Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F15071
McAdams, J.
Defendant appeals from the sentence imposed following his plea of nolo contendere to two counts of lewd acts upon a 15-year-old child at least 10 years younger than himself in violation of Penal Code section 288, subdivision (c)(1). Pursuant to a negotiated disposition, two counts of forcible rape (§ 261, subd. (a)(2)) were dismissed and defendant was sentenced to concurrent one-year terms in state prison. At the plea hearing, the parties submitted to the court for decision the question whether defendant must register as a lifetime sex offender pursuant to section 290. At sentencing, the court concluded that mandatory registration was barred on equal protection grounds by People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). However, the court exercised its discretion to impose a registration requirement on defendant pursuant to section 290.006.
Unless otherwise indicated all further statutory references are to the Penal Code.
On appeal, defendant argues that the trial court erred by imposing the lifetime registration requirement without stating its reasons for doing so. In a supplemental opening brief, he also argues that if counsel forfeited defendant’s right to argue the sentencing error on appeal by his failure to object at sentencing to the court’s failure to state reasons, then his trial attorney rendered ineffective assistance of counsel. Finally, in a second supplemental opening brief, defendant argues that the imposition of discretionary sex offender registration on him based upon judicial rather than jury fact finding violates his Sixth Amendment right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.
STATEMENT OF FACTS
The historical facts are not relevant to our resolution of the issues presented, and may be briefly summarized as follows. In late February or early March 2007, and on March 17, 2007, defendant engaged in sexual intercourse with K., a minor. At the time, defendant was 38 years old and the minor was 15 years old. At police direction, K. placed two pretext calls to defendant in which he made admissions. According to K., the acts occurred against her will, but defendant could not hear her say “no” because her face was in the pillow.
DISCUSSION
Defendant pleaded no contest to violations of section 288, subdivision (c)(1), which proscribes any lewd or lascivious act, including sexual intercourse and oral copulation, upon a 14- or 15-year-old child, with the intent to arouse the child or the perpetrator, when the perpetrator is 10 or more years older than the child. Section 290 requires that any person convicted of violating sections 288 and 288a, among others, must register as a sex offender for the rest of his or her life. In Hofsheier, a 22-year-old man was convicted of violating section 288a for an act of nonforcible oral copulation on a 16-year-old girl and was required to register as a sex offender. He mounted an equal protection challenge to lifetime sex offender registration on the grounds that a similarly situated person convicted of violating section 261.5 for engaging in nonforcible sexual intercourse is not required to register as a sex offender. Our Supreme Court agreed, holding that “the statutory distinction in section 290 requiring mandatory lifetime registration of all persons, who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse [under section 261.5] with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions.” (Hofsheier, supra, 37 Cal.4th at p. 1207.)
Section 290 provides in relevant part: “(a) Sections 290 to 290.023, inclusive, shall be known and may be cited as the Sex Offender Registration Act. … [¶] (b) Every person described in subdivision (c), for the rest of his or her life while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register…. [¶] (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section … 288, 288a….”
In the proceedings below, defendant persuaded the trial court that Hofsheier’s holding extended to persons like him who suffered convictions under section 288, subdivision (c)(1) and therefore barred mandatory sex offender registration in his case. Thus, the trial court considered whether defendant qualified for lifetime sex offender registration pursuant to the discretionary provisions of section 290.006 (formerly § 290, subd. (a)(2)(e)). That section 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.” In imposing the requirement here, the trial court stated only: “[I] find, under the discretionary provisions, that the two crimes were committed for the purpose of sexual gratification, and I’ll impose the requirement that you register under the provisions of [section] 290 under that statute.”
The Court stated: “Having considered the arguments raised by counsel, I find that it would violate equal protection … to make the mandatory provisions of the 290 registration statute applicable to Mr. Standish….”
At the time defendant committed his crimes, in February and March of 2007, the statutory provision currently codified as section 290.006 was included in section 290 as subdivision (a)(2)(E). (Stats. 2006, c. 337 (S.B. 1128), § 11, eff. Sept. 20, 2006.) The language of both codifications is identical. For ease of reference, we shall refer to the provision as section 290.006.
Prior to imposing sentence, the trial court indicated that it intended to “determine that Mr. Standish should be required to register under the discretionary provision under my belief that the crimes were committed for sexual gratification.” Defense counsel responded: “Your Honor, obviously, the Court has heard about the issue. I would submit it on the testimony that we’ve heard, with an objection, obviously, to registration in this case.” The district attorney stated that “the People take the position that registration is appropriate both as a mandatory and discretionary act.”
Defendant bases his argument that the court’s statement of reasons did not comply with the statute on the following language in Hofsheier: “[T]o implement the requirements of section [290.006], 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.)
The Attorney General takes the position that even if the trial court’s statement of reasons failed to comply with section 290.006, we must affirm the registration order because sex offender registration was mandatory, Hofsheier notwithstanding. We agree with this contention for the following reasons.
The Attorney General raises this objection pursuant to section 1252, which provides in relevant part: “On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General.”
In People v. Anderson (2008) 168 Cal.App.4th 135 (Anderson) (review denied), this Court recently declined to extend Hofsheier’s holding to persons like defendant here whose victims are 14 or 15 years old and who are at least 10 older than their victims, in violation of section 288, subdivision (c)(1). As we explained in Anderson: “The holding in Hofsheier does not mandate a similar conclusion here. First, the Supreme Court’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.) [¶] [T]he 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, subd. (b)(1)) is both voluntary and the victim is 16 or 17 years old. As the court explained: ‘In its present form, section 288a provides a graduated scale of punishment depending on the age of the parties and the presence or absence of force or other coercion.... Although section 288a[, subdivision] (b)(1) applies to all acts of oral copulation with a person under the age of 18, other provisions provide for greater punishment for involuntary acts and acts involving younger victims. Thus, section 288a, subdivision (b)(2), provides that a person over 21 years of age who engages in oral copulation with someone younger than 16 years of age is guilty of a felony, and subdivision (c)(1) provides for still greater punishment—three to eight years’ imprisonment—for anyone who engages in oral copulation with someone under the age of 14 who is more than 10 years younger than the defendant. Other subdivisions specify imprisonment of three to eight years for forcible or involuntary oral copulation. (§ 288a, subds. (c)(2) & (3), (f).) And section 288 provides that any lewd or lascivious act (including oral copulation) with a child under the age of 14 is a felony punishable by three to eight years’ imprisonment. Consequently, section 288a[, subdivision] (b)(1) functions as the primary offense (as opposed to being a lesser included offense) in only two instances: (1) when, as here, the act of oral copulation is voluntary and the victim is 16 or 17 years old; and (2) when the act is voluntary, the victim is 14 or 15 years old, and the perpetrator is not over 21 years old. We are concerned here with the validity of the mandatory registration requirement for the first category — voluntary acts of oral copulation when the victim is 16 or 17 years of age.’ (Hofsheier, supra, 37 Cal.4th at pp. 1194-1195, italics added.) [¶] 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. An adult who is at least 10 years older than the victim who commits a sex offense of oral copulation on a 14- or 15-year-old minor victim may be charged with a violation of section 288(c)(1), just as defendant was charged in this case. Defendant’s group, contrary to his argument here, is not similarly situated with those convicted of voluntary copulation of a 16- or 17-year-old victim in violation of section 288a, subdivision (b)(1). Defendant’s equal protection challenge thus fails because he cannot establish that he, by virtue of his section 288(c)(1) conviction and the mandatory registration resulting therefrom, is subjected to unequal treatment because there is a similarly situated group for which no such mandatory registration is a consequence of the sex offense conviction.” (Anderson, at pp.141-143.)
Here, as in Anderson, our conclusion that defendant was subject to the mandatory registration requirement of section 290 is supported by the reasoning and holding in People v. Manchel (2008) 163 Cal.App.4th 1108 (review denied) (Manchel), where the defendant orally copulated a 15-year-old girl and was convicted of violating section 288a, subdivision (b)(2). Relying on Hofsheier, the defendant challenged the court’s order mandating his registration as a sex offender pursuant to section 290. (Manchel, at p. 1110.) The defendant was originally charged with committing a lewd act on a 14- or 15-year-old minor more than 10 years younger than he in violation of section 288, subdivision (c)(1), the same offense at issue here and in Anderson. (Manchel, at pp. 1110-1111.) As we explained in Anderson: “The [Manchel] court distinguished the case from Hofsheier on the bases that the defendant’s victim was 15 (not 16, as in Hofsheier), and the defendant was convicted under section 288a, subdivision (b)(2) (rather than under § 288a, subd. (b)(1)). (Manchel, at p. 1112.) The application of section 288 [also] impacted the Manchel court’s equal protection analysis: ‘Both oral copulation and sexual intercourse are lewd or lascivious acts when committed by individuals of the ages and age disparities set forth in section 288. [Citations.]... If the child is 14 or 15 years, section 288 comes into play only if the perpetrator is at least 10 years older than the victim. In that event, section 288(c)(1) applies’.... [¶] The Manchel court concluded that the fact that all offenders convicted under section 288 were subjected to mandatory registration ‘fundamentally alters the equal protection analysis here.’ (Manchel, supra, 163 Cal.App.4th at p. 1114.) It held therefore that the reasoning of Hofsheier could not be employed to support the defendant’s constitutional challenge to the registration requirement: ‘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 act constituted a lewd and lascivious act under section 288[(c)(1)] and subjected Manchel to mandatory lifetime registration as a sex offender. (§§ 288 [(c)(1)]; 290, subd. (c).) In other words, in contrast to Hofsheier, supra, 37 Cal.4th 1185, here the nature of the sexual act was not determinative of whether Manchel was subject to mandatory registration: whether sexual intercourse or oral copulation took place, his conduct subjected him to mandatory registration under the Penal Code.’ (Manchel, supra, at p. 1114.)” (Anderson, supra, 168 Cal.App.4th 135 at p. 144.)
The Manchel court declined to follow People v. Garcia (2008) 161 Cal.App.4th 475, in which the defendant was convicted of oral copulation with a person under the age of 16, in violation of section 288, subdivision (b)(1), the defendant was more than 10 years older than the victim, and the Court of Appeal found that Hofsheier applied. The Manchel court stated that the case before it “squarely presents an issue that does not appear to have been raised before the court in Garcia, supra, 161 Cal.App.4th 475: the effect of section 288 on the equal protection analysis.” (Manchel, supra, 163 Cal.App.4th at p. 1113.) As discussed above, the effect of section 288 on the equal protection analysis, for the Manchel court, was determinative of the outcome. Defendant argues, however, that Manchel is poorly reasoned, and notes that the Court of Appeal in People v. Hernandez (2008) 166 Cal.App.4th 641(Hernandez), at page 651, footnote 10, implicitly criticized the Manchel court’s discussion of Garcia.
In Hernandez, the defendant was convicted of oral copulation with a person under the age of 16, in violation of section 288a, subdivision (b)(2). The Hernandez court held that Hofsheier precluded the mandatory imposition of sex offender registration in that case. However, the Hernandez court also concluded that it “need not decide whether or not we agree with Manchel’s analysis, because, as in Hofsheier, appellant’s offense here does not fall within section 288, as his victim was 14 years old, therefore not within section 288, subdivision (a), and he was not more than 10 years older than her, therefore not within section 288, subdivision (c)(1). Consequently, the only factor that determined that he was subject to mandatory registration was that his offense was oral copulation and not sexual intercourse.” (Hernandez, supra, 166 Cal.App.4th at p. 651.) Here, defendant engaged in acts of sexual intercourse, not oral copulation, he was more than 10 years older than the victim, and his conduct violated section 288. Thus, Hernandez does not further defendant’s equal protection argument, and we decline to reconsider our decision in Anderson.
Because we conclude that defendant was subject to the mandatory sex offender registration requirement of section 290, we need not determine whether the court’s statement of reasons satisfied section 290.006’s provisions for the discretionary imposition of sex offender registration. In view of our conclusion, we also need not and do not reach defendant’s ineffective assistance of counsel claim.
In addition, because sex offender registration is mandatory for any person convicted of violating section 288, subdivision (c)(1), sex registration is part and parcel of the maximum statutory punishment for that offense, and its imposition does not increase the penalty for that offense beyond the statutory minimum. Thus, Apprendi and Blakely do not apply here. We therefore affirm the trial court’s order imposing a registration requirement on defendant.
In his second supplemental opening brief, defendant relied upon the then-published opinion in People v. Mosley, S169411/G038379, filed on November 19, 2008 (formerly at 168 Cal.App.4th 512). However, the California Supreme Court granted review in Mosley on March 18, 2009.
CONCLUSION
Contrary to the trial court’s determination, Hofsheier does not preclude mandatory imposition of a sex offender registration requirement on defendant. Therefore, we uphold the trial court’s order imposing the registration requirement on defendant, and reject defendant’s claim that his federal constitutional right to jury findings under Apprendi and Blakely were violated by imposition of the registration requirement on the basis of judicial factfinding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.