People v. Alcala

• Citation: 13 Cal.Rptr.3d 741,118 Cal.App.4th 1362
• Decision Date: 27 May 2004
• Docket Number: No. C037000.,C037000.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joel ALCALA, Defendant and Appellant.

13 Cal.Rptr.3d 741

118 Cal.App.4th 1362

The PEOPLE, Plaintiff and Respondent, v. Joel ALCALA, Defendant and Appellant.

No. C037000.

Court of Appeal, Third District.

May 27, 2004.

Review Granted August 25, 2004.

Law Offices of Sharon L. Rhodes, Sharon L. Rhodes; and Francia M. Welker,

under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

SCOTLAND, P.J.

Defendant Joel Alcala was charged with committing unlawful sex acts with four minor females. A jury convicted him of oral copulation involving one girl (Pen.Code, § 288a, subd. (b)(1)), acquitted him of the charge of sexual battery against another girl, and was unable to reach verdicts on the charges of oral copulation involving a third girl and sexual battery against the fourth girl. Defendant was granted probation on various conditions, including that he serve 150 days in custody and register as a sex offender pursuant to Penal Code section 290. (Further section references are to the Penal Code unless otherwise specified.)

On appeal, defendant contends the order requiring him to register as a sex offender for committing oral copulation with a minor is unconstitutional because there is no such mandatory registration requirement for what he characterizes as the more harmful offense of unlawful sexual intercourse with a minor. In defendant's view, this disparate treatment deprives him of equal protection of the laws. As we will explain, the contention fails because there is a plausible reason why the Legislature has applied the mandatory sex offender registration requirement to the crime of oral copulation with a minor, but made it optional as to the crime of unlawful sexual intercourse with a minor.¹

We also reject defendant's contention that the sex offender registration requirement constitutes cruel or unusual punishment as applied to him. Long ago, the California Supreme Court held that requiring someone to register as a sex offender may, in certain circumstances, constitute cruel or unusual punishment. (In re Reed (1983) 33 Cal.3d 914, 920-922, 191 Cal.Rptr. 658, 663 P.2d 216.) Later state and federal high court decisions have undermined that holding, but we are bound to follow In re Reed until it is explicitly overruled in this regard. Nevertheless, considering the important nonpunitive purpose of the sex offender registration requirement and the minimal, if any, punitive nature of the requirement, we conclude that requiring defendant to register as a sex offender does not shock the conscience or offend fundamental notions of human dignity.

Accordingly, we shall affirm the judgment.

FACTS

We summarize only the facts relating to the charge of which defendant was convicted.

During the summer of 1999, defendant and other fellow Forest Service personnel were frequent customers of the restaurant where a 17-year-old girl (the minor) worked. The minor, who did not have a driver's license, allowed defendant to drive her home from work one night. When he asked her age, she said she was 17. Defendant was 23. Upon arriving at her home, the minor thanked defendant for the ride and declined his request to stay in the car for a few more minutes to talk with him. As she was about to get out of the car, defendant put his hand on her upper thigh and asked, "Am I going to get a thank you?" After she again thanked him for bringing her home, defendant said, "That is not the kind of thank you that I want." The minor replied, "I know that, but that is the only kind of thank you you are going to get." She then got out of the car and defendant left.

The minor was attracted to defendant and wanted to know him better. Thus, she and her cousin went to the Forest Service barracks to see him. The minor flirted with defendant and allowed him to massage her back. While massaging her, defendant asked her to undo the straps of her overalls, started to kiss and suck on her ear, and said he was going to tell her a secret. According to the minor, she felt "very, very uncomfortable" at this point, but nonetheless invited defendant to visit her later that night at the guest house in which she and her cousin were staying next to her parents' home.

When defendant arrived at the guest house, he and the minor sat in the bedroom and talked, while her cousin was watching television in the adjacent room. The minor and defendant then began kissing, and he fondled her breasts through her clothing. She had no objection to this and even lifted her shirt at his request. Defendant kept asking her to "have sex" with him. Although the minor said something to the effect, "okay, whatever," she did not mean to convey that she was interested in having sexual intercourse with him. In fact, she did not even think that he was "actually serious about it" because she was only 17 and he was 23. No further sexual activity ensued, and defendant left after 30 to 45 minutes.

Three or four days later, defendant returned to the guest house uninvited. By this time, the minor felt guilty about what had happened during the prior visit "because he was so much older, and [she] realized [she] shouldn't have done it." Even though she felt uncomfortable that he had returned, she talked with defendant while her cousin sat with them. When the cousin left the room to go to bed, the minor allowed defendant to kiss her. Defendant then asked her to unbutton his pants and touch his penis; she declined. He asked why. Without looking at him, she said, "Just because I don't want to." Defendant grabbed her head and turned it toward him. At this point, the minor saw that defendant had unbuttoned his pants and exposed his penis. Forcing her head toward his penis, he asked her to "give him a blow job." She told defendant that she did not want to do so. But he would not take "no" for an answer. Applying pressure to keep her head at his penis, defendant said, "Come on, please." The minor "eventually gave up," stated, "okay, I will," and orally copulated his penis. She stopped before he could ejaculate and told him, "I don't want to do this anymore, and I'm not going to do this anymore." Defendant replied, "Okay," and put his penis back into his pants. Soon thereafter, he departed.

While the minor was at work a few days later, defendant arrived there and offered her another ride home. She declined. When she next saw defendant at an event called "Bigfoot Days," he asked her to go to his barracks with him. Again, she declined. Feeling "violated" and "disgusted with [herself] that [she] had let something like that happen[ ]," the minor told a teacher that defendant had forced her to orally copulate him.

Defendant testified that the minor unzipped his pants, fondled his penis as he fondled her breasts, and voluntarily performed oral copulation on his penis; he did not force her to do so. According to defendant, he believed that she was an adult because she had her own apartment, worked late at night, and had served him beer at the restaurant.

DISCUSSION

I

As he did in the trial court, defendant contends that the order requiring him to register as a sex offender violates his federal and state rights to equal protection of laws in that section 290 mandates registration as a sex offender for his crime of oral copulation with a minor (§ 288a, subd. (b)(1)) but not for the "substantially" similar crime of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)).²

For reasons that follow, we conclude defendant has failed to carry his burden of demonstrating constitutional error.

"The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classifications of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished." (Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 659, 34 Cal.Rptr.2d 641, 882 P.2d 358 (hereafter Adams).)

Whenever "a legislative classification involves a suspect classification or significantly infringes upon a fundamental right" (Adams, supra, 8 Cal.4th at p. 659, 34 Cal.Rptr.2d 641, 882 P.2d 358), "`the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' [Citation.] [Orig. italics.]" (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17, 112 Cal.Rptr. 786, 520 P.2d 10 (hereafter D'Amico).)

Otherwise, the party who challenges the classification has the burden to demonstrate that it fails the "rational basis test." (Adams, supra, 8 Cal.4th at p. 660, 34 Cal.Rptr.2d 641, 882 P.2d 358; D'Amico, supra, 11 Cal.3d at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10.) To carry this burden, the party must show that the classification bears no "rational relationship to a conceivable, legitimate state purpose." (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487.)

In defendant's view, the sex offender registration requirement of section 290 implicates a fundamental right because it affects his "liberty, privacy and travel rights." We address each right in turn.

Defendant tenders no argument or legal authority to support his claim that the sex offender registration requirement infringes upon his liberty interest. "Where a point is merely asserted by appellant's counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647, 199 Cal.Rptr. 72.) In any event, as the California Supreme Court has recognized, the requirement does not constitute punishment ...