Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC166680B
Bruiniers, J.
Lecah Darod Owens was convicted, pursuant to a guilty plea, of robbery (Pen. Code, § 211) and of committing a lewd act on 14-year-old Jane Doe One (§ 288, subd. (c)(1).) Owens also admitted an allegation that he used obscene matter during the commission of the latter offense. (§ 1203.066, subd. (a)(9).) Owens challenges the sentence imposed after his guilty plea, contending that the trial court abused its discretion in considering the circumstances of other dismissed offenses to select the upper term for robbery. He also argues that the order requiring him to register as a sex offender, under section 290, violates equal protection under the state and federal Constitutions. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. Factual and Procedural Background
On September 28, 2009, the clerk at a gas station in Terra Linda reported that he had been robbed by two masked men, armed with knives. The clerk identified one of the men as Adil Azam, who had been fired from his job at the gas station one week earlier. The other man, who was later identified as Owens, grabbed the clerk’s arm, pointed a knife at his stomach, said “ ‘[m]oney, money, money, ’ ” and forced the clerk to the cash register. The men took approximately $300 from the cash register and fled in a car driven by Dustin Melchior.
Azam and Melchior are not involved in this appeal.
The next day, Azam’s car was stopped by San Rafael police. Melchior was driving the car. Owens, Azam, and a 14-year-old girl (Jane Doe Two) were inside. A search of the car led to the recovery of clothing and the knife used in the robbery.
On September 29, 2009, Jane Doe One reported to San Rafael police that she was involved in a consensual sexual relationship with Owens between September 24, 2008 and September 24, 2009. Jane Doe One said that she had sex with Owens on at least four occasions. Owens used a condom the first time they had sex, but did not on later occasions. Jane Doe One reported watching pornography with Owens. She also reported that he had infected her with the herpes virus.
When the relationship began in September 2008, Owens was aware that Jane Doe One was 14 years old. Owens was 28 years old at the time. Jane Doe One regularly skipped school to spend time with Owens, who supplied her with alcohol and drugs. As a result, Jane Doe One lost a job and her grades suffered. Owens broke off the relationship with Jane Doe One after telling her that he was having a sexual relationship with Jane Doe Two.
After Owens was arrested and in custody, he wrote Jane Doe One a letter in which he asked that she call his attorney and state that she lied about her age. Owens also told Jane Doe One that she did not have to testify against him and that, if she did not, he might be offered a better disposition.
Owens was charged by information with one count of second degree robbery (§ 211; count 1), five counts of committing a lewd act on a child of 14 or 15 (§ 288, subd. (c)(1) [victim 14 or 15 years old and defendant at least 10 years older]; counts 6, 7 & 11–13), two counts of unlawful sexual intercourse with a minor under 16 (§ 261.5, subd. (d); counts 8 & 14), one count of attempting to prevent or dissuade a person from attending or giving testimony (§ 136.1, subd. (a)(2); count 9), and two counts of contributing to the delinquency of a minor (§ 272, subd. (a)(1); counts 10 & 15). With respect to the first count, it was also alleged that Owens personally used a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)(1)). With respect to counts 6 and 7, it was further alleged that Owens used obscene matter (§ 1203.066, subd. (a)(9)) during the commission of the offenses.
Jane Doe One was the victim of counts 6 through 10. Jane Doe Two was the victim of counts 11 through 15.
Owens pleaded guilty to counts 1 and 6. Owens also admitted that he used obscene matter during the commission of count 6. The remaining counts were dismissed, pursuant to a Harvey waiver. The Harvey waiver provided: “I understand and agree that the sentencing judge may consider facts and circumstances underlying the dismissed counts in determining the appropriate sentence (including the amount and recipients of restitution) for the counts to which I am entering a plea.” When asked if he understood and agreed to the Harvey waiver, Owens responded “[y]es.” While acknowledging that he would be required to register as a sex offender as a consequence of his guilty plea, Owens reserved the right to challenge the requirement. At his sentencing, Owens argued that the registration requirement, as applied to his conviction, violated equal protection.
Count 6 alleged that Owens “did willfully and unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of Jane Doe #1... a child of fourteen (14) and fifteen (15) years, to wit: 14 (fourteen), and the said defendant(s) being at least ten (10) years older than the child, to wit: 28 (twenty-eight) years old, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant(s) and the said child, when [Owens] had sexual intercourse with Jane Doe #1 for the first time in... Owens’s residence in San Rafael.”
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Owens was sentenced to a total term of five years and eight months in state prison. The upper term of five years was imposed on count 1 and a consecutive eight-month term was imposed on count 6. Owens was ordered to register as a sex offender. Owens filed a notice of appeal, stating that his appeal “is based on the sentence or other matters occurring after the plea.” He did not obtain a certificate of probable cause.
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” But, a “defendant need not [obtain a certificate of probable cause] if the notice of appeal states that the appeal is based on... [¶] [g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B); see also People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).)
II. Discussion
On appeal, Owens contends that the trial court abused its discretion in considering the circumstances of dismissed counts to select the upper term for count 1. He also argues that the order requiring him to register as a sex offender, under section 290, violates equal protection under the state and federal Constitutions. Neither argument has merit.
A. Harvey Waiver
We first address Owens’s contention that the trial court “abused its discretion in using aggravating circumstances from non-transactionally-related offenses to select the upper term for the principal offense.”
1. Background
The trial court explained its sentencing decision as follows: “As to the appropriate term as to either count, at least in theory, the Court must impose the robbery count first as it has the... greater sentence.... [¶] As to the circumstances in aggravation and mitigation, I agree that [it] is a significant and, in my opinion, severely aggravated factor that the defendant infected Jane Doe 1 with the herpes virus, and her account of dealing with that certainly underscores that issue. [¶] Similarly in the probation officer’s report, the defendant... was a direct participant in the robbery, and his conduct, including the holding of a weapon, is an indication of violent conduct which does indicate a serious danger to society. [¶] With regard to the defendant’s previous performance on probation, I agree that it may well be said that he did not perform appropriately or well in those previous grants. [¶] The People also urge the Court to consider, and I think it is appropriate under the Harvey waivered counts as well as Rule 4.421(a)(6), that the defendant did attempt to dissuade a witness from testifying, and arguably in the act of suborning perjury as to Jane Doe 1 and the conduct that he was soliciting from her before the matter proceeded to adjudication.
“As to circumstances in mitigation... the defendant has only a few criminal convictions on his record. [¶]... [¶] As to the appropriate term, it is my view that the aggravated term is appropriate, and I think the Court can properly consider that Harvey waivered count, even though they may not directly relate to the 211, in determining whether it was an appropriate sentence. I do believe based on those things that I’ve cited that the aggravated term of five years is appropriate, and I will impose that term as to Count 1.”
Owens’s trial counsel objected to the court’s consideration of aggravating circumstances underlying the dismissed counts.
2. Analysis
Owens challenges the court’s reliance on two aggravating factors—Owens’s infection of Jane Doe One with the herpes virus and Owens’s attempt to dissuade Jane Doe One from testifying. He claims that “the trial court abused its discretion by relying [on these] two facts from the unrelated sex offenses to select the upper term as to the robbery.” According to Owens, “no court has ever held that a Harvey waiver permits facts related to other offenses of which the defendant is not convicted to be used to aggravate the principal term, as was the case here.”
The factor regarding Owens’s attempt to dissuade Jane Doe One from testifying clearly related to dismissed count 9. Presumably Owens infected Jane Doe One with herpes on an occasion other than the first time they had intercourse, which was the factual basis for count 6. Owens used a condom on that occasion.
In Harvey, supra, 25 Cal.3d 754, our Supreme Court held: “Implicit in... a plea bargain... is the understanding (in the absence of any contrary agreement) that [a] defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Id. at p. 758, italics added.) This rule does not apply when the dismissed counts are “transactionally related” to the count for which sentence is being imposed. (Ibid.)
But, here, Owens explicitly agreed to a Harvey waiver as part of his plea agreement. “A Harvey waiver permits a sentencing court to consider counts that were dismissed under a plea bargain and that are not transactionally related to the admitted offense. [Citations.]” (In re Carl N. (2008) 160 Cal.App.4th 423, 427, fn. 3; see also People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 5 [“a defendant may agree as part of a plea bargain that the trial court may consider at sentencing the facts of unrelated dismissed or uncharged crimes”]; People v. Moser (1996) 50 Cal.App.4th 130, 132–133.)
Even if we agree with Owens’s contention that these statements are dicta, we are nonetheless compelled to affirm the sentence imposed. Owens explicitly agreed that “the sentencing judge [could] consider facts and circumstances underlying the dismissed counts in determining the appropriate sentence... for the counts to which [he entered] a plea.” Thus, the terms of Owens’s plea agreement explicitly authorized the trial court’s actions.
“In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]” (Panizzon, supra, 13 Cal.4th at p. 76.) Because the Harvey waiver was part and parcel of the negotiated plea agreement, Owens’s challenge to that waiver is, in substance, an attack on the validity of his plea. Accordingly, his failure to obtain a certificate of probable cause bars further review. (See Panizzon, at pp. 74–76, 78–79.)
In any event, even if Owens’s Harvey argument was both well-taken and cognizable on appeal without a certificate of probable cause, any error would be harmless. “Only a single aggravating factor is required to impose the upper term....” (People v. Osband (1996) 13 Cal.4th 622, 728.) The trial court noted at least two aggravating circumstances that had nothing to do with the dismissed counts. It does not appear that the trial court would have chosen a lesser sentence even if it had not considered the aggravating circumstances of the dismissed counts. The trial court did not abuse its discretion in sentencing Owens to the upper term on count 1.
B. Equal Protection
Next, Owens argues that “[t]he trial court’s imposition of the section 290 registration requirement denied [him] equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution.” Specifically, Owens asserts that he “is similarly situated with defendants who are convicted of... unlawful intercourse under section 261.5, and not required to register.”
Under section 290, “Every person [convicted of any act punishable under Section 288 or 288a], for the rest of his or her life while residing in California, or while attending school or working in California... shall be required to register with the chief of police of the city in which he or she is residing....” (§ 290, subds. (b), (c).) In contrast, those convicted of violating section 261.5 are only subject to registration pursuant to the discretionary provisions of section 290.006 (former § 290, subd. (a)(2)(E)). Nonetheless, we conclude that the mandatory registration requirement, when applied to offenders convicted of violating section 288, subdivision (c)(1) (hereafter § 288(c)(1)), does not offend equal protection.
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.”
“Registration as a sex offender is mandatory and is not a permissible subject of a plea agreement negotiation. [Citations.]” (People v. Hernandez (2008) 166 Cal.App.4th 641, 647, disapproved on other grounds by People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4 (Picklesimer).) Thus, Owens’s challenge to the registration requirement does not challenge the validity of his plea and a certificate of probable cause was not required.
1. Background
At sentencing, the trial court stated: “I’m not disturbed at all by the consequences [of the registration requirement] to Mr. Owens. At 28 or 29 years old, seeking a union with a young woman of 14 or 15 or even 16 years old is something, that our society at least clearly declares wrong. His conduct with her is appropriately condemned by the law and certainly is appropriately directed to us by the legislature as being one for which registration... is appropriate. I don’t really quarrel with that under the facts of this case especially. And if I had the discretion, I believe I still would impose the registration requirement. I don’t believe I do have discretion. But as I say, if I did, I think I would impose it in any event. [¶] I understand [Owens] has a 10-year-old daughter, and I just can’t imagine him not being outraged if four years from now she was subject to similar conduct to which he subjected Jane Doe 1. It is totally inappropriate and merits the condemnation of our society.”
2. Analysis
“The United States and California Constitutions entitle all persons to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) This guarantee means ‘that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances.’ [Citation.] A litigant challenging a statute on equal protection grounds bears the threshold burden of showing ‘that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citation.] Even if the challenger can show that the classification differently affects similarly situated groups, ‘[i]n ordinary equal protection cases not involving suspect classifications or the alleged infringement of a fundamental interest, ’ the classification is upheld unless it bears no rational relationship to a legitimate state purpose. [Citation.]” (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1372 (Ranscht).)
Owens’s reliance on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) is misplaced. In Hofsheier, a 22-year-old man pleaded guilty to orally copulating a 16-year-old girl, in violation of section 288a, subdivision (b)(1). The defendant was placed on probation, subject to 120 days in county jail and to mandatory sex offender registration, pursuant to section 290, former subdivision (a)(1)(A) (now § 290, subd. (b)). (Hofsheier, at pp. 1192–1194.) Defendant appealed, contending that he was denied equal protection because if he had been convicted of unlawful, voluntary sexual intercourse with a minor under section 261.5, he would not be subject to mandatory registration, but only discretionary registration under former section 290, subdivision (a)(2)(E). (Hofsheier, at pp. 1194–1195.)
Section 288a, subdivision (b), provides: “(1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. [¶] (2) 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.”
Section 261.5, subdivisions (a) through (d), provides: “(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age of 18 years and an ‘adult’ is a person who is at least 18 years of age. [¶] (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. [¶] (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. [¶] (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.”
Our Supreme Court framed the question on appeal as “the validity of the mandatory registration requirement for the first category [section 288a, subdivision (b)(1)]—voluntary acts of oral copulation when the victim is 16 or 17 years of age.” (Hofsheier, supra, 37 Cal.4th at p. 1195.) The court noted that the first question was whether “ ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (Id. at p. 1199.) “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citation.]” (Id. at pp. 1199–1200.) On this point, the court concluded that section 288a, subdivision (b)(1), and section 261.5 were “ ‘sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.’ [Citation.]” (Hofsheier, at p. 1200.) The only difference between the two sections was the nature of the sexual act. The Supreme Court concluded there was no rational basis for requiring mandatory sex offender registration for a person convicted of voluntary oral copulation of a 16-year-old girl but not of a person convicted of voluntary sexual intercourse with a girl of the same age. (Id. at pp. 1201–1207.) Accordingly, the court held that the mandatory sex offender registration requirement, as applied to a person convicted of orally copulating a 16 year old, violated equal protection. (Id. at p. 1207.) The case was remanded to the trial court for a determination of whether the defendant should be subject to discretionary registration. (Id. at p. 1209.)
Hofsheier is obviously distinguishable. In this case, Owens did not plead guilty to voluntary oral copulation of a 16 year old, in violation of section 288a, subdivision (b)(1). Rather, he pleaded guilty to committing a lewd act on a 14 year old, in violation of section 288(c)(1). He is not similarly situated to those convicted of section 261.5 offenses.
Section 288, provides, in relevant part: “(a)... [A]ny 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 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.” (Italics added.)
The Second District Court of Appeal’s reasoning in People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel), disapproved on other grounds by Picklesimer, supra, 48 Cal.4th at page 338, fn. 4, explains why those convicted of violating section 288(c)(1), are not similarly situated to those convicted of violating section 261.5. In Manchel, a 29-year-old defendant pleaded no contest to oral copulation of a 15-year-old girl, in violation of section 288a, subdivision (b)(2). The defendant was placed on probation and ordered to register as a sex offender. (Manchel, at p. 1110.)
The Manchel court distinguished Hofsheier, noting that because the defendant was more than 10 years older than the victim, his conduct also violated section 288(c)(1). The court reasoned: “Hofsheier turned on the disparity in treatment of an adult offender who engaged in different kinds of sexual conduct with a 16-year-old minor—the fact that engaging in voluntary oral copulation landed a person in the category of mandatory registration when having voluntary sexual intercourse with the same victim would not.... [¶] This core element of the Hofsheier equal protection analysis—that if he had gone ahead and had intercourse with the victim he could not have been subjected to mandatory registration, but because he engaged in oral copulation he was—does not hold true for Manchel. Because Manchel’s victim was 15 years old and he was at least 10 years older than she was, whether Manchel was subject to mandatory registration did not hinge on the distinction of whether the sexual conduct he engaged in with her was oral copulation or sexual intercourse. Either... constituted a lewd and lascivious act under section [288(c)(1)] and subjected Manchel to mandatory lifetime registration as a sex offender.” (Manchel, supra, 163 Cal.App.4th at p. 1114.) The court said: “Manchel falls within statutes that provide for mandatory registration regardless of whether he engaged in intercourse or oral copulation, [and he] cannot establish that he is similarly situated to another group of offenders who are not subject to mandatory sex offender registration.” (Id. at p. 1115.) Accordingly, the defendant could not establish an equal protection violation. (Ibid.)
This Division and other courts of appeal have criticized Manchel because Manchel had not in fact been convicted under section 288(c)(1). (See People v. Luansing (2009) 176 Cal.App.4th 676, 685, disapproved on other grounds by Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4; Ranscht, supra, 173 Cal.App.4th at p. 1373; In re J.P. (2009) 170 Cal.App.4th 1292, 1299 (J.P.).) But, contrary to Owens’s assertion, we did not, in J.P., “reject[] Manchel’s premise that conviction under section 288(c)(1) would have justified imposition of the [registration] requirement....” Instead, we observed: “We are unconvinced by the [Manchel court’s] approach, which would require us to look beyond the statutory elements of the offense [the defendant] admitted. While the Hofsheier decision discussed the factual scenarios that typically underlie the statutes it was considering, its equal protection analysis involved a comparison of ‘persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors.’ [Citation.] 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.” (J.P., at p. 1299.)
None of these cases involved a defendant who had been convicted of violating section 288(c)(1). (People v. Luansing, supra, 176 Cal.App.4th at p. 678; Ranscht, supra, 173 Cal.App.4th at p. 1372; J.P., supra, 170 Cal.App.4th at pp. 1293–1294.) People v. Garcia (2008) 161 Cal.App.4th 475 is distinguishable for the same reason. (Id. at pp. 478, 481, disapproved on other grounds by Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4.)
Similarly, the Ranscht court observed: “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.)
These criticisms of Manchel are not helpful to Owens’s case, however. Here, unlike in Manchel, Owens was actually convicted of violating section 288(c)(1). People v. Anderson (2008) 168 Cal.App.4th 135 (Anderson), rejected the equal protection argument made by a defendant required to register after such a conviction. (Id. at p. 140.)
In Anderson, the defendant was convicted of committing a lewd or lascivious act on a 14 or 15 year old by a person at least 10 years older (§ 288(c)(1)). (Anderson, supra, 168 Cal.App.4th at p. 138.) The Anderson court noted: “First, [Hofsheier’s] holding was limited to mandatory sex offender registration for violating section 288a, subdivision (b)(1). The high court made it clear repeatedly in its opinion that its analysis was limited to an equal protection challenge involving mandatory registration for one convicted of voluntary oral copulation with a minor 16 or 17 years old (§ 288a, subd. (b)(1)), as compared with discretionary registration for one convicted of voluntary sexual intercourse with a 16- or 17-year-old minor (§ 261.5). (See, e.g., Hofsheier, supra, 37 Cal.4th at pp. 1192, 1194, 1195, 1196, 1197, 1198, 1200, 1201, 1204, 1205, 1206, 1207.) [¶] Second, the high court made it plain that its equal protection analysis was concerned with circumstances in which the act (i.e., oral copulation with a minor, prohibited by section 288a, subdivision (b)(1)) is both voluntary and the victim is 16 or 17 years old.... [¶] In this instance, we are dealing with mandatory registration based on a conviction under section 288(c)(1), i.e., committing a lewd act on a child who is 14 or 15 years old where the perpetrator is at least 10 years older than that child. Not only does that particular provision contain specific protection for minors of an age group younger than the victim involved in Hofsheier, it also (unlike § 288a) contains a specific intent requirement. And, unlike Hofsheier, there is no relevant similarly situated group for which mandatory registration is not required that may serve as the basis for an equal protection challenge here.” (Anderson, at pp. 141–143.) The court concluded: “[T]he reasoning of the Supreme Court in Hofsheier is inapposite here. Accordingly, we reject defendant’s claim that mandatory registration as a consequence of his conviction under section 288(c)(1) is unconstitutional.” (Anderson, at p. 144.)
Owens was convicted of violating section 288(c)(1), for having sexual intercourse with Jane Doe One, who was 14 at the time. Just like the defendant in Anderson, Owens is not similarly situated to offenders convicted of unlawful sexual intercourse with a minor, who are not subject to mandatory registration. (§§ 261.5, 290, subd. (c).) The offense of which Owens was convicted requires a specific intent that is not required to show a violation of section 261.5. Section 288(c)(1), also requires that the perpetrator be at least 10 years older than the victim, which is not required under any subdivision of section 261.5. Quite simply, Owens has not established “ ‘[t]he first prerequisite to a meritorious claim under the equal protection clause[, which] is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (Hofsheier, supra, 37 Cal.4th at p. 1199.)
The order requiring Owens to register as a sex offender does not violate the equal protection clauses of either the state or federal Constitutions. (Anderson, supra, 168 Cal.App.4th at pp. 141–144; see also People v. Cavallaro (2009) 178 Cal.App.4th 103, 115.)
III. Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.