People v. Garcia

• Citation: 161 Cal.App.4th 475,74 Cal.Rptr.3d 681
• Decision Date: 27 March 2008
• Docket Number: No. B196863.,B196863.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Anthony GARCIA, Defendant and Appellant.

74 Cal.Rptr.3d 681

161 Cal.App.4th 475

The PEOPLE, Plaintiff and Respondent, v. John Anthony GARCIA, Defendant and Appellant.

No. B196863.

Court of Appeal, Second District, Division 1.

March 27, 2008.

[74 Cal.Rptr.3d 683]

Beltran, Beltran, Smith, Oppel & MacKenzie and Patrick S. Smith, Burbank, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

JACKSON, J.^*

INTRODUCTION

Defendant John Anthony Garcia appeals from an order denying his motion to be relieved of the requirement that he register as a sex offender (Pen.Code, § 290¹) pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185, 39 Cal.Rptr.3d 821, 129 P.3d 29. We reverse and remand the matter for a new hearing on the motion.

FACTUAL AND PROCEDURAL BACKGROUND

On April 1, 1985, defendant pled guilty to oral copulation with a person under the age of 16 years (§ 288a, subd. (b)(2)) and unlawful sexual intercourse with a female not his wife under the age of 18 years (§ 261.5). According to the probation officer's report, 14-year-old Heather H. and her family were staying with defendant, who was then 26 years old. While Heather and defendant were watching television, he rubbed her knee and told her he liked young girls and wanted to know her better. She moved to another chair and fell asleep. She woke up when defendant began pulling down her panties. She pretended to be asleep, and defendant fondled her, orally copulated her and had sexual intercourse with her. She later told her parents what had happened, and they notified the police.

Defendant was placed on five years' probation. Additionally, pursuant to section 290, subdivision (a)(1)(A), defendant was subject to mandatory lifetime registration as a sex offender due to his conviction of oral copulation.

In 2006, the California Supreme Court decided Hofsheier. It held that the mandatory lifetime sex offender registration requirement of section 290, subdivision (a)(1)(A), violated the equal protection clause to the extent it required mandatory registration for oral copulation with a 16year-old girl (§ 288a, subd. (b)(1)) but not for unlawful sexual intercourse with a girl the same age (§ 261.5). (People v. Hofsheier, supra, 37 Cal.4th at pp. 1206-1207, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court concluded that where mandatory registration violates the equal protection clause, the proper remedy is to hold a hearing to determine whether defendant should be subject to discretionary registration as a sex offender under subdivision (a)(2)(E) of section 290. (Hofsheier, supra, at pp. 1208-1209, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

On June 16, 2006, defendant moved for resentencing or, in the alternative, for a hearing pursuant to Hofsheier to determine whether lifetime registration as a sex offender was appropriate. In support of his motion he submitted character letters as to his remorse over the 1985 incident and the blameless life he has led since then.

On December 14, 2006, the trial court denied defendant's motion. In making it ruling, the trial court initially noted that "[f]rom reviewing all the materials contained in the court file, if this court were to review whether or not the defendant should be required to register under the discretionary provisions of [section] 290, the court would clearly find that the registration requirement was appropriate and warranted by the underlying circumstances of the crime. You have a 25-year-old individual engaging in various forms of sexual behavior with a ... 14-year-old child. [¶] If the court were to make that discretionary decision today, the defendant would be required to register under the dictates of [section] 290 for the rest of his life...."

The trial court acknowledged that "[defendant has not re-offended in terms of any type of offense of a sexual nature." Additionally, defendant "submitted a psychological report addressing the underlying circumstances that required the registration and his conduct and psychological state that he has offered in terms of asking the court to terminate the registration requirement."

The court added that defendant "is asking to be relieved [of] the lifetime obligation to register and [I] have no doubts that there are persons in our society now who are required to register under [section] 290 who have been crime free, such as the defendant, for a length of time equivalent to that of the defendant.... But those defendants, former defendants, don't have an avenue to come into court and to present circumstances and try to persuade a court to relieve them of that registration requirement. The requirement is a lifetime registration requirement, not a requirement that is reviewed periodically and assessed whether it should be a continuing one.

"The law seems to be that even if a person rehabilitates himself for a substantial period of time, the registration requirement shall continue irrespective of that. So, in effect, the defendant is asking this court to do something that courts can't do for all that might be similarly situated."

After concluding that under Hofsheier it had the discretion to determine whether defendant should be subject to lifetime sex offender registration, the trial court stated that it "is going to exercise its discretion and order that the defendant continue his registration pursuant to [section] 290.[¶] To rule in this fashion is to ignore the rehabilitative efforts that I think this defendant has, in fact, made; but, as the court has stated, other registrants have made those types of efforts and perhaps for an even longer period of time. They are still required under the law to continue that registration, [¶] In any event, the motion to be relieved of registration requirements of [section] 290 in this matter is denied."

DISCUSSION

A. The Hofsheier Decision

In Hofsheier, defendant, who was then 22 years old, engaged in voluntary oral copulation with a 16-year-old girl. He pled guilty to felony oral copulation in violation of section 288a, subdivision (b)(1). As a result of his conviction, he was subject to the mandatory lifetime sex offender registration requirement of section 290, subd. (a)(1). At the sentencing hearing, defense counsel noted it was ironic that, had defendant been convicted of statutory rape (§ 261.5), he would not have had to register as a sex offender. On appeal, defendant contended that the mandatory lifetime sex offender registration requirement violated the equal protection clauses of the federal and state Constitutions, in that someone convicted of unlawful sexual intercourse under the same circumstances would not face mandatory sex offender registration. (People v. Hofsheier, supra, 37 Cal.4th at pp. 1193-1194, 39 Cal.Rptr.3d 821, 129 P-3d 29.)

The Supreme Court noted that "both section 288a and section 261.5 follow a pattern of imposing greater punishment on offenses involving younger victims." (People v. Hofsheier, supra, 37 Cal.4th at p. 1195, 39 Cal.Rptr.3d 821, 129 P.3d 29.) "Apart from the mandatory lifetime registration requirement, voluntary sexual acts between a 22-year-old and a 16-year-old—whether oral copulation or sexual intercourse—are treated identically...." (Id. at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

The court then observed that section 290, subdivision (a)(1)(A), provides for mandatory lifetime registration as a sex offender for persons convicted of committing the enumerated offenses, including oral copulation with a minor in violation of section 288a, but not including unlawful sexual intercourse with a minor in violation of section 261.5. (People v. Hofsheier, supra, 37 Cal.4th at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) However, under subdivision (a)(2)(E) of section 290, the trial court in its discretion may require registration as a sex offender by persons convicted of committing offenses not enumerated in subdivision (a)(1)(A) of section 290, provided the offenses were committed "`as a result of sexual compulsion or for purposes of sexual gratification.'" (Hofsheier, supra, at p. 1197, 39 Cal.Rptr.3d 821, 129 P.3d 29.)²

The question before the court thus was whether a mandatory lifetime sex offender registration requirement for an adult convicted of voluntary oral copulation of a minor 16 years old or older but not for an adult convicted of voluntary sexual intercourse with a minor 16 years old or older violates the equal protection clause. (People v. Hofsheier, supra, 37 Cal.4th at p. 1198, 39 Cal.Rptr.3d 821, 129 P.3d 29.) The court concluded that it did, in that persons convicted of the two offenses were similarly situated, and there were no rational grounds for treating them differently. (Id. at pp. 1199-1207, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

The court then turned to the appropriate remedy for the equal protection violation. It concluded that because the section 290, subdivision (a)(1)(A), mandatory lifetime sex offender registration requirement could not constitutionally be applied to defendant, "the matter should be remanded to the trial court so it can determine whether defendant falls within the discretionary registration category described in subdivision (a)(2)(E) of section 290 ...; if he does, the trial court may, in its discretion, order defendant to register as a sex offender under that provision." (People v. Hofsheier, supra, 37 Cal.4th at pp. 1208-1209, 39 Cal.Rptr.3d 821, 129 P.3d 29.)

B. Whether Hofsheier Applies Here

The People contend Hofsheier does not apply here, because defendant was convicted of violating subdivision (b)(2) rather than (b)(1) of section 288a.³ We disagree.

Subdivision (b)(1) of section 288a provides that "any person who participates in an act of oral copulation with another person who is under 18 years of age" is guilty of oral copulation. Subdivision (b)(2) applies to "any...