People v. Anderson

• Decision Date: 15 October 2008
• Docket Number: No. H031106.,H031106.
• Citation: 85 Cal. Rptr. 3d 262,168 Cal.App.4th 135
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DALE THOMAS ANDERSON, Defendant and Appellant.

168 Cal.App.4th 135

85 Cal. Rptr. 3d 262

THE PEOPLE, Plaintiff and Respondent, v. DALE THOMAS ANDERSON, Defendant and Appellant.

No. H031106.

Court of Appeals of California, Sixth District.

October 15, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Law Offices of J. Courtney Shevelson and J. Courtney Shevelson for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Sharon G. Birenbaum, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DUFFY, J.

Defendant Dale Thomas Anderson was convicted following a jury trial of one count of committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child (Pen. Code, § 288, subd. (c)(1); hereafter § 288(c)(1)),¹ and one count of misdemeanor battery (§§ 242, 243, subd. (a)). The sex and battery crimes involved the babysitter of defendant's minor children. The court suspended imposition of sentence and placed defendant on probation with the condition that he serve six months in county jail. The court also ordered defendant to register as a sex offender pursuant to section 290.

Defendant contends that as a result of a misstatement of the law by the prosecution in an argument concerning the element of intent required for the commission of a lewd act and the court's failure to give a curative instruction, he was deprived of due process. He contends further that he was denied equal protection by being subjected to mandatory registration as a sex offender under section 290.

We conclude that error was committed at the beginning of opening argument when the prosecutor misstated the law concerning the element of intent for the charged crimes. We find, however, that the prosecutorial error does not warrant reversal of the judgment. We further reject defendant's constitutional challenge to the requirement that he register as a sex offender. We therefore affirm the judgment.²

FACTUAL BACKGROUND³

I., II.^*

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PROCEDURAL BACKGROUND

Defendant was charged by information filed April 21, 2006, with two felony sex offenses, namely the commission of lewd or lascivious acts on a child of 14 or 15 years in violation of section 288(c)(1). It was alleged that the two offenses occurred between July 1, 2004, and July 1, 2005.

On September 29, 2006, the jury convicted defendant on count 1, acquitted defendant on count 2, but found him guilty on the lesser included offense of misdemeanor battery (§§ 242, 243, subd. (a)). The court thereafter denied defendant's motion to reduce the count 1 conviction to a misdemeanor. It suspended imposition of sentence and ordered that defendant be placed on three-year probation on the condition that he serve six months in the county jail. He was also ordered to pay restitution to the victim and to register as a sex offender under section 290. Defendant filed a timely notice of appeal.

DISCUSSION

I., II.^*

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III. Mandatory Registration As a Sex Offender

As a consequence of his conviction of violating section 288(c)(1), defendant was ordered by the court to register as a sex offender pursuant to former section 290, which required that anyone convicted of certain sex offenses, including violations of section 288, register for life as a sex offender.¹⁵ Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier), defendant contends that this was error. We conclude that defendant's suggestion that the holding of Hofsheier should be extended to the circumstances presented here is unwarranted; we therefore reject his claim of error.

(1) In Hofsheier, the defendant pleaded guilty to a violation of section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1192.)¹⁶ The conduct underlying the conviction consisted of the defendant, a 22-year-old man, engaging in voluntary oral copulation with a 16-year-old girl. (Hofsheier supra, at pp. 1192, 1193.) The Supreme Court contrasted the consequences of a conviction for a violation of section 288a, subdivision (b)(1), under which sex offender registration was mandatory, with those of a conviction of unlawful sexual intercourse with a minor under 18 in violation of section 261.5. (Hofsheier, supra, at pp. 1194-1196.) It noted that while registration under section 290 was not considered a form of punishment, "it imposes a `substantial' and `onerous' burden [citations]." (Hofsheier, supra, at p. 1197.) In addressing the defendant's equal protection challenge to mandatory registration, the court first determined whether the two groups—i.e., persons convicted of voluntary oral copulation with a minor (§ 288a) and those convicted of voluntary sexual intercourse with a minor (§ 261.5)—were similarly situated for purposes of the statute being challenged, concluding that they were. (Hofsheier, supra, at pp. 1199-1200.) Second, after noting that the defendant bore the burden of establishing that there was no rational basis for the distinction between the two groups insofar as sex offender registration was concerned (id. at p. 1201), the court held "that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like [the] 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, fn. omitted). It therefore held that mandatory registration for a violation of section 288a, subdivision (b)(1) violated the constitutional guarantee of equal protection. (Hofsheier, supra, at pp. 1192-1193, 1207.) The court directed that the case be remanded to allow the trial court to determine whether to exercise its discretion to order registration under section 290, former subdivision (a)(2)(E). (Hofsheier, supra, at pp. 1208-1209.)

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.)

(2) Second, the 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 § 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.)

(3) 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...