis.

Procedure for Challenging a Statute

The equal protection clauses of the state and federal Constitutions require states to accord the same treatment to persons similarly situated with respect to the legitimate purpose of the law. (Chan v. Judicial Council of California (2011) 199 Cal.App.4th 194, 202.) An equal protection claim will be rejected if the two groups are not similarly situated. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) "The use of the term 'similarly situated' in this context refers only to the fact that '"[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." ...' [Citation.] There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)

An equal protection argument requires a two-step analysis. (Sagana v. Tenorio (9th Cir. 2004) 384 F.3d 731, 740.) The first step requires the party asserting a violation of his or her right to establish that he or she is a member of a group that is similarly situated with members of another group, and the law in question treats the two groups differently. (Ibid.) The second step requires the trial court to assess the legitimacy of a discriminatory statute under the appropriate level of scrutiny. (Ibid.)

In the first step, it is the proponent's burden (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17) to establish that the groups are similarly situated for the purposes of the law challenged, not whether the two groups are similarly situated for all purposes. (People v. Shields (2011) 199 Cal.App.4th 323, 333.) If the proponent succeeds in passing the first hurdle, then the trial court is required to determine which level of scrutiny is required. (Ibid.) We point out these steps because this process was not followed in the trial court.

There generally are three levels of analysis used when similarly situated groups receive disparate treatment. First, distinctions involving suspect classifications or which touch upon fundamental interests are subject to strict scrutiny and can be sustained only if they are necessary to achieve a compelling state interest. Second, classifications based on gender are subject to an intermediate level of review. Most legislation is reviewed under the third level of analysis, the rational relationship test. (Hofsheier, supra, 37 Cal.4th at p. 1200.)

Proceedings in the Trial Court

As we understand Lewis's argument in the trial court, he asserted that because he was homosexual, he would not be able to violate section 261.5 and therefore his right to equal protection was somehow violated. The trial court correctly rejected this argument.The failure to frame the issue properly in the trial court prevented the People from developing the record in a manner that would have allowed the trial court to conduct a meaningful analysis. Neither party argued possible reasons for the disparate sentencing scheme, nor was the correct standard of scrutiny identified. Finally, the trial court was not provided with any authority to support either party's position. Based on this record, the trial court did not err.

We are not suggesting that homosexuals as a group cannot ever be a classification that is discriminated against in violation of their right to equal protection. We simply are noting that the argument made in the trial court, that homosexuals who violate section 288a, subdivision (b)(1) are somehow treated differently than others who violate the statute is totally lacking in merit.

Analysis of Contentions in this Court

Lewis makes a different argument here. He does not challenge the trial court's discretionary decision to require him to register pursuant to section 290. Instead, he argues that Hofsheier compels the conclusion that his right to equal protection was violated when he was charged with a felony instead of a misdemeanor and sentenced to prison.

The same two statutes at issue in this case also were discussed in Hofsheier, but the similarity between the two cases ends there. The equal protection challenge in Hofsheier was directed at section 290, not section 288a, subdivision (b)(1).

Hofsheier, a 22-year-old man, pled guilty to violating section 288a, subdivision (b)(1), consensual oral copulation with a minor, in this case a 16-year-old girl. This conviction resulted in mandatory lifetime registration as a sex offender under section 290. Hofsheier argued that had he engaged in consensual intercourse with the same 16-year-old girl, he would have violated section 261.5 and would have not been subject to mandatory registration as a sex offender. He maintained that section 290's distinction between consensual intercourse with a minor and consensual oral copulation with a minor was not rational, thus resulting in a violation of his right to equal protection.

Thus, the issue in Hofsheier was whether section 290 violated Hofsheier's right to equal protection when it imposed mandatory lifetime registration as a sex offender on him for committing oral copulation with a 16-year-old minor but would not impose mandatory lifetime registration on one who had consensual intercourse with a minor.

The People argued that Hofsheier was not similarly situated to defendants convicted of violating section 261.5 because they were convicted of different crimes. The Supreme Court conceded that in most cases, but not all, this distinction was valid. (Hofsheier, supra, 37 Cal.4th at p. 1199.) The Supreme Court also noted that its analysis did not decide that the two groups were similarly situated for all purposes, but was limited to the issue of whether the two groups were similarly situated for the purposes of the law challenged, i.e., mandatory registration as a sex offender. (Id. at pp. 1199-1200.) With this limited scope of analysis in mind, the Supreme Court concluded that since both statutes concern sexual conduct with minors, the only difference being the nature of the sexual act, the two groups were similarly situated for the purposes of section 290. (Hofsheier, at p. 1200.)

The Supreme Court next applied the rational relationship test to the issue. Under this test, legislation will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. The inquiry ends if there are plausible reasons for the classification. (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) The Supreme Court also emphasized that the group attacking the rationality of the legislation had the burden of refuting every conceivable, plausible basis that might support it. (Id. at p. 1201.)

Applying these principles, the Supreme Court concluded that section 290 violated Hofsheier's right to equal protection.

"We perceive no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of 'particularly incorrigible offenders' [citation] who require lifetime surveillance as sex offenders. We therefore conclude that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions. This conclusion does not preclude the Legislature from requiring lifetime registration both for persons convicted of voluntary oral copulation and for those convicted of voluntary sexual intercourse, thus treating both groups the same." (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207, fn. omitted.)

Lewis argues that his situation is essentially identical to Hofsheier. Therefore, according to Lewis, his felony conviction violates his right to equal protection. We disagree for several reasons.

First, this argument was not presented to the trial court. Indeed, the record in this case is barren of any suggestion that trial counsel even considered such an argument. Accordingly, the record contains no facts or authority that may shed light on this issue.

More importantly, because trial counsel did not make this argument, the trial court never determined whether Lewis carried his burden of establishing that he was a member of a similarly situated class or whether he could refute all possible explanations for the claimed disparate treatment. Nor were the People given an opportunity to provide the trial court with possible rational explanations for the alleged disparate treatment.

Ignoring these deficiencies, Lewis simply points to Hofsheier and argues that these issues have been resolved in his favor. But Hofsheier cannot be read so broadly. The issue before the Supreme Court was whether section 290 violated Hofsheier's right to equal protection. The analysis was limited to application of section 290, and the Supreme Court's conclusion that the two groups (defendants convicted of violating section 288a, subdivision (b)(1) and defendants convicted of violating section 261.5) were similarly situated was necessarily limited to a section 290 analysis. Hofsheier cannot be read as a conclusion by the Supreme Court that those two groups are similarly situated for all purposes.

Therefore, in this court Lewis has the burden of establishing that the two groups are similarly situated for purposes of imposition of penalty (felony or misdemeanor) and the burden of refuting all possible plausible explanations for the different penalties imposed on the two groups. He has not attempted to do either, and thus has not carried his burden of proof.

Lewis's decision to ignore his burdens also allowed him to ignore the long line of cases that point out the weaknesses in his argument. First, great deference is granted the Legislature when imposing punishment for various offenses. (People v. Mitchell (1994) 30 Cal.App.4th 783, 795-796; People v. Silva (1994) 27 Cal.App.4th 1160, 1167-1168.) As a result of this deference, the Legislature's decision on what distinctions are sufficient to warrant separate classifications will not be overturned unless the decision is "palpably arbitrary and beyond rational doubt erroneous." (Silva, at pp. 1168-1169.) Lewis does not attempt to address this deference granted to the Legislature.

Second, the equal protection clause is not offended when a prosecutor exercises his or her discretion when choosing which crime to charge and what punishment to seek. (People v. Gonzales (2011) 51 Cal.4th 894, 958; People v. Manduley (2002) 27 Cal.4th 537, 568-569; People v. Honan (2010) 186 Cal.App.4th 175, 183; People v. Cavallaro (2009) 178 Cal.App.4th 103, 116-117.) Therefore, if the equal protection clause is not implicated when a defendant commits an act that may be charged under two different criminal statutes, or as a felony or misdemeanor, and the prosecutor elects to charge a crime that will result in a harsher punishment, how can a crime that has a harsher punishment than a completely different crime violate the equal protection clause? Neither this court nor Lewis can provide an answer to this question that would lead to the conclusion that Lewis's right to equal protection was violated.

Third, Lewis's reliance on Hofsheier also allowed him to ignore the long line of cases that recognize that different punishment for different crimes does not implicate a defendant's right to equal protection. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) Lewis does not attempt to explain why we should ignore these cases or how his case can be distinguished from those cases.

Conclusion

Lewis has failed to provide either the trial court or this court with the factual record and the reasoned analysis supported by appropriate authority necessary to allow us to consider his contentions. Thus, his argument fails.

DISPOSITION

The judgment is affirmed.

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CORNELL, Acting P.J.

I CONCUR:

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FRANSON, J.

DETJEN, J.

I concur in the result, but write separately to state my disagreement with certain aspects of the majority opinion.

In his dissenting opinion in People v. Hofsheier (2006) 37 Cal.4th 1185, 1216 (Hofsheier),Justice Baxter expressed the concern that the opinion would "prompt a spate of equal protection challenges by defendants arguing their crimes [could not] be subject to punishment or any other consequence perceived as more severe than that authorized for other distinct but seemingly comparable crimes." This case is one of those challenges.

What the majority opinion does not disclose is that, in this case, respondent (the People) conceded the issue appellant (defendant Lewis) raised: both parties cited to Hofsheier as authority for their position that defendant, convicted of violating Penal Code section 288a, subdivision (b)(1), a crime punishable by imprisonment in the state prison, or in a county jail for a period of not more than one year, was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (§ 261.5, subd. (b)) under the same circumstances incurs only a misdemeanor conviction.

All further references are to the Penal Code.

The argument by defense counsel in the trial court and the argument by appellate counsel on appeal was not, as claimed by the majority in footnote four, ante, that homosexuals who violate section 288a, subdivision (b)(1) are somehow treated differently than others who violate the same statute. The argument was that the sex act set forth in section 261.5 requires the participation of a male and a female and is subject to only misdemeanor punishment, while the sex act set forth in section 288a, subdivision (b)(1) can be accomplished between persons of the same sex, yet, the offender could be subject to felony punishment.

Even in the trial court, the People did not oppose appellant's assertion. Defense counsel raised the issue at a postsentencing hearing scheduled by the trial court for the purpose of exercising its discretion regarding lifetime registration. At the hearing, defense counsel stated that he needed to make comments on the record that should have been made at the sentencing hearing. He referenced Hofsheier and argued that his client was deprived of equal protection under both the state and federal Constitutions because, if defendant had engaged in consensual intercourse with a 16-year-old female, defendant would have been subject only to a misdemeanor conviction. Defense counsel argued that sexual intercourse could only occur between a male and a female and was, therefore, heterosexual activity. He asserted that consensual oral copulation, which he characterized as "natural for somebody who is homosexual," allowed for more severe punishment. The disparity, he contended, was a violation of the equal protection clause. The People replied that they did not have "any response to counsel's comments since they [were] simply [being] put on the record for appellate purposes."

The majority is incorrect when they say, "this argument was not presented to the trial court. Indeed, the record in this case is barren of any suggestion that trial counsel even considered such an argument." (Maj. opn., ante, at [p. 7].) The record contradicts these statements.

I do not agree with the conclusion in the majority opinion that appellant failed to "frame the issue properly in the trial court" thereby "prevent[ing] the People from developing the record in a manner that would have allowed the trial court to conduct a meaningful analysis." (Maj. opn., ante, at [p. 4].) The record belies that conclusion. Defense counsel framed the issue properly. The People were not prevented from responding, they chose not to respond. The trial court agreed with defense counsel's argument that, "from the perspective of Hofsheier ... it is a violation of equal protection to punish an individual who has a sexual orientation of homosexuality different than one of heterosexuality for engaging in consensual sex acts." There was, therefore, no reason for defense counsel to put forth reasons for the disparate sentencing scheme nor was there a reason to identify the correct standard of scrutiny. When defense counsel again insisted there was an issue of whether or not section 261.5, subdivision (b) violated equal protection, the trial court responded that the issue was "beyond this court" and defense counsel agreed. Thus the issue, although raised and properly framed by defense counsel, was rejected by the trial court as an issue that was "beyond" it.

On appeal, appellant has not made a claim that the trial court erred in not considering his argument at the hearing, nor has he asserted that his counsel was ineffective in failing to properly raise and preserve the issue in the trial court. His sole challenge on appeal (a challenge the People joined in by concession) is that Hofsheier applies to the issue of disparate punishment and therefore compels a finding that the disparate punishment of the statutes in question violates equal protection. The majority states that, by citing to Hofsheier, appellant has not met his burden of establishing that the two groups are similarly situated for purposes of imposition of penalty and has not met his burden of refuting all possible plausible explanations for the different penalties imposed on the two groups. (Maj. opn., ante, at [p. 7].) On this point, they are correct.

I concur with the majority in the judgment. The court in Hofsheier found that defendants convicted of section 288a, subdivision (b)(1) were similarly situated to defendants convicted of section 261.5 for purposes of the law challenged in that case, that law being the registration requirement. (Hofsheier, supra, 37 Cal.4th at p. 1200.) It did not, however, address the issue of disparate punishment. Although recognized as imposing a "'substantial' and 'onerous' burden" on the defendant, the court stated that registration was "not considered a form of punishment under the state or federal Constitution [citations]." (Id. at p. 1197.) A defendant does not have a "'fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) "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.)

The majority is correct in saying appellant has ignored a long line of cases giving deference to the Legislature when imposing punishment for various offenses. (See maj. opn., ante, at [pp. 7-8].) The People, however, did the same. The majority is also correct in saying that, on appeal, this court has not been provided with reasoned analysis supported by appropriate authority necessary for consideration of appellant's contentions.

I do not agree, however, with the inclusion in the majority opinion of the paragraph discussing the right of a prosecutor to exercise his or her discretion when choosing which crime to charge and what punishment to seek. (Maj. opn., ante, at [p. 8].) First, that was not the issue posed. Second, the facts would not have supported that issue. Third, the majority's statement on the issue appears to infer that appellant would not be able to establish that his right to equal protection was violated. (See ibid.)

Finally, since both parties in this case asserted the Supreme Court's ruling in Hofsheier as being broader than it is, and since the issue has not been addressed in a published opinion, it is my position that an opinion explaining the scope of Hofsheier should have been written for publication. (See Cal. Rules of Court, rule 8.1105(c)(2) & (6).)

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DETJEN, J.


Summaries of

People v. Lewis

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 9, 2012
No. F061163 (Cal. Ct. App. Jan. 9, 2012)
Case details for

People v. Lewis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SEAN MONTEL SHELTON LEWIS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 9, 2012

Citations

No. F061163 (Cal. Ct. App. Jan. 9, 2012)