People v. Brandao

• Decision Date: 08 February 2012
• Docket Number: No. A131972.,A131972.
• Citation: 203 Cal.App.4th 436,12 Cal. Daily Op. Serv. 1780,2012 Daily Journal D.A.R. 1837,137 Cal.Rptr.3d 672
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronaldo Braz BRANDAO, Defendant and Appellant.

12 Cal. Daily Op. Serv. 1780

137 Cal.Rptr.3d 672

2012 Daily Journal D.A.R. 1837

203 Cal.App.4th 436

The PEOPLE, Plaintiff and Respondent,

v.Ronaldo Braz BRANDAO, Defendant and Appellant.

No. A131972.

Court of Appeal, First District, Division 2, California.

Feb. 8, 2012.

Kristine Burk, Sebastopol, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, for Plaintiff and Respondent.

KLINE, P.J.

Appellant Ronaldo Braz Brandao was convicted, pursuant to a plea agreement, of misdemeanor annoying and molesting a child under Penal Code, section 647.6, subdivision (a). On appeal, he contends the requirement that he register for life as a sex offender as a result of this conviction violates his right to equal protection of the laws. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 39 Cal.Rptr.3d 821, 129 P.3d 29 ( Hofsheier ).) We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged in a misdemeanor complaint in Sonoma County Superior Court with three counts of annoying and molesting a child (Pen.Code, § 647.6, subd. (a)).¹ Each count involved a separate alleged victim. Subsequently, the prosecutor amended the complaint to strike two of the counts, and appellant pleaded no contest as to one of the alleged victims, “Jane Doe 2.” His plea anticipated that he would be placed on three years probation, on condition, inter alia, that he complete a counseling program and register as a sex offender pursuant to section 290.

On September 21, 2010, the trial court placed appellant on three years of formal probation. The court authorized appellant to reside in Oregon and ordered him to “comply with all sex offender requirements in the state in which you reside.”

On October 12, 2010, appellant filed a notice of appeal in the Sonoma County Superior Court, Appellate Division. In his appeal, appellant challenged the order that he register as a sex offender on equal protection grounds. On May 11, 2011, the Appellate Division affirmed the trial court's registration order.

On June 1, 2011, we granted appellant's petition to transfer the case from the Appellate Division to this court.

FACTUAL BACKGROUND ²

In January 2008, appellant, a native of Brazil, was 37 years old and was the girls' varsity soccer coach at a high school in Sonoma. The 15–year–old victim, Jane Doe 2, was a member of the soccer team.

Jane Doe 2 reported numerous text messages from appellant, which she had saved. The text messages read as follows: ³ “ ‘Hi Love?’; ‘Some brazilian that love u!’; ‘don't u know any brazilian in love whit u?’; ‘Are u sure?’; ‘Do u believe in my heart?’; ‘Can u keep it as secret’; ‘Ok this is ur love coach’; ‘Hi do u believe me’; ‘Ok this UR love coach’; ‘read the msg and answer to my heart are u at scho’; ‘good girl kkk’; ‘can I call u’; ‘Hi’; ‘Hi how is yours 2008 so far?’; ‘Ok could be better’; ‘Well can't explain’; ‘Yes I do have’; ‘can you keep it as a secret our secret’; ‘The are a reason u are the reason’; ‘I missing you’; ‘U know u are my true love don't u?’; ‘Cause u ara BBG and I cant control heart’; BOA! Bonita! Gostosa in Portuguese'; ‘Secret and. Don't be mad if u don't like it means BOA-hot BONITA-beautiful GOSTOSA-hot please don't tell to any body’ and ‘Sorry I did write wrong word what did I?’ ”

Two other girls on the soccer team, ages 16 and 17, had similar interactions with appellant that made them uncomfortable.

Appellant told police he was joking when he sent the text messages and did not mean to hurt or take advantage of Jane Doe 2. He also acknowledged, however, that he should not have sent the messages and had crossed the line in doing so.

DISCUSSION

Appellant was convicted of violating section 647.6, subdivision (a), a misdemeanor offense, which punishes “[e]very person who annoys or molests any child under 18 years of age.” (§ 647.6, subd. (a)(1).)

Section 647.6, subdivision (a) ⁴ does not require a touching, “but does require (1) conduct a ‘ “normal person would unhesitatingly be irritated by” ’ [citations], and (2) conduct ‘ “motivated by an unnatural or abnormal sexual interest” ’ in the victim [citations].” 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.].... [¶] ‘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.]” ( People v. Lopez (1998) 19 Cal.4th 282, 289–290, 79 Cal.Rptr.2d 195, 965 P.2d 713.)

Although no specific intent is required, section 647.6, subdivision (a)(1), does require that the acts be “motivated by an unnatural or abnormal sexual interest or intent with respect to children.” ( In re Gladys R. (1970) 1 Cal.3d 855, 867–868, 83 Cal.Rptr. 671, 464 P.2d 127 ( Gladys R.); People v. Maurer (1995) 32 Cal.App.4th 1121, 1127, 38 Cal.Rptr.2d 335; see also People v. Shaw (2009) 177 Cal.App.4th 92, 103, 99 Cal.Rptr.3d 112 [“there can be no normal sexual interest in any child and it is the sexual interest in the child that is the focus of the statute's intent”].) Our Supreme Court has also explained the primary purpose of the statute: The “ ‘ “protection of children from interference by sexual offenders, and the apprehension, segregation and punishment of the latter.” [Citations.]’ ” ( Gladys R., supra, 1 Cal.3d at p. 868, 83 Cal.Rptr. 671, 464 P.2d 127; accord, People v. Shaw, supra, 177 Cal.App.4th at p. 103, 99 Cal.Rptr.3d 112.)

All defendants who are convicted of violating section 647.6, subdivision (a), are subject to mandatory lifetime registration as a sex offender, pursuant to section 290. (See § 290, subd. (c).) ⁵ “ ‘ “ ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ ” ' [Citations.] In recent years section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. (See Stats.1996, ch. 908, § 1, subd. (b), p. 5105.)” ( Hofsheier, supra, 37 Cal.4th at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) “Although sex offender registration is not considered a form of punishment under the state or federal Constitution [citations], it imposes a ‘substantial’ and ‘onerous' burden [citations].” ( Id. at p. 1197, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

Appellant's sole contention on appeal is that mandatory sex offender registration under section 290 for a defendant convicted of annoying and molesting a child under section 647.6, subdivision (a), violates that defendant's right to equal protection of the laws under both the United States and California Constitutions. Because appellant's equal protection challenge is a facial one, we focus on the abstract elements of the offense rather than on the particular facts of his case. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145; see also People v. Ranscht (2009) 173 Cal.App.4th 1369, 1375, 93 Cal.Rptr.3d 800 [“Courts which have applied Hofsheier beyond section 288a, subdivision (b)(1) have similarly focused on the offense to which the defendant challenging the mandatory registration requirement pleaded, without looking to the underlying acts”].)

“ ‘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.].... [¶] Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citations.]” ( Hofsheier, supra, 37 Cal.4th at pp. 1199–1200, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The second requirement is to show that the challenged law bears no “rational relationship to a legitimate state purpose.” ( Id. at p. 1200, 39 Cal.Rptr.3d 821, 129 P.3d 29.) ⁶

In Hofsheier, supra, 37 Cal.4th 1185, 1193, 39 Cal.Rptr.3d 821, 129 P.3d 29, the defendant was convicted, pursuant to section 288a, subdivision (b)(1), of voluntary oral copulation with a minor who is 16 or 17 years of age, ⁷ for which lifetime sex offender registration was mandatory. The defendant claimed the mandatory registration requirement violated his right to equal protection because defendants convicted of voluntary sexual intercourse with minors of the same age under ( § 261.5, subd. (c)) were subject to discretionary registration under section 290, subdivision (a)(2)(E) (now section 290.006).⁸ ( Id. at p. 1192, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

Our Supreme Court first compared the two offenses, finding that “both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors ‘are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.’ [Citation.]” ( Hofsheier, supra, 37 Cal.4th at p. 1200, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court then examined whether the different...