Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCD212765
McINTYRE, J.
Petition for writ of habeas corpus after superior court dismissed charge for failing to register as sex offender but denied request to order defendant removed from sex offender registry. Frederick Maguire, Judge. Petition for writ of habeas corpus treated as petition for writ of mandate. Petition granted.
In this case we decide whether Joshua Williams, who pleaded guilty to carnal knowledge of a minor in violation of military law while serving in the Navy, is exempt from registration as a sex offender pursuant to Penal Code sections 290, subdivision (c) and 290.005 (undesignated statutory references are to the Penal Code), and therefore entitled to have his name removed from the Justice Department's sex offender registry. We conclude that based on Williams's plea, he was denied equal protection of the law in that persons convicted in California of the equivalent offense of unlawful sexual intercourse in violation of section 261.5 are not required to register. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier).) In reaching this conclusion, we focus on the offense of which Williams was convicted, not a hypothetical offense of which he could have been convicted based on the conduct underlying the charge. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht).) Accordingly, the trial court erred in denying Williams's request to have his name removed from the registry.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. In February 2003, while serving in the Navy, 19-year-old Williams pleaded guilty to one count of carnal knowledge of a minor pursuant to the Uniform Code of Military Justice (UCMJ), article 120. Williams stipulated to the factual basis for the plea, acknowledging he knew that the victim was 13-years old at the time of the offense. The plea did not result in any requirement to register as a sex offender.
Williams subsequently moved to California where the California Department of Justice Sex Offender Registration Unit deemed him a mandatory registrant. It considered Williams's conviction of carnal knowledge to be equivalent to a violation of section 288, subdivision (a), a lewd or lascivious act upon a child under the age of 14, and placed his name in the database of mandatory registrants.
Williams complied with the section 290 requirements by registering in August 2007. He was taken into custody on drug-related charges and released in March 2008. San Diego police arrested Williams a month later for failure to register upon his release from custody.
At the preliminary hearing on the charge of failure to register, Williams argued that he was not required to register because the elements of carnal knowledge were equivalent to those of section 261.5, an offense not subject to mandatory registration. The district attorney responded that based on the facts set forth in the stipulation, which amounted to a violation of section 288, subdivision (a), Williams was required to register. She emphasized to the court that "the defendant chose to have sex with someone 13 years of age. He chose the wrong victim. [¶]... [Y]ou just don't look at the statute because the statute doesn't determine dangerousness of a particular individual.... [¶] I would ask you to look at the totality of the picture that Department of Justice considered all of the underlying facts, all the documents used in a court of law.... It has gone through at least two levels of review." The court ruled that the offense Williams pled to "was effectively a Penal Code section 261.5" which did not require mandatory registration under California law. The court stated that "the code itself controls, not the conduct." It declined to bind Williams over "with great reluctance." At the same time, the court denied Williams's request for an order that he was not required to register, stating: "I'm finding, based on the evidence here, that there is not enough presented to me.... There could be more evidence out there than what's presented to me, but I'm not making that finding." Defense counsel asked whether Williams had to register when he left. The court responded that it would not give an advisory opinion.
In March 2009, police arrested Williams for alleged violations of probation granted in connection with his 2007 narcotics offenses. The court revoked his probation and he is currently confined at Avenal State Prison. Williams is scheduled for release in early 2010.
Williams filed a petition for writ of habeas corpus in San Diego Superior Court, requesting an order requiring the Department of Justice to remove his name from the data base of registered sex offenders. The court denied the petition in May 2009 on grounds Williams failed to provide any evidence to support it.
In July 2009, Williams filed his petition for writ of habeas corpus in this court. The Attorney General filed an informal response. We ordered appointment of counsel and more complete briefing followed issuance of the order to show cause.
DISCUSSION
We begin by addressing the Attorney General's challenge to Williams's standing to file a petition for habeas corpus relief in connection with the section 290 registration requirement. Because Williams is currently imprisoned on unrelated narcotics offenses, and the requirement of continued mandatory registration as a sex offender upon his release does not amount to constructive custody (In re Stier (2007) 152 Cal.App.4th 63, 81-82), we agree that habeas corpus is not the proper remedy. However, given the state of the record, and acknowledging the Attorney General's concession, we deem Williams's petition for writ of habeas corpus a petition for writ of mandate. (Escamilla v. Dept. of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511.) Mandamus lies to correct an abuse of discretion or compel the performance of a mandatory duty. (See, e.g., Cornell v. Superior Court (1959) 52 Cal.2d 99, 103-104 [court required to permit defendant's examination by hypnotist as part of his right to consultation with counsel]; People v. Beck (1994) 25 Cal.App.4th 1095, 1104-1105 [court required to return firearms unrelated to the current charges].) We therefore turn to the merits of Williams's claim that the court had a mandatory duty to remove his name from the sex offender registry.
Section 290.005, subdivision (a) provides that any person "convicted in any other court, including any... military court, of any offense that, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290" shall register in accordance with the Sex Offender Registration Act (§§ 290 - 290.023). Section 290, subdivision (c) requires registration for a person convicted of committing a lewd or lascivious act upon a child under the age of 14 (§ 288, subdivision (a)), but not for unlawful sexual intercourse (§ 261.5), commonly termed "statutory rape."
UCMJ, article 120, the offense of which Williams was convicted, reads in relevant part:
"(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person
"(1) who is not that person's spouse; and
"(2) who has not attained the age of sixteen years;
is guilty of carnal knowledge and shall be punished as a court-martial may direct." (Former 10 U.S.C.A. § 920(b).)
In similar language, section 261.5 reads in part:
"(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a 'minor' is a person under the age of 18 years and an 'adult' is a person who is at least 18 years of age.
"..
"(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison."
The alternative offense in question, section 288, subdivision (a) provides:
"Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
Thus, the elements of section 288, subdivision (a) include: "(1) a lewd touching (2) of a child under 14 years of age (3) with the intent of sexual arousal." (People v. O'Connor (1992) 8 Cal.App.4th 941, 947.)
Whether Williams's conviction of UCMJ, article 120 "would have been punishable" in California under section 261.5 as argued by Williams, or under section 288, subdivision (a) as argued by the Attorney General, turns on how the court applies the word "offense" in section 290.005. We addressed the question in Ranscht, supra, 173 Cal.App.4th 1369. In that case, we noted that the Supreme Court in Hofsheier based its equal protection analysis on the offenses of which persons were convicted. We continued: "Consistent with Hofsheier, we think the more appropriate course is to focus on the offense of which the defendant was convicted, as opposed to a hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge. 'This approach jibes with the mandatory registration statutes themselves, which are triggered by certain convictions..., and not by the underlying conduct of those offenses per se.' [Citations.]" (Ranscht, supra, 173 Cal.App.4th at pp. 1374-1375, italics in original.) Thus, focusing on the offense to which Williams actually pleaded guilty, we conclude the trial court properly found that UCMJ, article 120 was equivalent to a conviction of 261.5 in California.
The Attorney General argues that the trial court should follow the approach approved by the Supreme Court in People v. Myers (1993) 5 Cal.4th 1193 (Myers) and People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel), and consider the facts set forth in the stipulation Williams offered in support of his plea namely, that he had sexual intercourse with a child he knew to be 13-years old. The Attorney General maintains that these facts establish the first and third elements of a violation of section 288, subdivision (a), and the court could infer from that evidence that Williams engaged in sexual intercourse with the 13-year-old "with the specific intent not only to arouse, appeal, or gratify his own sexual desires, but that [sic] of the victim." In Ranscht, we expressly rejected the Manchel analysis on grounds the court overlooked the fact section 288, subdivision (a) requires proof of specific intent. (Ranscht, supra, 173 Cal.App.4th at pp. 1373-1374.) We distinguish Myers for similar reasons.
Myers involved comparison of the defendant's Arizona conviction under an Arizona burglary statute with the California burglary statute for purposes of imposing a prior serious felony enhancement under section 667, subdivision (a), where the California statute included the additional element that the accused entered an inhabited dwelling. (Myers, supra, 5 Cal.4th at pp. 1195-1197.) The Supreme Court held that the trial court could base its determination of the truth of the allegation on "the entire record of the prior conviction." (Id. at pp. 1201-1202.) In doing so, it responded to the same narrow issue that arose earlier in People v. Guerrero (1988) 44 Cal.3d 343 after the Legislature amended the California burglary statute to include the nature of the building entered. (Myers, supra, 5 Cal.4th at p. 1199.) More importantly, the element missing in Myers did not require proof of specific intent. We have serious concerns with the suggestion that the trial court be allowed to go behind the plea to infer specific intent from other facts in the record.
Having concluded that the offense of which Williams was convicted under the UCMJ was equivalent to conviction of section 261.5, it follows that the trial court's failure to honor his exemption from registration violates Williams's right to equal protection of the law. (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207; Ranscht, supra, 173 Cal.App.4th at p. 1375.) The Attorney General does not dispute that a person convicted of section 261.5 and therefore exempted from the section 290 registration requirement, must be removed from the sex offender registry. Accordingly, the trial court was required to grant Williams's request to direct the Department of Justice to remove his name from the registry.
DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to (1) vacate the part of its April 21, 2008 order in which it denied Williams's request to remove his name from the sex offender registry and (2) notify the Department of Justice, Sex Offender Registry Unit, that his name be removed from the registry.
WE CONCUR: McCONNELL, P. J.AARON, J.