Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6205081
SCOTLAND, P. J.
This appeal challenges the imposition of mandatory lifetime registration as a sex offender.
In separate incidents while working as a driving instructor, 22-year-old defendant Miles Edgar Stark initiated explicit sexual conversations which made a student feel uncomfortable. On two such occasions, the driving student was a 16-year-old girl. The student in the other incident was a 15-year-old girl. Neither girl told defendant that the conversations made them feel uncomfortable. The 16-year-old student answered his sexual questions without protest; the other simply changed the subject. However, both complained to others about feeling uncomfortable and offended. The 16-year-old girl then hid a tape recorder in her purse during a driving lesson and used it to record defendant’s sexual comments. At the end of the lesson, she held up the recorder so that he could see it. Defendant immediately went to the owners of the driving school and reported that he had engaged in inappropriate sexual conversation with the student.
A jury convicted defendant of three misdemeanors of annoying or molesting a child under the age of 18. (Pen. Code, § 647.6; further section references are to the Penal Code unless otherwise specified.)
Defendant was also charged with two counts of sexually touching an intimate part of the 16-year-old girl, one count of causing her to masturbate him, and one count of soliciting her to commit a lewd act in a public place. But the jury found him not guilty of those charges and not guilty of lesser offenses, including simple battery.
The trial court placed defendant on probation and ordered him to register as a sex offender for the rest of his life. (§ 290.) The court found the registration requirement to be mandatory, but commented that, if it had the discretion otherwise, it would not order lifetime sex offender registration.
On appeal, defendant contends that requiring him to register as a sex offender violates his right to equal protection of laws because if a 22-year-old were convicted of consensual sexual intercourse or oral copulation with a minor 15 or 16 years old, there would be no mandatory sex offender registration requirement. He also asserts the requirement constitutes cruel and unusual punishment under the circumstances of this case.
We shall reverse the sex offender registration requirement imposed pursuant to section 290. As we will explain, the victims did not consent in the legal sense to defendant’s annoying sexual comments; but, they did not openly object--thus giving the appearance that they consented to the conduct. Under the circumstances of this case, it violates equal protection of laws to impose a mandatory sex offender registration requirement for sexual conversation that defendant believed was consensual, when such a requirement would not be mandatory if he did not engage in sexual banter, but had sexual intercourse or oral copulation with minors between the ages of 15 and 16 in circumstances that would reasonably lead him to believe the conduct was consensual. (See People v. Hofsheier (2006) 37 Cal.4th 1185.)
Because the trial court believed that it was required to impose lifetime sex offender registration pursuant to section 290, and thus did not consider whether defendant is subject to such registration pursuant to section 290.006, we will remand the matter to the trial court with directions to exercise its discretion whether to impose lifetime sex offender registration pursuant to section 290.006.
FACTS
The People’s Case
Defendant was a 22-year-old driving instructor employed by a traffic school. He provided behind-the-wheel driving instruction to high school students and adults seeking to obtain their drivers’ licenses. The training consisted of three two-hour driving sessions. Pursuant to traffic school policy, defendant would pick up the first student at an arranged location and provide two hours of driving instruction. The first student would drive to the location of the second student, who would then drop off the first student before embarking on a two-hour driving lesson with defendant.
In October and November 2004, defendant provided driving instruction to 16-year-old S.B. The first driving lesson focused on basic car control and was “quiet” and “formal.” The second lesson began much like the first. Finding defendant’s quiet formality to be awkward and uncomfortable, S.B. decided to engage him in conversation. The conversation began innocently enough, covering the topics of defendant’s job, where they each went to school, whether they played any sports, and the kinds of people with whom they associated. At some point during the drive, defendant moved the conversation into the realm of sex. He began by asking S.B. if she had ever been in any trouble and if she was a virgin. When she said she was not a virgin, defendant asked about the sexual positions she liked, naming “[m]issionary” and “[d]oggie style” as possibilities. Such sexual dialogue went on for “quite awhile.” While S.B. answered defendant’s questions without protest, the conversation made her feel uncomfortable.
S.B. returned for a second session, after which she picked up the next student and got into the back seat of the car behind the driver’s seat. Defendant did not continue the sexual banter with the new student in the car. S.B. testified, however, defendant reached behind the driver’s seat to point out an accident which had occurred, then “let his hand” drop to her leg and started rubbing her vagina outside of her pants until she pushed his hand away. When he tried to put his hand down her pants, S.B. again pushed defendant’s hand away two or three times, but she remained silent because she did not want to frighten the new driver. When they reached the driving school, S.B.’s mother was waiting. Defendant spoke briefly to her about S.B.’s driving skills and then asked S.B. to come into the office to pick up some paperwork. After “ruffling through some papers” behind a desk, defendant grabbed S.B.’s hand and pulled her into a closet where he “began kissing” her and “tried to put his hands down [her] pants again.” S.B. “pushed his hand away before he got very far down [her] pants,” “said ‘This isn’t happening,’ [then] reached for [the] door and walked out.” Uncomfortable and confused, S.B. did not tell her mother about the events of the driving lesson. Instead, she decided to bring a tape recorder to her next driving lesson with defendant. (The jury found him not guilty of the accusations of non consensual sexual touchings, and not guilty of the lesser offense of battery.)
The third lesson began at the driving school. S.B. brought a tape recorder hidden in her purse. This lesson also began with awkward silence. While S.B. did not recall whether she or defendant began the sexual banter during this lesson, she explained to the jury that her plan was to flirt with defendant and engage him in sexual dialogue to capture it on tape. Thus, S.B. willingly participated in the banter, pretending to be interested. At defendant’s direction, she stopped the car in a high school parking lot. Defendant filled out some paperwork, then placed his hand on her thigh for a couple seconds before sliding it up her leg and rubbing her crotch outside of her pants. Uncomfortable and frustrated that this touching would not be caught on the tape recorder, S.B. asked him to stop, started the car, and told him it was time to go. Defendant apologized, removed his hand from her leg, and continued the lesson. When S.B. reached the road again, defendant again placed his hand on her thigh and began inching toward her crotch. S.B. “told him that it was really distracting” and she “couldn’t concentrate on the road.” Defendant again “apologized and said he would stop.” He then instructed S.B. to pull into the parking lot of a housing development so she could practice three-point turns. When she parked the car, he again placed his hand between her legs and rubbed her crotch outside her pants for three to four seconds without protest before she pushed his hand away. He then grabbed her wrist and pulled her hand over to his crotch, rubbing her hand on his penis outside of his pants for several seconds. Defendant then unbuckled his belt, pushed S.B.’s hand inside his pants, and told her to grab his penis. After initially trying to pull away, S.B. grabbed defendant’s penis as instructed and held it in her hand for a couple seconds before defendant released her wrist. She then pulled her hand away, started the car, and drove out of the parking space, stopping briefly so he could pull up his pants. When he asked her if she “wanted to finish up,” she interpreted this as a request for sex, which she declined. Defendant then instructed S.B. on three-point turns. No further sexual advances were made during the remainder of the lesson. (The jury found defendant not guilty of the accusations of non consensual sexual touchings, and not guilty of the lesser offense of battery.)
When S.B. was dropped off at the driving school after this third lesson, she got into her mother’s car and held up the tape recorder so defendant could see it. Defendant immediately went to one of the owners of the traffic school and reported he had an inappropriate sexual conversation with S.B. during their driving lesson. He was reprimanded.
Nothing of evidentiary value was recorded.
After telling her father and stepmother about defendant’s conduct during the driving lessons, S.B. went to the police department to report what he had done.
In January 2005, defendant engaged another of his driving students, 15-year-old A.D., in explicit sexual conversation. The first lesson was uneventful. However, during the second driving lesson, he boastfully recounted his sexual exploits and asked A.D. to share some stories of hers. A.D. felt uncomfortable, so she changed the subject. A brief conversation on the new topic was quickly redirected by defendant to his sexual history. After this driving lesson, A.D. discussed defendant’s behavior in a phone conversation with a friend; her mother overheard the conversation, complained to the driving school, and another instructor was assigned to her third lesson. Following this complaint, defendant resigned as a driving instructor.
The Defense Case
Defendant confirmed that the first lesson with S.B. was all business, and that the second lesson began in the same fashion. When, during the second lesson, S.B. told defendant she was writing a report for school and wanted to ask him some questions, he agreed. The questions started innocently enough, but eventually became sexual in nature. S.B. asked defendant to describe certain sexual positions and asked which he preferred. She also told him about a sexual encounter she had with a boyfriend, recounted an incident where she was caught playing strip poker at school, and mentioned brightly colored wristbands that she and other high school students wore to school, the colors of which indicated certain sexual acts they had performed.
At the end of the second lesson, a new student was picked up and S.B. got into the back seat. Defendant confirmed that, when they passed an accident site, he pointed it out and then put his hand on S.B.’s leg as she sat in the back seat. However, defendant testified he did not touch her crotch or any other part of her body. He rubbed her knee for roughly a minute without S.B. protesting or pushing his hand away, indicating to defendant that S.B. was not bothered by his actions. Defendant also confirmed that when they reached the driving school to drop S.B. off, he invited her into the office to get a form that she needed to fill out. Defendant admitted giving S.B. a hug as he said goodbye, but denied trying to kiss her or touch her anywhere else on her body.
Defendant’s version of the third driving lesson was also markedly different than S.B.’s account. He confirmed that more sexual conversation took place during this lesson, and that S.B. again initiated the banter. The conversation continued in the high school parking lot, where defendant again put his hand on S.B.’s knee. According to him, his hand was on her knee for one to two minutes while they talked and listened to the radio; S.B. neither protested nor attempted to push his hand away. Defendant’s touch did not stray to any other part of her body. After leaving the high school, S.B. and defendant ended up in a clubhouse parking lot. The sexual conversation continued. He returned his hand to S.B.’s knee for two to three minutes while they talked about sexual positions, but did not touch her anywhere else. S.B.’s hand was also on defendant’s thigh as they talked. She rubbed the inside of defendant’s thigh and then moved her hand to his crotch. Defendant unbuttoned his pants and placed his hand over S.B.’s hand as she rubbed him outside his boxers, but did not grab her wrist and force her to do so. Defendant did not remove his penis from his pants, nor did S.B. ever grab his penis. Eventually, they decided to end what defendant believed to be a consensual encounter, and they picked up the next driving student.
As to A.D., defendant admitted having an inappropriate sexual conversation with her. According to him, A.D. began the conversation by asking whether he had sex with his girlfriend. He eventually ended the conversation by telling A.D. that he was uncomfortable, but admitted he “let it go a little bit too far.” Defendant described the conversation as “childish” and “[i]mmature,” and explained he “felt bad” that he was not able to end the conversation immediately.
Convicted of three counts of misdemeanor annoying or molesting a child under 18, but acquitted of non consensual touchings and of solicitation to commit a lewd act in a public place, defendant was ordered to register for life as a sex offender.
He appealed to the appellate division of the Placer County Superior Court, which certified the case for transfer to this court pursuant to California Rules of Court, rule 8.1005, subd. (a)(1). We accepted the transfer.
DISCUSSION
Defendant was convicted of violating subdivision (a)(1) of section 647.6, which states: “Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.”
The “words ‘annoy’ and ‘molest’... are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 289.) “‘Annoy’ and ‘molest’ ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation. The forbidden annoyance or molestation is not concerned with the child’s state of mind, but rather refers to the defendant’s objectionable acts that constitute the offense. [Citation.] [¶] Accordingly, to determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed. [Citations.]” (Id. at p. 290, citing People v. Kongs (1994) 30 Cal.App.4th 1741, 1750 [section 647.6 contemplates an objective test for annoyance or molestation].)
By finding defendant not guilty of allegations that he touched S.B. sexually without her consent, and that he was not guilty even of simple battery, the jury necessarily found the prosecutor failed to prove such non consensual touchings occurred. And by finding him not guilty of soliciting S.B. to commit a lewd act in public, the jury necessarily found the prosecutor failed to prove such conduct occurred.
It follows that the jury convicted defendant of annoying or molesting the victims, within the meaning of section 647.6, subdivision (a)(1), based solely on his annoying sexual comments to the victims, not his alleged non consensual touchings of S.B. Thus, in assessing his challenge to the mandatory sex offender registration requirement, we consider only his sexual comments that were annoying to the victims.
Defendant contends that imposition of mandatory lifetime registration as a sex offender based upon annoying sexual comments resulted in the denial of equal protection of the laws under the state and federal Constitutions. This is so, he argues, because a 22-year-old convicted of the more serious crimes of voluntary intercourse or voluntary oral copulation with a 15-year-old or a 16-year-old would not face mandatory sex offender registration.
His conclusion, he says, is compelled by the California Supreme Court holding in People v. Hofsheier, supra, 37 Cal.4th 1185 (hereafter Hofsheier), a case in which a 22-year-old man pled guilty to voluntary oral copulation with a 16-year-old girl (§ 288a) and was ordered to register as a sex offender pursuant to section 290. (Hofsheier, supra, at p. 1193.) On appeal, the man challenged the mandatory registration requirement as being a denial of the equal protection of laws because a 22-year-old man convicted of voluntary sexual intercourse with a 16-year-old girl (§ 261.5) would not face mandatory sex offender registration. (Hofsheier, supra, at pp. 1194-1195.) The Supreme Court agreed, holding “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 with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions.” (Id. at p. 1207.)
As Hofsheier explained, “‘[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’” (Hofsheier, supra, 37 Cal.4th at p. 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [we do not inquire “whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged’”].)
Hofsheier found that a person convicted of voluntary oral copulation with a minor 16 years or older, for which sex offender registration was mandatory, and a person convicted of voluntary sexual intercourse with a minor 16 years or older, for which sex offender registration is discretionary, “‘are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment’” because the “only difference between the two offenses is the nature of the sexual act.” (Hofsheier, supra, 37 Cal.4th at p. 1200.)
Finding no rational basis for concluding “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,” the court held mandatory sex offender registration for voluntary oral copulation is an unconstitutional violation of the equal protection of laws. (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207; see also People v. Hernandez (2008) 166 Cal.App.4th 641; People v. Garcia (2008) 161 Cal.App.4th 475; but see People v. Anderson (2008) 168 Cal.App.4th 135 ; People v. Manchel (2008) 163 Cal.App.4th 1108, 1115.)
Here, defendant was not convicted of a felony sex act with a minor; nor was he convicted of a misdemeanor involving a sex act with a minor. He was convicted of annoying a 16-year-old girl and a 15-year-old girl by engaging them in sexual conversation.
Thus, defendant’s crimes were less serious than voluntary sexual intercourse or voluntary oral copulation with such a minor. However, unlike the more serious crime in Hofsheier, the victims in this case did not consent in the legal sense to defendant’s annoying sexual comments. But they did not openly object--thus giving the appearance that they consented to the conversation. Since defendant believed the sexual conversation was consensual, the conduct was sufficiently similar to consensual sex acts to “merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment’” with respect to sex offender registration requirements. (See Hofsheier, supra, 37 Cal.4th at p. 1200.)
The People’s assertion that defendant’s crimes are “more appropriately compared to forcible sex offenses with teens” is unconvincing. While defendant’s crimes were serious, they are not akin to forcible rape, forcible oral copulation, and forcible sodomy. The fact that section 647.6 requires the mental state of an “abnormal sexual motivation” (People v. Lopez, supra, 19 Cal.4th at p. 290) does not truly distinguish defendant’s offenses from crimes of unlawful sexual intercourse and oral copulation with a minor -- our society accepts, without need for proof, that an adult who engages in sexual intercourse or oral copulation with a minor is motivated by an abnormal sexual interest. Stated another way, any interest an adult has in engaging in such acts with a minor is, ipso facto, an abnormal sexual interest.
In sum, we see no rational basis for requiring mandatory lifetime sex offender registration for a 22-year-old male convicted of annoying girls 15 and 16 years old by engaging them in sexual conversation to which they did not openly object, whereas such mandatory registration is not imposed on a 22-year-old male who engages in consensual sexual intercourse or oral copulation with girls of that age.
Consequently, the holding of Hofsheier compels us to conclude that the application of the mandatory sex offender registration requirement to defendant treated him differently than similarly situated offenders and deprived him of the equal protection of laws.
We thus turn to the appropriate remedy. Even though equal protection of laws precludes imposition of mandatory sex offender registration, section 290.006 provides the trial court with the discretion to order lifetime sex offender registration based on a conviction for a crime committed as a result of sexual compulsion or for purposes of sexual gratification. Thus, in Hofsheier, the Supreme Court remanded the matter to the trial court to permit it to exercise discretion under then-section 290, subdivision (a)(2)(E), now section 290.006, to require sex offender registration pursuant to that statute.
Here, however, the trial court explicitly said that if it was not compelled to impose the sex offender registration requirement, but had discretion whether to do so, it would not subject defendant to a lifetime sex offender registration requirement. On the other hand, the court did observe that, if it had the discretion to do so, it would impose a sex offender registration requirement for the “period of time while [defendant is] on formal probation,” namely July 26, 2007, to July 25, 2010. This the trial court could not do because the statutory scheme does not permit a court to impose such a limited term for sex offender registration. (§ 290.007.)
Although it seems to us that it is unlikely the trial court would exercise its discretion to impose lifetime sex offender registration pursuant to section 290.006 under the circumstances of this case, and it surely would not be an abuse of discretion for the court to decline to impose such a requirement on defendant, the parties agreed at oral argument in this court that the appropriate disposition is for us to remand this matter to the trial court for it (1) to determine whether defendant is subject to discretionary lifetime registration as a sex offender, i.e., “if the court finds... that [defendant] committed the offense[s] as a result of sexual compulsion or for purposes of sexual gratification” (§ 290.006) and, (2), if so, to exercise its discretion whether to impose lifetime sex offender registration pursuant to section 290.006.
Because it is likely the trial court will not order defendant to register as a sex offender for the rest of his life, we decline to issue an advisory opinion on defendant’s claim that, as applied to him, such a registration requirement would be unconstitutional cruel and unusual punishment. This is a question the trial court will address in exercising discretion pursuant to section 290.006.
DISPOSITION
The order requiring defendant to register as a sex offender is reversed. The matter is remanded to the trial court with directions to determine whether defendant is subject to registration pursuant to Penal Code section 290.006, and, if so, to exercise discretion whether to require registration as a sex offender for the rest of defendant’s life. In all other respects the judgment is affirmed.
We concur: RAYE, J., BUTZ, J.