People v. Hernandez

• Citation: 166 Cal.App.4th 641,83 Cal. Rptr. 3d 29
• Decision Date: 25 August 2008
• Docket Number: No. B203151.,B203151.
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES HERNANDEZ, Defendant and Appellant.

166 Cal.App.4th 641

83 Cal. Rptr. 3d 29

THE PEOPLE, Plaintiff and Respondent, v. JAMES HERNANDEZ, Defendant and Appellant.

No. B203151.

Court of Appeals of California, Second Appellate District, Division Two.

August 25, 2008.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BOREN, P. J.

In 2001, James Hernandez was convicted of oral copulation with a person under the age of 16 (Pen. Code, § 288a, subd. (b)(2))¹ upon a plea of no contest. The trial court placed him on five years' probation subject to 270 days in county jail and ordered him to register as a sex offender under section 290, former subdivision (a)(1)(A).² He appeals from an order denying his 2007 motion seeking to terminate the mandatory, lifetime requirement that he register as a sex offender. Appellant contends that that requirement violates equal protection under the state and federal Constitutions when applied to convictions of section 288a, subdivision (b)(2). Respondent contends that we should dismiss this appeal because appellant has failed to obtain a certificate of probable cause pursuant to section 1237.5.

We reverse and remand with directions.

PROCEDURAL AND FACTUAL BACKGROUND

In 2001, appellant pled no contest to one count of oral copulation with a person under 16 years of age (§ 288a, subd. (b)(2)).³ At the time of the offense, appellant was 22 years old and participated in oral copulation with a 14 year old.⁴ Appellant was placed on five years' formal probation, ordered to serve 270 days in county jail and ordered to register with local police as a sex offender pursuant to section 290, subdivision (a)(1)(A).

In 2006, in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier), the California Supreme Court held that mandatory sex offender registration under section 290, former subdivision (a)(1)(A) violates equal protection as applied to a person convicted of oral copulation of a minor between the ages of 16 and 18 (§ 288a, subd. (b)(1)).⁵

In 2007, based upon the decision in Hofsheier, appellant filed a "Motion to Vacate PC 290 Registration," seeking to vacate his mandatory registration requirement, arguing that for purposes of that requirement there is no rational distinction between oral copulation with a person between 16 and 18 years of age (§ 288a, subd. (b)(1)) and with a person between 14 and 16 years of age (§ 288a, subd. (b)(2)). The trial court denied the motion.

DISCUSSION

Appellant contends that the trial court erred in denying his motion to terminate his mandatory sex offender registration requirement. He argues that the analysis in Hofsheier, finding the mandatory registration requirement to be a denial of equal protection as applied to section 288a, subdivision (b)(1), is equally applicable to subdivision (b)(2). There is no logical difference between orally copulating a minor under 18 years of age and doing so to a minor under 16 years of age.

Respondent agrees with appellant but raises the preliminary question of whether appellant's contention is cognizable on appeal without a certificate of probable cause. Respondent argues that this contention is in substance a challenge to the validity of his plea and hence requires a certificate of probable cause.

We conclude that this appeal is cognizable without a certificate of probable cause and that the mandatory sex offender statute is unconstitutional as applied to section 288a, subdivision (b)(2).

I. Certificate of probable cause

(1) Appellate jurisdiction is purely statutory; a judgment or order is not appealable unless expressly made so by statute. (People v. Mazurette (2001) 24 Cal.4th 789, 792 [102 Cal.Rptr.2d 555, 14 P.3d 227].) Section 1237 authorizes appeals from judgments of conviction (§ 1237, subd. (a)) and from "any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) But section 1237.5 provides that generally no appeal may be taken from a judgment of conviction on a plea of guilty or no contest.⁶ Excepted from this limitation are appeals based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" (§ 1237.5, subd. (a); see People v. Hunter (2002) 100 Cal.App.4th 37, 41 ; People v. Hobbs (1994) 7 Cal.4th 948, 955 [30 Cal.Rptr.2d 651, 873 P.2d 1246]), but only if a certificate of probable cause is obtained (§ 1237.5, subd. (b)). An appellate court need not address a certificate issue raised by a defendant on appeal from a judgment of conviction based on a guilty or no contest plea when a certificate of probable cause has not been properly obtained. (See People v. Mendez (1999) 19 Cal.4th 1084, 1095 [81 Cal.Rptr.2d 301, 969 P.2d 146].)

(2) A postplea question not challenging the validity of a guilty plea is a noncertificate issue that may be raised on appeal after a guilty or no contest plea without a certificate of probable cause. (People v. Kaanehe (1977) 19 Cal.3d 1, 8 [136 Cal.Rptr. 409, 559 P.2d 1028]; People v. Mendez, supra, 19 Cal.4th at p. 1100; § 1237, subd. (b).) The certificate requirement is inapplicable "if the appeal is based upon grounds that arose after entry of the plea and that do not affect the validity of the plea." (People v. French (2008) 43 Cal.4th 36, 43 [73 Cal.Rptr.3d 605, 178 P.3d 1100].) "In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: `the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76 [51 Cal.Rptr.2d 851, 913 P.2d 1061].) Deciding whether an appeal is in substance a challenge to the plea or the sentence can "involve[] difficult . . . line-drawing." (People v. Buttram (2003) 30 Cal.4th 773, 790 [134 Cal.Rptr.2d 571, 69 P.3d 420].)

Here, appellant appeals the denial of his postplea motion to terminate his mandatory sex offender registration requirement on the ground that it violates equal protection. He does not seek to retract his no contest plea or otherwise challenge its validity. He does not argue that the plea bargaining process was invalid or that he entered his plea as the result of any misrepresentation by the court. If appellant prevails, his conviction based on his plea bargain will remain valid and unaffected.

(3) This postplea motion is not a substantive attack on the validity of the plea for another reason. The mandatory sex offender registration requirements that were the basis of the postplea motion were not a part of his plea, and could not be. Registration as a sex offender is mandatory and is not a permissible subject of a plea agreement negotiation. (In re Stier (2007) 152 Cal.App.4th 63, 78 ; People v. McClellan (1993) 6 Cal.4th 367, 380 [24 Cal.Rptr.2d 739, 862 P.2d 739].) Registration cannot be avoided through a plea bargain. (Hofsheier, supra, 37 Cal.4th at p. 1196; In re Stier, supra, at p. 78.) The mandatory sex offender registration requirement is analogous to other constitutional and statutory provisions that, while restricting the rights of convicted felons, are not part of the negotiated plea. (i.e., Cal. Const., art. II, § 4 [convicted felons in state prison or on parole cannot vote]; Code Civ. Proc., § 203, subd. (a)(5) [convicted felons cannot serve on jury duty]; § 12021 [convicted felons cannot own or possess a firearm]; see also Bus. & Prof. Code, § 480, subd. (a)(1) [convicted felons may be prevented from practicing licensed trades and professions].)

Because the postplea motion appealed from did not challenge the validity of the plea, a certificate of probable cause was not required.

II. Constitutionality of mandatory sex offender registration

In considering the constitutionality of mandatory sex offender registration, our starting point is Hofsheier. In that case, a 22-year-old man pled guilty to violating section 288a, subdivision (b)(1), for participation in voluntary oral copulation with a 16-year-old girl. The trial court placed defendant on probation, subject to 120 days in county jail and to mandatory sex offender registration under section 290, former subdivision (a)(1)(A). (Hofsheier, supra, 37 Cal.4th at pp. 1192-1194.) Under that section, any person convicted of violating section 288a, among other specified offenses, must register as a sex offender for the rest of his or her life. Defendant appealed his conviction, contending that he was denied equal protection because a person convicted of unlawful, voluntary sexual intercourse with a minor under section 261.5,⁷ under the same circumstances, would not be subject to the mandatory reporting requirements, but only to discretionary registration under section 290, former subdivision (a)(2)(E).⁸

(4) Our Supreme Court in Hofsheier limited its decision to "the validity of the mandatory registration requirement for the first category [section 288a, subdivision (b)(1)]—voluntary acts of oral copulation when the victim is 16 or 17 years of age." (Hofsheier, supra, 37 Cal.4th at p. 1195.) It reasoned that, "`[t]he 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.]" (Hofsheier, supra, at p. 1199.) "`The Equal Protection Clause . . . imposes a requirement of some rationality in the nature of the class singled out.' [Cit...