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People v. Ramsey

California Court of Appeals, Fourth District, First Division
Jul 21, 2008
No. D051060 (Cal. Ct. App. Jul. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GREGORY CHRISTOPHER RAMSEY, Defendant and Appellant. D051060 California Court of Appeal, Fourth District, First Division July 21, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD 204287, Timothy R. Walsh, Judge.

O'ROURKE, J.

Gregory Christopher Ramsey pleaded guilty to "digitally penetrat[ing] the genital opening of a person under the age of 18" (Pen. Code, § 289, subd. (h); count 3) and furnishing a controlled substance, methamphetamine, to an individual under the age of 18. (Health and Saf. Code, § 11353, subd. (c); count 5.) Ramsey was 35 years old when he committed the offenses. As part of the plea bargain, Ramsey was advised he faced possible lifetime registration as a sex offender under section 290.

All further statutory references are to the Penal Code unless otherwise stated. Section 289, subd. (h) states, "Except as provided in section 288, any person who participates in an act of sexual penetration with another person who is under the age of 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year." Section 289, subd. k (1) defines "sexual penetration" as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. Section 289, subd. k (2) states " 'foreign object, substance, instrument, or device' shall include any part of the body, except a sexual organ."

The court sentenced Ramsey to 365 days in jail, placed him on 5 years of probation, and required him to register as a sex offender under section 290, subdivisions (b) and (c). The court denied Ramsey's motion to modify his probation order to delete the section 290 registration requirement.

Ramsey contends the trial court violated his constitutional right to equal protection under the law by requiring him to register as a sex offender and, alternatively, it would have been an abuse of discretion for the trial court to order his registration under section 290.006. The Attorney General concedes the mandatory registration order violated Ramsey's equal protection rights, but contends the trial court properly exercised its discretion to order his registration. We agree with the Attorney General and affirm.

Section 290.006 states, "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."

BACKGROUND

The trial court denied Ramsey's motion to remove the registration requirement, stating: "[T]he law requires that any conviction for a [section] 289 be a registrable offense. I ordered that. I'll maintain that." The trial court, in the alternative, stated, "I think I still would order [registration] under the discretion that I have under [section 290.006.]" The court added, "All the statements of the defendant and everything that has come out in the probation report and everything that came out in the psychological report, including the fact that he said that as he was driving down the street, he saw the victim in this case. He picked her up because she was hot-looking. He had no prior knowledge of who this person was. He had no prior knowledge or any kind of intent, other than those that centered around sexual gratification." The court relied on the following statement made in the psychologist's report: "It is all so risky in that it is evident from the instant offense [Ramsey] can lose boundaries and wind up with young women who are still minors." The court reiterated, "So even if I had not made the prior ruling . . . I think the analysis would still cause me to obligate him to register under the discretionary section."

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. (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.)

Ramsey 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 digitally penetrating a minor under the age of 18 (§ 289, subd. (h). He argues that, comparable to the situation in Hofsheier, he is similarly situated to a defendant convicted of voluntary sexual intercourse with a minor (§ 261.5, subd. (c)), 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 sexual penetration and sexual intercourse with minors and the Hofsheier decision, and then consider the latter's applicability to the current case.

The Legislature has imposed a mandatory sex offender registration requirement on the sexual penetration with a foreign object offense defined in section 289 subdivision (h), but has imposed only a discretionary registration requirement on the voluntary sexual intercourse offenses defined in section 261.5. Section 289, subdivision (h) defines the offense of sexual penetration with certain specified minors. The minors specified in section 289 include: (1) minors under age 14, when the defendant is at least 10 years older than the minor (§ 289, subd. (j)), (2) minors under age 16, when the defendant is over age 21 (§ 289, subd. (i)) and (3) minors under age 18. (§ 289, subd. (h).) Section 290 imposes a mandatory sex offender registration requirement on section 289 offenses. (§ 290, subd. (c).)

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. (c); see Hofsheier, supra, 37 Cal.4th at p. 1197.) Similar to section 289, 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)).

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. (c); Hofsheier, supra, 37 Cal.4th at p. 1197.) Under section 290.006'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. (§ 290.006; 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.)

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.)

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.)

Here, the Attorney General concedes the basis of the equal protection claim is that two groups of offenders both of whom committed voluntary sex crimes against minors are being treated differently, based solely on whether they committed sexual penetration 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 digital penetration as opposed to voluntary sexual intercourse with minors.

As in Hofsheier, the only significant difference between a defendant convicted under section 289, subdivision (h) as opposed to a defendant convicted under section 261.5, subdivision (d) is that the former engaged in sexual penetration 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 minors. There has been no showing that offenders who engage in digital penetration with minors 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 minors does not provide sufficient protection against digital penetration offenders involved with the same age group; the pregnancy-related concerns potentially applicable to sexual intercourse with minors are relevant to digital penetration with this age group given that offenders may engage in both types of sexual behavior; and the mandatory registration requirement imposed on digital penetration offenders, but not sexual intercourse offenders, involved with minors 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 digital penetration with a minor under section 289, subdivision (h) but not for a defendant convicted of voluntary sexual intercourse with the same age group under section 261.5, subdivision (c) violates the constitutional right to equal protection of the laws.

Ramsey contends, "if the trial court had exercised its discretion to impose the registration requirement that it would have been an abuse of this discretion because [his] conduct did not suggest a high risk of recidivism." To require registration under section 290, "the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (Hofsheier, supra, 37 Cal.4th at p. 1197.)

Here, the trial court clearly manifested its view that even if registration was not mandatory, it would exercise its discretion to impose registration. The trial court relied on the psychologist's statement and further stated, "[T]he defendant, when all this happened, was just driving down the road. . . . and it wasn't as if these people had met in some situation that didn't obligate the defendant to do much work. It wasn't like they were at a ball game or at a party or they were at some kind of casual event. This is a situation where literally the defendant was driving down the road and the victim was walking down the street. And the steps that . . . the defendant, had to engage in to come in contact with her, to engage her into the degree that he did, to convince her to be with him the way she was, to do all the things he did had some sophistication, planning and, frankly, a lot more than a casual meeting. That itself has some kind of predatory overtones or undertones to it that concern this court. [¶] And I think that, coupled with the psychological report and the comment I cited, is sufficient to support the decision that had I gotten to the discretionary level, I would have imposed it." (Emphasis added.) Ramsey has not proven that the trial court's ruling exhibited manifest abuse, or was palpably arbitrary, capricious and patently absurd; therefore, we do not find any abuse of discretion.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HALLER, Acting P. J., AARON, J.

The Attorney General states in the reply brief, "[Ramsey's] guilty plea did not include any factual basis for concluding that he performed this sex act against the victim's will." In that regard, we use the term "voluntary" to describe the minor's participation in the act and to indicate the absence of various statutory aggravating circumstances, as stated in People v. Hofsheier (2006) 37 Cal.4th 1185, 1193, fn. 2 (Hofsheier).


Summaries of

People v. Ramsey

California Court of Appeals, Fourth District, First Division
Jul 21, 2008
No. D051060 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Ramsey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GREGORY CHRISTOPHER RAMSEY…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 21, 2008

Citations

No. D051060 (Cal. Ct. App. Jul. 21, 2008)