Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCD174881. William H. Kennedy, Judge.
HALLER, J.
This is an appeal from an order denying Bret Marquis's postjudgment motion that the trial court remove a mandatory sex offender registration requirement from the judgment. After a jury trial, Bret Marquis was found guilty of voluntary oral copulation with a minor age 14 or 15 by a defendant over age 21. (Pen. Code, § 288a, subd. (b)(2); see § 288.) Pursuant to section 290's mandatory sex offender registration requirement for defendants convicted of certain specified sex offenses, Marquis was ordered to register as a sex offender. (§ 290, subd. (a)(1)(A), (2)(A).) He challenged the registration requirement on appeal, arguing that his constitutional right to equal protection of the laws was violated because a defendant convicted of voluntary sexual intercourse with a minor in the same age group was subject only to section 290's discretionary sex offender registration requirement. In an unpublished opinion, we rejected this challenge. (People v. Marquis (Oct. 18, 2005, D044601) (Marquis I).)
The term "voluntary" is used in a restricted sense to designate a sexual offense in which the minor willingly participated and there was no force, violence, duress, or other statutory aggravating circumstances. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1193, fn. 2 (Hofsheier).)
Subsequent statutory references are to the Penal Code.
In February 2006, the California Supreme Court denied review in Marquis I, but stated its order was "without prejudice to any relief to which defendant might be entitled after this court decides People v. Hofsheier, S124636." Thereafter, our high court rendered its decision in the Hofsheier case, finding that the defendant's equal protection rights were violated by section 290's imposition of the mandatory registration requirement on defendants convicted of voluntary oral copulation with minors age 16 or 17, but not on defendants convicted of voluntary sexual intercourse with minors of the same ages. (Hofsheier, supra, 37 Cal.4th 1185.)
Based on Hofsheier, Marquis filed a motion before the trial court requesting that the mandatory registration requirement be removed from the judgment. The trial court denied the motion, declining to extend Hofsheier to offenses involving minors age 14 or 15. Marquis now appeals this ruling. We conclude Hofsheier's holding applies to this case, and accordingly reverse the trial court's order. We remand the matter to the trial court with instructions to (1) remove the mandatory registration requirement from the judgment, and (2) determine whether Marquis should be required to register under section 290's discretionary sex offender registration provision.
BACKGROUND
The jury found that Marquis, age 47, engaged in oral copulation with a 15-year-old homeless, runaway boy who worked as a prostitute. Marquis was convicted of voluntary oral copulation with a minor under age 16 (i.e., age 14 or 15) by a defendant over age 21, and ordered to register as a sex offender as required by section 290. (§§ 288a, subd. (b)(2), 290, subd. (a)(1)(A), (2)(A); see § 288.) On appeal, we rejected his argument that his right to equal protection of the laws was violated because a defendant convicted of voluntary sexual intercourse with a minor in the same age group was not subject to the mandatory registration requirement. (Marquis I, supra, D044601.) We reasoned that the Legislature could rationally conclude that an offender who engaged in oral copulation with a minor was more likely to reoffend than an offender who engaged in sexual intercourse with a minor given that both the offender and the victim may perceive oral copulation as less risky and less harmful than intercourse (i.e., no risk of pregnancy and less risk of disease); oral copulation may be used to "groom" the victim for subsequent sexual acts such as intercourse; and oral copulation may be accomplished more surreptitiously and reported less often than sexual intercourse, and unlike intercourse leaves few signs that it has occurred. (Ibid.) Based on our high court's analysis and holding in Hofsheier, we now re-examine our conclusion.
DISCUSSION
To prevail on an equal protection claim, the defendant must show (1) the state has adopted a classification that affects two or more similarly situated groups in an unequal manner, and (2) the challenged classification does not bear a rational relationship to a legitimate state purpose. (People v. Hofsheier, supra, 37 Cal.4th at pp. 1199, 1200.) When determining whether two persons are similarly situated, the court does not inquire whether they are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (Id. at pp. 1199-1200.) When determining whether there is a rational relationship between the classification and the state's purpose, the court inquires whether there is a plausible rationale or a reasonably conceivable factual scenario that provides rational grounds for the disparate treatment. (Id. at pp. 1201-1202.)
There is no dispute that the appropriate test in this case is the rational relationship test, not the strict scrutiny test applicable to cases involving suspect classifications or fundamental interests. (See Hofsheier, supra, 37 Cal.4th at p. 1200.)
Marquis argues that Hofsheier's holding that it is a violation of equal protection to impose the mandatory sex offender registration requirement on a defendant convicted of voluntary oral copulation with a minor age 16 or 17 (§ 288a, subd. (b)(1)) should apply equally to a defendant convicted of oral copulation with a minor age 14 or 15 (§ 288a, subd. (b)(2)). He argues that, comparable to the situation in Hofsheier, he is similarly situated to a defendant convicted of voluntary sexual intercourse with a minor age 14 or 15 (§ 261.5, subd. (d)), and yet the latter defendant is subject only to a discretionary registration requirement. To evaluate his argument, we first review the sex offender statutes applicable to voluntary oral copulation and sexual intercourse with minors and the Hofsheier decision, and then consider the latter's applicability to the current case.
Relevant Sex Offender Statutes
The Legislature has imposed a mandatory sex offender registration requirement on the voluntary lewd act and voluntary oral copulation offenses defined in sections 288 and 288a, but has imposed only a discretionary registration requirement on the voluntary sexual intercourse offenses defined in section 261.5.
Section 288, subdivisions (a) and (c), define the offense of voluntary lewd act with certain specified minors; these lewd acts can include both oral copulation and sexual intercourse. The minors specified in the section 288 lewd act provisions include: (1) minors age 13 and under (§ 288, subd. (a)), and (2) minors age 14 or 15 when the defendant is at least 10 years older than the minor (§ 288, subd. (c)(1)). Section 288a defines the offense of voluntary oral copulation that can be applicable to minors who are outside the voluntary lewd act categories specified in section 288. Section 288a includes the following categories of voluntary oral copulation offenses: (1) voluntary oral copulation with a minor age 16 or 17 (§ 288a, subd. (b)(1)); (2) voluntary oral copulation with a minor age 14 or 15 when the defendant is age 21 or younger (§ 288a, subd. (b)(1)); and (3) voluntary oral copulation with a minor age 14 or 15 when the defendant is over age 21 (§ 288a, subd. (b)(2)). Section 290 imposes a mandatory sex offender registration requirement on the section 288 lewd act offenses and the section 288a oral copulation offenses. (§ 290, subds. (a)(1)(A), (2)(A).)
These age-related categories in section 288a's oral copulation provision and section 261.5's sexual intercourse provision (discussed below) are not explicitly set forth in sections 288a and 261.5, but are created by the interplay between the subdivisions of these sections and between these sections and section 288's lewd act provisions. (See People v. Hofsheier, supra, 37 Cal.4th at p. 1195.)
In contrast, section 290 does not impose a mandatory registration requirement on section 261.5 offenses, which define voluntary sexual intercourse with a minor by a defendant at least 18 years of age. (§§ 261.5, subd. (a), 290, subd. (a)(2)(A); see Hofsheier, supra, 37 Cal.4th at p. 1197.) Similar to section 288a's voluntary oral copulation categories, section 261.5 includes the following voluntary sexual intercourse categories: (1) voluntary sexual intercourse with a minor age 16 or 17 (§ 261.5, subds. (a)-(c)); (2) voluntary sexual intercourse with a minor age 14 or 15 when the defendant is under age 21 (§ 261.5, subds. (a)-(c)); and (3) voluntary sexual intercourse with a minor age 14 or 15 when the defendant is age 21 or older (§ 261.5, subd. (d)). (See fn. 4, ante.)
There is a slight age-related distinction between the section 288a, subdivision (b)(2) oral copulation offense and the section 261.5, subdivision (d) sexual intercourse offense: the former applies to defendants "over the age of 21 years," whereas the latter applies to defendants "21 years of age or older."
A defendant convicted of voluntary sexual intercourse with a minor under section 261.5 is merely subject to a discretionary sex offender registration requirement. (§ 290, subd. (a)(2)(E); Hofsheier, supra, 37 Cal.4th at p. 1197.) Under section 290's discretionary provision, a trial court may (but is not required to) impose the sex registration requirement on any defendant, regardless of what crime he or she has committed, if the court finds the offense was a result of sexual compulsion or for sexual gratification, and the court states the reasons for its findings and for requiring registration. (§ 290, subd. (a)(2)(E); Hofsheier, supra, 37 Cal.4th at p. 1197-1198.) Thus, unlike the mandatory registration provision, the discretionary registration provision "gives the trial court discretion to weigh the reasons for and against registration in each particular case." (Id. at p. 1197.)
The discretionary registration provision states that registration shall be required for "[a]ny person ordered by any court to register pursuant to this section for any offense not included specifically in this section if the court finds at the time of the conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (§ 290, subd. (a)(2)(E).)
The Hofsheier Decision
In Hofsheier, the defendant, age 22, was convicted of engaging in oral copulation with a minor age 16 in violation of section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1192.) The Hofsheier court noted that its analysis was concerned with the validity of mandatory registration for the section 288a, subdivision (b)(1) category of voluntary oral copulation with a minor age 16 or 17. (Hofsheier, supra, 37 Cal.4th at p. 1195.) The court held it was a violation of equal protection to impose the mandatory sex offender registration requirement for commission of voluntary oral copulation with a minor age 16 or 17 (§ 288a, subd. (b)(1)), given that no such requirement was imposed for commission of voluntary sexual intercourse with a minor age 16 or 17 (§ 261.5, subd. (c)). (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1206-1207.) The Hofsheier court reasoned that defendants convicted of the two offenses were similarly situated for purposes of evaluating the registration requirement because "both [offenses] concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act." (Id. at p. 1200.)
After finding the defendant had satisfied the similarly situated requirement for his equal protection claim, the Hofsheier court considered whether there was a rational reason for mandating registration when a defendant engaged in oral copulation, but not when a defendant engaged in sexual intercourse. Relevant to this inquiry, the court noted that the purpose of the registration requirement is to protect the public from repeat offenders. (Hofsheier, supra, 37 Cal.4th at pp. 1196, 1204, fn. 6.) Finding no rational basis for the classification, the court rejected the Attorney's General argument that absent a contrary showing by the defendant, the court should assume that adults who engaged in voluntary oral copulation with minors age 16 or 17 are more likely to repeat their offense than adults who had voluntary sexual intercourse with minors of the same ages. (Id. at p. 1203.) The court reasoned that the absence of empirical evidence from the defendant regarding recidivism should not dictate the result. (Ibid.) Further, the court concluded the claim of increased recidivism by defendants who engaged in voluntary oral copulation with minors age 16 or 17 was speculative and did not provide rational grounds for the classification when considered in light of the fact that only discretionary registration was imposed on defendants who engaged in voluntary sexual intercourse with victims in the same age group. The court explained: "Requiring all persons convicted of voluntary oral copulation with minors 16 to 17 years of age to register for life as sex offenders, while leaving registration to the discretion of the trial court for those convicted of sexual intercourse with minors of the same ages, cannot be justified by the speculative possibility that members of the former group are more likely to reoffend than those in the latter group. To sustain the distinction, there must be some plausible reason, based on reasonably conceivable facts, why judicial discretion is a sufficient safeguard to protect against repeat offenders who engage in sexual intercourse but not with offenders who engage in oral copulation. . . . No reason has been suggested why judicial discretion is insufficient, and none comes to mind." (Id. at pp. 1203-1204.)
The Hofsheier court also rejected the Attorney General's argument that sexual intercourse was distinguishable from oral copulation because the former can result in pregnancy, and imposing a lifetime registration requirement on the father of the child could operate to the social or financial detriment of the mother and child. (Hofsheier, supra, 37 Cal.4th at pp. 1204-1205.) The court reasoned that persons who engage in sexual intercourse often also engage in oral copulation, and "if the possibility of pregnancy is a reason for avoiding mandatory registration of persons convicted of sexual intercourse, the same reason for avoiding mandatory registration applies to persons convicted of voluntary oral copulation, because those persons may have also engaged in intercourse (whether they were convicted of it or not) and a pregnancy may have resulted." (Id. at p. 1205.)
The Hofsheier court further rejected the possibility that the Legislature had chosen to impose the mandatory registration requirement for oral copulation but not sexual intercourse based on a "one-step-at-a-time" approach designed to address acute problems first. (Id. at pp. 1205-1206.) The court observed that the legislative history of the sex offender statutes revealed that the Legislature was "not engaged in a process of fine-tuning its sex offender registration statutes" but rather the registration statutes "stand as a comprehensive, enduring statutory scheme—not a temporary pilot program—and the classifications it includes cannot be sustained unless they rest on a rational basis." (Id. at p. 1206.) Additionally, the court noted that when the section 290 sex offender registration statute was enacted in 1947, all voluntary oral copulation was criminal. (Ibid.) The court discerned that "[m]andatory lifetime registration of all persons convicted of voluntary oral copulation in violation of Section 288a (b)(1) stands out as an exception to the legislative scheme, 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." (Ibid.)
The Hofsheier court concluded: "We perceive of no reason why the Legislature would conclude that all 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." (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207.) The court remanded the case to the trial court to determine whether the defendant should be required to register under section 290's discretionary registration provision. (Id. at p. 1208-1209.)
Analysis
The Attorney General contends that because Hofsheier's holding was confined to defendants convicted of violating section 288a, subdivision (b)(1) involving victims age 16 or 17, the holding should not be extended to defendants convicted of violating section 288a, subdivision (b)(2) involving victims age 14 or 15. We are not persuaded. Certainly the Legislature could have a rational basis for treating offenses directed at 14- and 15-year-old victims differently than offenses directed at older victims. However, the premise of the equal protection claim before us is not premised on an assertion that offenders involved with 14- or 15-year-old victims are treated differently than offenders involved with 16- or 17-year-old victims. Rather, the basis of the equal protection claim is that two groups of offenders—both of whom committed voluntary sex crimes against the same age group (14- or 15-year-olds) are being treated differently, based solely on whether they committed voluntary oral copulation or whether they committed voluntary sexual intercourse. Accordingly, as in Hofsheier, we must evaluate whether there is a rational basis for imposing different registration requirements on defendants who are convicted of voluntary oral copulation as opposed to voluntary sexual intercourse with minors in this age group.
Before we address this issue, we note that in one particular instance the Legislature has created a classification that can result in the same registration requirement being imposed on a defendant who engaged in voluntary oral copulation and a defendant who engaged in voluntary sexual intercourse with a minor age 14 or 15. As set forth above, section 290 imposes a mandatory registration requirement on defendants convicted of violating section 288, subdivision (c)(1), lewd acts with a minor age 14 or 15 by a defendant at least 10 years older than the minor. Because the section 288, subdivision (c)(1) lewd act offense can encompass both oral copulation and sexual intercourse, offenders convicted under this section who engage in either sexual act are subject to the same mandatory registration requirement.
Here, however, even though Marquis is at least 10 years older than the victim, he was not convicted of the section 288, subdivision (c)(1) lewd act offense. Rather, he was convicted of the section 288a, subdivision (b)(2) oral copulation offense, and it was this offense that supported imposition of the section 290 mandatory registration requirement. Accordingly, he falls within the classification of persons convicted under section 288a, subdivision (b)(2), and it is this classification that we must scrutinize when evaluating his equal protection claim.
Although it appears that Marquis was eligible to be charged under section 288, subdivision (c)(1), he was not so charged.
Comparable to the situation in Hofsheier, the only significant difference between a defendant convicted under section 288a, subdivision (b)(2) as opposed to a defendant convicted under section 261.5, subdivision (d) is that the former engaged in oral copulation and the latter engaged in sexual intercourse. All of the factors cited by the Hofsheier court to support its conclusion apply with equal force when the two offenses involve victims age 14 or 15. That is, both offenses within this age group concern sexual conduct with minors distinguished only by the nature of the sexual act; there has been no showing that offenders who engage in oral copulation with 14- or 15-year-old victims have a higher rate of recidivism than offenders who engage in sexual intercourse with the same age group; there has been no showing that the discretionary registration provision applicable to sexual intercourse offenders involved with victims age 14 or 15 does not provide sufficient protection against oral copulation offenders involved with the same age group; the pregnancy-related concerns potentially applicable to sexual intercourse with 14- or 15-year-old victims are relevant to oral copulation with this age group given that offenders may engage in both types of sexual behavior; and the mandatory registration requirement imposed on oral copulation offenders, but not sexual intercourse offenders, involved with 14- or 15-year-old victims is not a step-by-step legislative response to the problem but rather a firmly established statutory classification.
Based on Hofsheier, we conclude that section 290's mandatory registration requirement for a defendant convicted of voluntary oral copulation with a minor age 14 or 15 under section 288a, subdivision (b)(2)—but not for a defendant convicted of voluntary sexual intercourse with the same age group under section 261.5, subdivision (d)—violates the constitutional right to equal protection of the laws. Accordingly, the judgment must be modified to strike the mandatory registration requirement imposed on Marquis based on his section 288a, subdivision (b)(2) conviction.
DISPOSITION
The trial court's order denying Marquis's motion to remove the mandatory sex offender registration requirement from the judgment is reversed. The court is instructed to remove the mandatory registration requirement from the judgment, and conduct a new hearing to determine whether Marquis should be required to register as a sex offender under section 290's discretionary provision.
WE CONCUR: BENKE, Acting P. J., NARES, J.