Opinion
A129373
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. MANOJ PATEL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 070608-5)
Manoj Patel appeals from a judgment entered after a jury convicted him of attempting to commit a lewd act on a child under the age of 14, (Pen. Code, §§ 288, subd. (a), 664) and attempting to distribute harmful material to a minor through the internet (§§ 288.2, subd. (b), 664.) He contends (1) the trial court violated his right to equal protection when it ordered him to register as a sex offender, and (2) some of the probation conditions the court imposed are impermissibly vague and overbroad. We agree some of appellant's probation conditions should be modified to make them more clear. In all other respects we will affirm the judgment.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2006, appellant entered a nonsexual internet chat room hosted by Yahoo and initiated a conversation with a young girl named "Cindy." Appellant told "Cindy" he was a 40-year-old man from Pleasanton. "Cindy" said she was 13 years old and that she lived in Concord. In fact, "Cindy" was a decoy profile created by Detective Ava Ahearn of the Concord Police Department as part of a sting operation to catch online pedophiles.
Appellant told "Cindy" he was looking for someone he could meet offline. "Cindy" replied "sur . . . wat you wanna do?" Appellant said he was looking for sex and he asked "Cindy" whether she was a virgin. "Cindy" said she was.
"Cindy" asked appellant whether he liked young girls. Appellant replied he had never had sex with one but that he would "like to." He asked "Cindy" where they could meet and whether she had "big boobs." "Cindy" suggested meeting at her mother's apartment and added that her "boobs aren't very big." Appellant agreed to meet "Cindy" the following day while her mother was at work.
Appellant asked "Cindy" why she wanted to have sex. She replied "Why not?" Appellant asked "Cindy" whether having sex would hurt her "deep inside of [her] pussy?" "Cindy" replied, "[h]urt so gud" followed by an emoticon. Appellant again asked "Cindy" whether she was sure she wanted to have sex. "Cindy" replied, "Sure. Bring condoms. I don't want to get preg." They also discussed whether "Cindy" would copulate appellant orally and whether he would wear a condom.
Appellant obtained "Cindy"'s cell phone number and they had several telephone conversations the following day. Community Service Officer Heather Weston pretended to be "Cindy" on the calls. Appellant and "Cindy" agreed to meet although appellant told "Cindy" they "may not do anything today." "Cindy" said that was "okay" and that she was "totally down with a blow job and we can just go from there."
Later that day, appellant knocked on the door of the residence that "Cindy" had provided. He was met not by "Cindy" but by Sergeant William Roche of the Concord Police Department. Sergeant Roche placed appellant under arrest.
Based on these facts, an information was filed charging appellant with attempting to commit a lewd act on a child under the age of 14, and attempting to distribute harmful material to a minor through the internet.
The case proceeded to a jury trial where the prosecution presented the evidence we have set forth above. Appellant testified on his own behalf and he acknowledged chatting with "Cindy" online. Appellant denied, however, knowing that "Cindy" was 13 and he was adamant he would never have sex with a 13-year-old.
The jurors rejected this defense and convicted appellant on both counts.
Subsequently, the court suspended the imposition of sentence and placed appellant on probation subject to several terms and conditions.
This appeal followed.
II. DISCUSSION
A. Equal Protection
Section 290, subdivision (b) requires anyone convicted of certain sex offenses to register for life as a sex offender. Both of the offenses appellant committed trigger the registration requirement; (see § 290, subd. (c)); therefore, the trial court ordered appellant to register as a sex offender for the remainder of his life. Appellant now contends the trial court violated his equal protection rights when it ordered him to resister.
The concept of equal protection is based on the principle that persons similarly situated with respect to the legitimate purpose of the law should receive like treatment. (In re Eric J. (1979) 25 Cal.3d 522, 531.) The first prerequisite to a meritorious equal protection claim is "a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (Id. at p. 530.) The use of the term "similarly situated" recognizes the fact that the Constitution does not require things that are different in fact or opinion to be treated in law as though they were the same. (In re Roger S. (1977) 19 Cal.3d 921, 934.) "The 'similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
With these principles in mind, we turn first to appellant's conviction for attempting to commit a lewd act on a child under the age of 14 under section 288, subdivision (a). Appellant contends mandatory registration under that statute violates equal protection because a person convicted of unlawful intercourse with a minor under section 261.5 is not automatically subject to lifetime registration.
Applying the principles forth above, we find no equal protection violation. First, appellant concedes the fact that he was convicted of attempting to commit a lewd act on a child under the age of 14 is not relevant to the equal protection analysis. Thus, the issue is reduced to whether one who commits a lewd act on a child under the age of 14 under section 288, subdivision (a) is "similarly situated" to one who engages in unlawful intercourse with a minor under section 261.5. It is plain the answer is no.
Section 288, subdivision (a) makes it a crime to commit a lewd act on a child under the age of 14. It is a specific intent offense and it requires that the defendant have "'the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.'" (People v. Warner (2006) 39 Cal.4th 548, 557, quoting People v. Raley (1992) 2 Cal.4th 870, 907, italics omitted.) Unlawful intercourse under section 261.5, by contrast, simply makes it a crime to engage in sexual intercourse with a minor. It is a general intent offense. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1373.) We do not hesitate to conclude that those who commit the specific intent crime of committing a lewd act with a child under the age of 14 are not "similarly situated" to those who commit the general intent offense of having unlawful intercourse with a minor.
The conclusion we reach on this point is fully supported by prior case law. The court in People v. Alvarado (2010) 187 Cal.App.4th 72, faced the same argument that appellant makes here. The Alvarado court rejected it flatly, "there is no equal protection violation in imposing mandatory registration for defendant's attempted section 288(a) conviction. Defendant fails to establish any similar crime in which mandatory registration is not required. Defendant has not shown that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] A section 261.5 offense does not require the victim to be under the age of 14 and concerns the general intent offense of committing unlawful sexual intercourse." (Id. at p. 79.)
Similarly, in People v. Singh (2011) 198 Cal.App.4th 364, the defendant was captured in a sting operation and was convicted of attempting to commit a section 288, subdivision (a) offense. On appeal he argued the court violated his equal protection rights when it required him to register as a sex offender. The Singh court disagreed, "Singh has not met his threshold burden of showing "'that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."' [Citation.] Despite his contentions, Singh is not similarly situated to offenders convicted under section 261.5, 288a(b)(1) or 289(h) because those provisions are not limited to children under the age of 14 and are general intent offenses. Accordingly, Singh's equal protection argument fails." (Id. at p. 371.)
Consistent with the decisions reached in Alvarado and Singh, we conclude that one who commits a violation of section 288, subdivision (a) is not similarly situated to one who violates 261.5. There is no equal protection violation.
None of the arguments appellant advances convince us a different conclusion is appropriate. First and primarily, appellant argues that People v. Hofsheier (2006) 37 Cal.4th 1185, supports the conclusion that there was an equal protection violation. In Hofsheier, the defendant pleaded guilty to oral copulation with a minor under the age of 18 in violation of section 288a, subdivision (b)(1) and was required to register as a sex offender. (Id. at pp. 1192-1193.) On appeal the defendant argued he was denied equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor under the age of 18 under section 261.5, would not be subject to mandatory registration under section 290. (Id. at p. 1194.) Our Supreme Court agreed that these two categories of persons were similarly situated for equal protection purposes: "section 288a(b)(1) and section 261.5 both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors 'are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify unequal treatment.' " (Id. at p. 1200, quoting People v. Nguyen, supra, 54 Cal.App.4th at p. 715.)
The offense appellant committed, section 288, subdivision (a) and offense he has identified for comparison purposes, section 261.5, both concern sexual conduct with minors. But any similarity with Hofsheier ends there. As we have stated, section 288 subdivision (a) is a specific intent offense that is committed against a child under the age of 14, while section 261.5 is a general intent offense committed against those who are minors. Hofsheier is not controlling where, as here, there are very significant differences between the two offenses at issue. Unlike Hofsheier, the differences are more than "the nature of the sexual act" criminalized in the two statutes. (People v. Hofsheier, supra, 37 Cal.4th at p. 1200.)
Next, appellant argues the fact that a section 288, subdivision (a) offense is a specific intent offense committed against a child under the age of 14, while a section 261.5 offense is a general intent offense that is committed against a minor is not significant for equal protection purposes. Case law is to the contrary. (See People v. Alvarado, supra, 187 Cal.App.4th at p. 79; People v. Singh, supra, 198 Cal.App.4th at p. 371.) So is common sense. One who commits a crime against a child under the age of 14 with the specific intent of arousing, appealing to, or gratifying the lust of the child or the himself is significantly more culpable that one who simply engages in unlawful intercourse with a minor. Equal protection does not require that things that are different be treated as though they were the same. (In re Roger S., supra, 19 Cal.3d at p. 934.)
In a related argument, appellant argues that "the relevant comparison group is with persons convicted of having voluntary sexual contact of any kind (i.e., 'lewd and lascivious conduct') with a 13-year-old and those convicted of having voluntary sexual intercourse with a 13-year-old." According to appellant the proper focus of an equal protection analysis is on the fact that both statutes can be applied to "those who commit sexual offenses with 13 year olds but are simply punished under different statutes." We reject this argument because it is contrary to well-settled California law. Time and time again, the courts of this state have ruled that to establish an equal protection violation, a defendant must show that the state has adopted a classification scheme that affects two or more similarly situated groups in an equal manner. (People v. McKee (2010) 47 Cal.4th 1172, 1202; People v. Hofsheier, supra, 37 Cal.4th at p. 1199; In re Eric J., supra, 25 Cal.3d at p. 531; People v. Nguyen, supra, 54 Cal.App.4th at p. 714.) Thus, the relevant comparison is the classification scheme the state has adopted and whether it treats similarly situated groups in an equal manner. Appellant's argument to the contrary is unavailing.
Because appellant violated section 288, subdivision (a), the court properly ordered him to register as a sex offender. Appellant's equal protection rights were not violated.
Having reached this conclusion, we need not decide whether the court could also have required appellant to register as a sex offender based on his conviction of violating section 288.2, subdivision (b).
B. Probation Conditions
The trial court placed appellant on probation subject to several terms and conditions. Among other things, the court ordered as follows:
(1) "He shall not contact minors via the Internet."
(2) "He's to have no contact with any minors under the age of 18 with the exception of his son until authorized by Probation."
(3) "He's not to be involved in any organizations or employment which would place him in direct contact with minors."
(4) "He's not to frequent or use places or visit places that exist primarily for the use of minors."
(5) "That his residence location must be approved by Probation and not be within 200 yards of any school, playground, or other facility frequented primarily by children."
(6) "[H]e is not to have contact with or reside with any other convicted sex offenders."
(7) "[H]e is not to use the Internet to enter chat rooms of any kind while he is on probation."
Appellant now challenges each of the conditions set forth above.
First appellant argues that conditions 1, 2, 4, 5, and 6 are impermissibly vague and overbroad because they lack a knowledge requirement.
A probation condition must be sufficiently precise for the probationer to know what is required of him and for the court to determine whether the condition has been violated. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Courts applying this principle have long held that a probation condition that forbids certain conduct, but that lacks a knowledge requirement, is invalid because it is impermissibly vague and overbroad. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 816.) The appropriate remedy is to modify the condition to add a knowledge requirement. (Ibid.)
Here, the conditions appellant has identified above are impermissibly vague and overbroad because they lack a knowledge requirement. We will order the appropriate modifications.
The People do not dispute that the conditions in question are impermissibly vague and overbroad. However, they argue no modification is necessary under a recent decision by our colleagues in the Third District, People v. Patel (2011) 196 Cal.App.4th 956.
In Patel, the defendant was granted probation on the condition that he not drink alcohol, possess it, or be in a place where it was the chief item of sale. (Patel, supra, 196 Cal.App.4th at p. 959.) The defendant appealed and his appointed counsel on appeal filed an opening brief that asked the court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. The Patel court reviewed the record and identified an arguable issue: whether the alcohol condition was invalid because it lacked a knowledge requirement. (Patel, supra, 196 Cal.App.4th at p. 959.) The Patel court noted that many cases had explained the need for a knowledge requirement and it expressed frustration with how frequently the issue still arose. Citing "the interests of fiscal and judicial economy," the Patel court then adopted a new procedure: "there is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter. As with contracts generally, this should be considered a part of the conditions of probation ' "just as if [this was] expressly referred to and incorporated." ' [Citations.] We also do not discern how addressing this specific issue on a repetitive case-by-case basis is likely to dissuade a probation officer inclined to act in bad faith from finding some other basis for harassing an innocent probationer. As a result, we . . . now give notice of our intent to henceforth no longer entertain this issue on appeal, whether at the request of counsel or on our own initiative. We construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly. It will no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement." (Id. at p. 960.)
Like the Patel court, we too are frustrated by how frequently this issue arises, and in these days of strained budgets, we agree that interests of fiscal and judicial economy are critical. However, we respectfully decline to follow the lead of the Patel court on this issue for one simple reason. Our Supreme Court faced this same issue recently and the remedy it mandated was clear: "we agree with the Court of Appeal that modification to impose an explicit knowledge requirement is necessary to render the condition constitutional." (In re Sheena K., supra, 40 Cal.4th at p. 892, italics added.) Until our Supreme Court rules differently, we will follow its lead on this point. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Next, appellant challenges condition 6 that states he is "not to have contact with or reside with any other convicted sex offenders." Appellant argues the condition is not clear and he complains that "[i]f a person has an out of state conviction for a 'sex offense' would 'contact' with this person be banned? How is appellant to know a person's conviction qualifies? Is section 290 registration sufficient. Must appellant know the person is required to register?" Appellant creates problems where none exist. With the addition of the knowledge requirement, condition 6 is reasonably clear. If appellant knows someone is a convicted sex offender, he must not have contact with or reside with that person. If appellant lacks that knowledge, there is no violation. The condition is adequate.
Appellant also challenges condition 6 arguing it might conflict with other probation conditions that require him to participate in sex-offender related counseling and treatment. Appellant argues that such treatment might require him to participate in group therapy with other sex offenders and thus could result in a probation violation. Appellant has not cited any evidence that indicates he will be required to participate in group therapy with other sex offenders as part of his treatment program. In any event, the People do not object to a modification and we agree. The condition should be modified to state that appellant must not knowingly have contact with or reside with any other convicted sex offenders, except as is necessary to comply with other conditions of probation.
Next, appellant challenges condition 3 requiring that he "not . . . be involved in any organizations or employment which would place him in direct contact with minors." Appellant argues the term "involved in" is not clear and he questions whether he would be "'involved' in his local Parent-Teacher's Association or any organization that relates to youth if all he does is make a financial contribution, or contribute insight or expertise as a board member?" Again, appellant creates ambiguity where none exists. The condition does not prevent appellant from becoming involved in an organization that addresses the needs of minors. Rather, it precludes him from becoming involved in "any organizations or employment which would place him in direct contact with minors." (Italics added.) If appellant's involvement as the member of some board would place him in direct contact with minors, he cannot participate. If appellant's involvement would not place him in contact with minors, he can. The condition is sufficiently clear.
In a related argument, appellant challenges the aspect of condition 3 that precludes him from becoming involved in any organization or employment that would put him in "direct contact" with minors. Appellant argues the term "direct contact" is not clear and he questions whether he could get a job "selling tickets at a movie theater or working as a janitor at a movie theater[.]" The term "direct contact" is reasonably clear. It means person-to-person interaction. If some job would require appellant to interact with minors on a person-to-person basis, it is off-limits. If it does not, it is permissible. Appellant need only ask a prospective employer if selling tickets at a movie theater or working as a janitor would involve direct contact with minors.
Appellant also complains about condition 3 arguing "the dizzying range of possibilities for other employment in which appellant could come in direct contact with minors, only underscores the inadequate level of notice in the condition." Appellant's argument is based on a false premise. The condition only prohibits appellant from activity that "would" place him in direct contact with minors, not "could" place him in direct contact. Read in context, the condition is adequate.
Next, appellant challenges condition 7 that precludes him from using the internet to "enter chat rooms of any kind while he is on probation." Appellant notes there has been a proliferation of chat rooms on the internet and he argues that he might violate this condition by entering a chat room inadvertently. Appellant admits that he knows what a chat room is. If appellant should knowingly enter a chat room he would be violating his probation. If he should enter a chat room inadvertently he must leave. The condition is clear enough.
Appellant cites to People v. Nakai (2010) 183 Cal.App.4th 499, 501, footnote 2, which defines a chat room as "a social Internet site. When a computer user enters a chat room, the user's computer screen displays a list of names of other people that are in the chat room and the ongoing chat dialogue that is taking place between the people in the chat room. Chat rooms can be public or private. To enter a private chat room, a computer user clicks on the name of another person in the chat room, from the list of names, and then an independent window pops up inviting the other person to chat privately—outside of the ongoing chat dialogue. The private chat then takes place in the independent window, so as to remain private."
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Finally, appellant complains that chat services are used by various businesses as part of their technical support. Although appellant has not developed his argument fully, he seems to contend that it would be unfair to preclude him from using a chat forum that does not involve interaction with strangers. But even in a business-related chat room, appellant would be interacting with strangers. The trial court reasonably could restrict appellant from engaging in the type of activity that was the very basis for his crimes.
III. DISPOSITION
Appellant's probation conditions are modified as follows:
Appellant shall not knowingly contact minors via the internet.
Appellant must not knowingly have contact with any minors under the age of 18 with the exception of his son until authorized by Probation.
Appellant must not knowingly frequent or use places or visit places that exist primarily for the use of minors.
Appellant's residence location must be approved by Probation and appellant must not knowingly be within 200 yards of any school, playground, or other facility frequented primarily by children.
Appellant must not knowingly have contact with or reside with any other convicted sex offenders, except as is necessary to comply with other conditions of probation as determined in advance by Probation.
In all other respects, the judgment is affirmed.
Jones, P. J. We concur: Needham, J. Bruiners, J.