Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC17806
NEEDHAM, J.
Richard Morales entered a no contest plea to oral copulation with a person under 16 years of age. (Pen. Code, §§ 288a, subd. (b)(2).) He appeals from an order denying his postjudgment motion to terminate the requirement that he register as a sex offender pursuant to section 290. Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), Morales argues that mandatory sex offender registration violates his right to equal protection because similarly situated defendants convicted of having sexual intercourse with a person under 16 are not required to register. We conclude that under Hofsheier, the mandatory registration provisions cannot be constitutionally applied to Morales’s case. We reverse the trial court’s order and remand the case for a new hearing to determine whether registration should be imposed as a matter of judicial discretion under section 290.006.
Statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
In 1987, Morales entered a no contest plea to a single count of nonforcible oral copulation under section 288a, subdivision (b)(2), which provides, “Except as provided in section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.” He was 29 years old at the time of the offense and his victim was a 15-year-old youth. The court placed Morales on felony probation conditioned on a year in local custody. Probation was subsequently modified to require only a six-month jail term. Morales acknowledged that as a consequence of his plea, he would have to register as a sex offender under section 290.
Section 290 requires that individuals convicted of certain sexual offenses register with law enforcement as sex offenders. Oral copulation under section 288a, which includes variants of nonforcible oral copulation with minors, is an offense listed in section 290 as one for which lifetime registration is mandatory, whereas unlawful sexual intercourse with minor a under section 261.5 is not. (§ 290, subd. (c).) In 2006, the Supreme Court issued its decision in Hofsheier, holding that a person convicted of nonforcible oral copulation with a person under 18 (§ 288a, subd. (b)(1)) is similarly situated with persons convicted of nonforcible unlawful sexual intercourse with a person under 18 (§ 261.5, subd. (a)), and that equal protection principles precluded mandatory sex offender registration for the former when it was not required for the latter. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1207.)
In 2008, the appellate court in People v. Garcia (2008) 161 Cal.App.4th 475 (Garcia) extended Hofsheier’s analysis to a conviction of nonforcible oral copulation with a 14- or 15-year-old victim under section 288a, subdivision (b)(2), the same crime Morales was convicted of committing. Noting that registration was not mandatory for a person convicted of unlawful sexual intercourse with a minor of the same age under section 261.5, subdivision (d), the court concluded, “If there is no rational reason for this disparate treatment [between oral copulation and sexual intercourse] when the victim is 16 years old, there can be no rational reason for the disparate treatment when the victim is even younger, 14 [or 15] years old. Accordingly, Hofsheier applies whether the conviction is under subdivision (b)(2) or (b)(1) of section 288a....” (Garcia, supra, 161 Cal.App.4th at p. 482.)
On May 30, 2008, the California Department of Justice sent Morales a letter advising him that the Hofsheier decision might entitle him to relief from the sex offender registration requirement. On December 30, 2008, Morales filed a “Notice of Motion for an Order to Terminate Registration Pursuant to Penal Code § 290” in the superior court. In support of his motion, he attached a psychological report prepared by Alfred W. Fricke, Ph.D. at the time of his original sentencing in 1987, which concluded that while Morales had not been completely forthright about the circumstances of the underlying offense (describing the relationship with the victim as one that began in a “brotherly” way but evolved into a sexual one due to the victim’s maturity), “one would predict that he can and will exert conscious control over his behavior and would not reoffend in his present stage of life.” A second psychological report prepared by Edward E. Rousar III, Ph.D. in 2008 described Morales’s history of gainful employment and long term relationships since the time of the offense and concluded “there is no reason to think that he is a threat to society and every reason to believe that he has a deep and personal stake in behaving appropriately.”
On January 5, 2009, without setting the matter for a hearing and without ascertaining the positions of the district attorney or the probation department, the court issued a written order denying the motion to terminate mandatory registration. It gave the following reasons for its ruling: (1) the court did not have jurisdiction to entertain a motion to modify the judgment in a case that was already final; (2) assuming it did have jurisdiction, Hofsheier did not entitle Morales to relief because the age difference between him and his victim was greater than 10 years; and (3) because of that age difference, the court would require registration in any event, an apparent reference to discretionary sex offender registration under section 290.006.
Morales initially sought review of this order by filing a petition for writ of mandate with this court. The petition was summarily denied based on his failure to file an adequate record for review. Rather than filing a new writ petition, Morales filed a timely notice of appeal on March 5, 2009.
II. DISCUSSION
A. Propriety of Postjudgment Motion and Appealability
The trial court denied Morales’s motion to terminate his sex offender registration because it believed it lacked the jurisdiction to consider such a motion in a case where the judgment was already final. Morales argues that if his postjudgment motion was not the correct procedural vehicle, the trial court could nonetheless have reached the merits of his claim by treating the motion as a petition for writ of mandate. The Attorney General has in this case taken no position on the issue, which is currently pending before our Supreme Court in People v. Picklesimer (review granted Oct. 16, 2008, S165680).
A number of other published decisions, including one from this Division, have assumed that postjudgment motions under Hofsheier are proper and that the rulings on those motions are appealable. (People v. Luansing (2009) 176 Cal.App.4th 676; In re J.P. (2009) 170 Cal.App.4th 1292 (J.P.); People v. Hernandez (2008) 166 Cal.App.4th 641; People v. Manchel (2008) 163 Cal.App.4th 1108; Garcia, supra, 161 Cal.App.4th 475.) In Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 76-77 (Lewis), the appellate court was “not convinced” that a postjudgment Hofsheier motion was procedurally appropriate (or, implicitly, that the order denying that motion was appealable), but it elected to treat the appeal from the denial of that order as a petition for writ of mandate. (Lewis, supra, 169 Cal.App.4th at p. 76-77.)
Habeas corpus would not have been appropriate because it requires the petitioner to be in actual or constructive custody, and a sex offender registration requirement is not tantamount to custody. (In re Stier (2007) 152 Cal.App.4th 63, 81-83.)
The Attorney General has not challenged the validity of Morales’s motion or the appealability of the trial court’s ruling. Because the trial court effectively resentenced Morales when it invoked the discretionary registration requirements of section 290.006 as a basis for its decision (see Garcia, supra, 161 Cal.App.4th at p. 483), the order denying the motion amounted to one “made after judgment, affecting the substantial rights of the party,” and was appealable under section 1237, subdivision (b). If, however, the underlying order were not appealable, we would reach the merits of this case by construing the appeal as a petition for writ of mandate, consistent with Lewis, supra, 169 Cal.App.4th at page 77.
B. Equal Protection
The trial court ruled that, assuming it had jurisdiction to consider the motion on its merits, Morales was not entitled to relief under Hofsheier. It relied on Manchel, supra, 163 Cal.App.4th 1108, in which the court held that Hofsheier’s equal protection analysis was limited to nonforcible oral copulation with a child who was 16 or 17. Morales argues that Manchel was incorrectly decided and should not be applied to his case. We agree with Morales.
In Manchel, the 29-year-old defendant was ordered to register as a sex offender after he pled no contest to violating section 288a, subdivision (b)(2) based on his commission of oral copulation with a 15-year-old girl. The Manchel court concluded that because the defendant was more than 10 years older than his 15-year-old victim, his actions also constituted lewd conduct with a child of 14 or 15 years of age, the defendant being at least 10 years older, as punishable under section 288, subdivision (c)(1). (Manchel, at p. 1114.) Because a defendant who violates section 288, subdivision (c) is subject to mandatory sex offender registration regardless of the nature of the lewd act, there is no disparity in treatment under that statute between a offender who has had sexual intercourse with his victim and one who orally copulated his victim. (Manchel, at p. 1114.) According to the Manchel decision, the potential applicability of section 288, subdivision (c) renders the equal protection analysis of Hofsheier “fundamentally alter[ed].” (Manchel, at p. 1114.)
Section 288 provides in relevant part, “(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. [¶]... [¶] (c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.”
Cases published after Manchel, including one by this Division, have rejected its analysis. (See Luansing, supra, 176 Cal.App.4th at pp. 684-685; People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht); J.P., supra, 170 Cal.App.4th at p. 1299.) “Manchel focused on whether the defendant's conviction under section 288a, subdivision (b)(2) could have also supported a conviction for lewd conduct with a 14- or 15-year-old child by a person more than 10 years older under section 288 subdivision (c)(1) because the defendant could have been convicted of that offense if he had committed unlawful sexual intercourse or oral copulation. But the defendant in Manchel had not been convicted under section 288, subdivision (c)(1).” (Luansing, at p. 685.)
Moreover, “Manchel’s holding rests on the erroneous proposition that a person who engages in unlawful sexual intercourse with a minor under section 261.5 necessarily violates section 288, subdivision (a) or subdivision (c)(1) if the minor is less than 14 years old or if the minor is 14 or 15 years old and the offender is at least 10 years older, respectively. This assumption overlooks the fact that unlawful sexual intercourse is a general intent offense [citation] whereas convictions under section 288, subdivision (a) or subdivision (c)(1) require the specific intent to ‘arous[e], appeal[ ] to, or gratify[ ] the lust, passions, or sexual desires of [the offender] or the child[.]’ (§ 288, subd. (a).)” (Ranscht, supra, 173 Cal.App.4th at p. 1373.)
Thus, the approach taken in Manchel “ ‘would have us completely ignore the crime of which a defendant is convicted and look instead to all of the crimes of which a defendant could have been convicted based on his conduct. This holding overlooks Hofsheier’s plain language, which focused on ‘persons who are convicted of voluntary oral copulation..., as opposed to those who are convicted of voluntary intercourse with adolescents in [the] same age group.’ [Citation.] [¶] Consistent with Hofsheier, we think the more appropriate course is to focus on the offense of which the defendant was convicted, as opposed to a hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge. ‘This approach jibes with the mandatory registration statutes themselves, which are triggered by certain convictions..., and not by the underlying conduct of those offenses per se.’ [Citations.]” (Luansing, supra, 176 Cal.App.4th at p. 685, quoting Ranscht, supra, 173 Cal.App.4th at pp. 1374-1375; see also J.P., supra, 170 Cal.App.4th at p. 1299.)
Morales was convicted of oral copulation with a person under 16 years of age by a perpetrator 21 or older under section 288a, subdivision (b)(2). He is similarly situated to persons convicted of sexual intercourse with a person under 16 by a person 21 or older, who are not subject to mandatory registration. (§§ 261.5, subd. (d), 290, subd. (c).) Contrary to the Attorney General’s argument, Morales is not similarly situated to offenders convicted of lewd conduct under section 288, subdivision (c), who are subject to mandatory registration, because a lewd conduct conviction requires a specific intent that is not an element of section 288a, subdivision (b)(2) or 261.5, subdivision (d), and it requires that the perpetrator be at least 10 years older than the victim, rather than simply 21 years of age or older. Under Hofsheier, persons convicted of oral copulation under section 288a, subdivision (b)(2) must be compared to those convicted of unlawful intercourse under section 261.5, subdivision (d). Because sex offender registration would not have been mandatory if Morales had been convicted of unlawful sexual intercourse under this provision, equal protection is violated by applying the mandatory registration provision to his conviction of oral copulation.
It does not matter that Morales and his victim were of the same gender and could not have engaged in unlawful sexual intercourse within the meaning of section 261.5. (See Hofsheier, supra, 37 Cal.4th at p. 1199 [statutes punishing same sexual conduct differently based on sexual orientation would violate equal protection principles].)
C. Discretionary Registration
The trial court denied Morales’s motion for termination of the registration requirement on the alternative ground, that “at best, [Morales] would be entitled to reconsideration by the trial court of whether sex offender registration was called for. Given the age difference at issue in this case, this Court would reimpose the sex offender registration requirement.” This is an apparent reference to the court’s power to impose discretionary sex offender registration under section 290.006 for an offense not enumerated in section 290. The Attorney General argues that because the court indicated it would require sex offender registration in its discretion, Morales’s challenge to mandatory registration under Hofsheier is moot.
Section 290.006 provides, “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of 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.” A court ordering sex offender registration under this discretionary provision must therefore engage in a two-step process: (1) it must determine that the offense was committed as a result of sexual compulsion or for purposes of sexual gratification and state reasons for this finding; and (2) it must state the reasons for requiring registration as a sex offender. (Hofsheier, supra, 37 Cal.4th at p. 1197.)
Sex offender registration is designed to ensure that persons likely to commit similar offenses will be readily available for police surveillance at all times. (Hofsheier, supra, 37 Cal.4th at p. 1196.) When registration is discretionary, one important consideration is the likelihood the defendant will reoffend. (Garcia, supra, 161 Cal.App.4th at p. 485.) In cases where mandatory registration is terminated as a violation of equal protection under Hofsheier, the court should determine whether discretionary registration is appropriate, considering any circumstances occurring after the conviction and original sentencing that are relevant to the defendant’s likelihood of reoffense, including evidence of the defendant’s rehabilitation and good behavior. (Garcia at pp. 483-484.)
Morales committed his offense in 1986 and was sentenced in 1987. Although the statute that first allowed discretionary sex offender registration was not enacted until 1994 (see former § 290, subd. (a)(2)(E); Stats. 1994, ch. 867, § 2.7), our Supreme Court has held that its application to a crime committed before its effective date does not violate the ex post facto clauses of the federal or state Constitution. (People v. Castellanos (1999) 21 Cal.4th 785, 788-791; see also Garcia, supra, 161 Cal.App.4th at p. 486; § 290.023 [sex offender registration statutes to be imposed retroactively].) Morales does not argue that the court was barred from imposing discretionary registration based on the date of his offense.
Morales argues that because the record shows no likelihood that he will reoffend, the discretionary provisions of section 290.006 could not supply an alternative basis for upholding his registration requirement. He relies primarily on Lewis, supra, 169 Cal.App.4th at page 79, in which the court concluded that one of the “reasons for requiring registration” under section 290.006 must be that the defendant is likely to commit offenses similar to those listed in section 290 in the future.
In Lewis, the appellate court issued a writ of mandate directing the trial court to terminate mandatory sex offender registration arising from the registrant’s 1987 conviction of oral copulation with a person under 18. (Lewis, supra, 169 Cal.App.4th at p. 73.) The court rejected an argument that registration could alternatively be imposed as a discretionary matter under section 290.006, concluding there was no risk of reoffense based on the nature of the underlying crime (consensual sex with a 17-year-old victim when the defendant was 22 years old) and the lack of any similar conduct in the 20-plus years following the conviction. (Lewis, at pp. 78-79.)
We do not agree with the suggestion in Lewis that the reasons for discretionary registration under section 290.006 must in all cases include an express determination that the offender is likely to reoffend. The statute itself contains no such requirement, and other factors might support discretionary registration even in the absence of an express finding that the defendant poses a continuing risk. Here, however, there is no suggestion in the record before us that Morales, who was 51 years old when he brought his motion to terminate the registration requirement, has had any sexual contact with a minor since his conviction in this case. The court’s brief reference in its written order to the respective ages of Morales and his victim at the time of the offense (29 years versus 15 years) is not itself sufficient to support a discretionary registration order some 22 years later, when it is untethered to other facts suggesting a current risk of reoffense or other need for registration. (See Lewis, supra, 169 Cal.App.4th at p. 79.)
Though Morales argues that he is therefore entitled to relief from any registration requirement, we think the better course is to remand the case for additional proceedings on this issue. The trial court, which had not presided over Morales’s original sentencing or the earlier criminal proceedings, denied the motion to terminate sex offender registration without holding a hearing and without soliciting input from the district attorney or probation department. Consequently, the record concerning the circumstances relevant to discretionary registration, including Morales’s current likelihood of reoffense, was not fully developed. A new hearing on Morales’s motion must be held so the superior court can reconsider the issue of discretionary registration under section 290.006. Given the number of years that have passed since the original sentencing hearing, the court should obtain a new report from the probation department. (See Cal. Rules of Ct., rules 4.411(b) [“Even if the defendant is not eligible for probation, the court should refer the matter to the probation officer for a presentence investigation and report”] & 4.411(c) [When defendant is eligible for probation, “The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared”].)
Morales advised the court in his motion to terminate mandatory registration that he had entered a no contest plea to the misdemeanor offense of lewd conduct in a public place in 2002. (§ 647, subd. (a).) This conviction was expunged in 2008 and, according to the motion, involved a consensual sexual act with another adult on a public beach during nighttime hours. Sex offender registration is not mandatory for this offense and there is no indication in the record whether it was ordered as a matter of discretion. The circumstances of the 2002 case can and should be fully explored when the court reconsiders the need for discretionary registration in the instant case.
III. DISPOSITION
The order denying Morales’s motion to terminate mandatory sex offender registration is reversed. The case is remanded to the trial court for the purpose of holding a hearing on the issue of discretionary sex offender registration, consistent with the views expressed in this opinion.
We concur. SIMONS, Acting P. J., BRUINIERS, J.