Opinion
E067274
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HENRY STEELE, Defendant and Appellant.
Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FELRS1401702) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant William Henry Steele pleaded no contest to committing a lewd or lascivious act on his daughter, who was under the age of 14 at the time, in violation of Penal Code section 288. Because of that conviction, defendant is under a lifetime requirement that he register as a convicted sex offender. (Pen. Code, § 290, subd. (c).) Decades later, defendant petitioned the superior court for a certificate of rehabilitation and pardon, so that he will no longer be required to register.
The trial court denied defendant's petition because the statute that governs the relief defendant seeks—Penal Code section 4852.01—specifically excludes persons convicted under Penal Code section 288. On appeal, defendant argues Penal Code section 4852.01 violates his right to equal protection under the law because similarly situated sex offenders convicted under Penal Code sections 288a, subdivision (d)(2), and 286, subdivision (d)(2), are not similarly precluded from seeking a certificate of rehabilitation and pardon. We conclude defendant is not similarly situated with persons convicted under those other statutes and, even if he were, there is a rational basis for distinguishing between defendant and sex offenders convicted under those other statutes. Therefore, we affirm the order denying defendant's petition.
I.
PROCEDURAL BACKGROUND
In 1981, defendant pleaded no contest to committing a lewd or lascivious act on his daughter, a child under 14 years of age, in violation of Penal Code former section 288 (current § 288, subd. (a), hereafter § 288(a)). Thirty-three years later, defendant petitioned the superior court for a certificate of rehabilitation and pardon under section 4852.01.
All additional statutory references are to the Penal Code.
The court directed the district attorney to investigate and submit a report on defendant's eligibility. After receiving the district attorney's report, the court concluded defendant was not eligible for relief under section 4852.01 and denied his petition. The court informed defendant he could nonetheless seek a pardon directly from the Governor pursuant to section 4852.01, subdivision (d).
Defendant timely appealed.
II.
DISCUSSION
Defendant concedes, as he must, that on the face of section 4852.01, he is ineligible for a certificate of rehabilitation and pardon because he pleaded no contest to violating section 288(a). Section 4852.01 provides, in relevant part: "A person convicted of a felony who is committed to a state prison or other institution or agency, including commitment to a county jail pursuant to subdivision (h) of Section 1170, may file a petition for a certificate of rehabilitation and pardon pursuant to the provisions of this chapter. [¶] . . . [¶] This chapter does not apply to persons . . . convicted of a violation of . . . Section 288 . . . ." (§ 4852.01, subds. (a), (c).) Nonetheless, on appeal, defendant argues section 4852.01, subdivision (c), violates his right to equal protection under the law under the United States and California constitutions because similarly situated persons convicted of forcible oral copulation in concert of a minor under the age of 14 (§ 288a, subd. (d)(2), hereafter § 288a(d)(2)), or forcible sodomy in concert of a minor under the age of 14 (§ 286, subd. (d)(2), hereafter § 286(d)(2)), are not likewise ineligible for relief under section 4852.01. We are not persuaded.
Defendant attached to his petition the subsequently depublished and repudiated majority opinion in Tirey II (he conveniently omitted the dissenting opinion), which held section 4852.01 violated the equal protection rights of persons convicted of section 288(a) because similarly situated defendants convicted of section 288.7 were not likewise ineligible for relief. (See People v. Tirey (2015) 242 Cal.App.4th 1255 (Tirey III).) Because the record on appeal does not contain a reporter's transcript, and neither defendant nor the People submitted points and authorities in support of or in opposition to defendant's petition, it is unclear on this record whether defendant made the same equal protection argument in the trial court that he makes here, viz, that section 4852.01 violates his right to equal protection because persons convicted of sections 288a(d)(2) and 286(d)(2) are not likewise ineligible for a certificate of rehabilitation and pardon. --------
In a run-of-the-mill case involving a petition for rehabilitation and pardon under section 4852.01, the trial court's decision "whether to grant relief based on the evidence is discretionary in nature" (People v. Ansell (2001) 25 Cal.4th 868, 887) and "will not be disturbed on appeal unless there is a clear showing of abuse of discretion" (People v. Failla (2006) 140 Cal.App.4th 1514, 1519). However, defendant's challenge to the constitutionality of section 4852.01 is a question of law that we review de novo. (People v. Jones (2016) 1 Cal.App.5th 221, 227-228.)
Persons convicted of violating section 288(a) are not similarly situated with persons convicted of violating sections 288a(d)(2) and 286(d)(2). On the one hand, section 288(a) punishes lewd or lascivious acts by any person on a child under 14 years of age done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288(a).) On the other hand, section 288a(d)(2) punishes any person who commits an act of oral copulation on a child under the age of 14, when the act is accomplished by means of force or fear, and section 286(d)(2) punishes "[a]ny person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy upon a victim who is under 14 years of age, when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person . . . ."
"'"The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment."' [Citation.] 'The 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.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
Defendant's equal protection claim fails the initial inquiry because he is not similarly situated to a person who violates either section 288a(d)(2) or section 286(d)(2). Section 288(a) contains a specific intent requirement—it punishes an act done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288(a).) Sections 288a(d)(2) and 286(d)(2) are both general intent crimes. (People v. Thornton (1974) 11 Cal.3d 738, 765 [§§ 288a & 286 are general intent crimes], overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The higher mental state required for a conviction of a specific intent crime is "a distinction that is meaningful" in determining whether that defendant is similarly situated to a defendant convicted of a general intent crime. (See People v. Cavallaro (2009) 178 Cal.App.4th 103, 114 [discussing equal protection related to §§ 288 & 261.5].) Accordingly, because section 288(a) contains a specific intent requirement, defendant is not similarly situated to offenders convicted under either section 288a(d)(2) or section 286(d)(2), neither of which contains a specific intent requirement. (See People v. Singh (2011) 198 Cal.App.4th 364, 371 [a § 288(a) offender "is not similarly situated to offenders convicted under section 261.5 . . . because [the latter] provision[] . . . [is a] general intent offense[]"]; see also People v. Alvarado (2010) 187 Cal.App.4th 72, 79 [§ 288(a) offenders are not similarly situated to § 261.5 offenders because "[a] section 261.5 offense . . . concerns the general intent offense of committing unlawful sexual intercourse"].)
We also note there are additional points of dissimilarity between these statutes. Section 288(a) differs from section 288a(d)(2) because, unlike section 288a(d)(2), it need not be "accomplished . . . by means of force or fear." Similarly, section 288(a) differs from section 286(d)(2) because, unlike section 286(d)(2), it need not be committed "while voluntarily acting in concert with another person, either personally or aiding and abetting that other person."
For the foregoing reasons, we conclude section 288(a) offenders are not sufficiently similar to section 288a(d)(2) or section 286(d)(2) offenders "to merit application of some level of scrutiny to determine whether distinctions between the . . . groups justify the unequal treatment." (People v. Nguyen (1997) 54 Cal.App.4th 705, 715.) Accordingly, defendant's equal protection challenge fails.
Even if we were to conclude persons convicted of violating section 288(a) are similarly situated with persons convicted of violating section 288a(d)(2) and section 286(d)(2), we would still find no equal protection violation. "Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose."' [Citation.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in "'rational speculation'" as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record."' [Citation.] To mount a successful rational basis challenge, a party must '"negative every conceivable basis"' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its '"wisdom, fairness, or logic."' [Citations.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
As the People creatively try to explain, there is a rational basis for disqualifying solo child sexual abusers from obtaining a certificate of rehabilitation while allowing that possibility for those who act in concert to commit child sex crimes. For example, under sections 288a(d)(2) and 286(d)(2), a person can be convicted for merely aiding and abetting forcible oral copulation or forcible sodomy of a child under 14. (§§ 286(d)(2), 288a(d)(2).) The Legislature could have rationally determined that such aiders and abettors may be less morally (though not criminally) culpable, less likely to reoffend, and more amenable to rehabilitation.
"Finally, '[w]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends"' [citation], or 'because it may be "to some extent both underinclusive and overinclusive."' [Citations.]" (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.) People may do things acting together that they would not do alone. Consequently, the Legislature could have rationally concluded that a person convicted of a crime, where he acted in concert with another, may be more likely to truly rehabilitate and less likely to reoffend than someone who commits a similar crime acting alone.
Therefore, because defendant cannot negate every conceivable basis that might support the Legislature's decision to bar section 288(a) offenders but not section 288a(d)(2) or section 286(d)(2) offenders from obtaining a certificate of rehabilitation, his equal protection claim fails.
III.
DISPOSITION
The order denying defendant's petition for certificate of rehabilitation and pardon is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.