People v. Hofsheier

Decision Date06 March 2006
Docket NumberNo. S124636.,S124636.
Citation129 P.3d 29,39 Cal.Rptr.3d 821,37 Cal.4th 1185
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Vincent Peter HOFSHEIER, Defendant and Appellant.

Paul Couenhoven, Santa Clara, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Moona Nandi, Eric D. Share and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Defendant, a 22-year-old man, pled guilty to oral copulation with a 16-year-old girl in violation of Penal Code section 288a, subdivision (b)(1) (hereafter section 288a (b)(1).)1 Under section 290, anyone convicted of certain sexual offenses, including a violation of section 288a (b)(1), must, while residing in California, register for life as a sex offender with the appropriate law enforcement agency. Defendant was therefore ordered to register as a sex offender.

Defendant appealed. He contended that he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (§ 261.5) under the same circumstances would not be subject to mandatory registration. The Court of Appeal agreed and ordered the trial court's order granting probation modified to eliminate the registration requirement. Because the Court of Appeal's holding conflicted with People v. Jones (2002) 101 Cal.App.4th 220, 124 Cal.Rptr.2d 10 (Jones), we granted review to resolve the conflict.

We now hold, in accord with the decision of the Court of Appeal in this case, that to subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws. We direct the Court of Appeal to remand the case to the trial court, however, to exercise its discretion to determine whether defendant should be required to register as a sex offender under section 290, subdivision (a)(2)(E).

I. FACTS AND PROCEEDINGS

On April 6, 2003, defendant engaged in voluntary oral copulation with a 16-year-old girl.2 Under a plea bargain, defendant pled guilty to felony oral copulation in violation of section 288a (b)(1) in return for dismissal of two misdemeanor counts. Because of that guilty plea, the trial court denied defendant's request to reduce his felony conviction to a misdemeanor.

At the sentencing hearing, defense counsel argued that under the circumstances of this case, defendant should not be subject to mandatory lifetime registration as a sex offender. Counsel said: "It's kind of ironic, because if he had actually had sexual intercourse with [the minor] and was charged and convicted of statutory rape, he would not have to register under 290 of the Penal Code. It seems to me that his conduct is less serious in that sort of a situation, yet the statute seems to suggest that he is required to register for life. I think that is a violation of equal protection under the laws and a violation of the California Constitution. . . ."

The prosecutor responded that he would have no objection if defendant, after completing probation, were to ask the trial court to have his felony conviction reduced to a misdemeanor and to delete the requirement of lifetime registration as a sex offender. The trial court asked: "Doesn't it [the lifetime registration requirement] seem a little out of whack here?" The prosecutor agreed: "I think the law is out of whack. But that's the law." The trial court observed that in applying the registration requirement here, the law did appear to be "out of whack," but said it could not "find on the face of it that it's unconstitutional."

After suspending imposition of sentence, the trial court granted defendant probation on various conditions, including 120 days in county jail. It required defendant to register as a sex offender, but it said that if defendant successfully completed probation, he could seek to have his conviction reduced to a misdemeanor, which "would relieve him from the registration requirement."

Defendant appealed, pointing out that reducing his felony conviction to a misdemeanor would not relieve him of his lifetime registration duty because section 290 mandates lifetime registration for all persons convicted of violating section 288a (b)(1), not only those sentenced as felons, as he was. (See § 290, subd. (a)(1)(A) [all persons convicted of offenses listed in par. (2) must register for life]; id., subd. (a)(2)(A) [listing offenses, including § 288a]; In re Alva (2004) 33 Cal.4th 254, 265, fn. 4, 14 Cal.Rptr.3d 811, 92 P.3d 311 [only a gubernatorial pardon will relieve a defendant of a lifetime registration requirement].) Defendant contended that under the facts here imposition of mandatory lifetime registration as a sex offender denied him equal protection of the laws under the state and federal Constitutions because someone convicted of unlawful intercourse under the same circumstances would not face such mandatory registration. The Court of Appeal agreed, perceiving no rational basis for distinguishing between voluntary oral copulation with a minor and voluntary sexual intercourse with a minor. It affirmed defendant's conviction but modified the order granting probation to delete the lifetime registration requirement. We granted the Attorney General's petition for review.

II. THE RELEVANT STATUTES
A. Sections 288a and 261.5

Before 1921, oral copulation was prosecuted, along with sodomy and bestiality, as "the infamous crime against nature." (Stats. 1850, ch. 99, § 47, p. 234, codified in 1872 as § 286.) The Legislature's enactment of section 288a in 1921 made oral copulation a separate felony, punishable by an indefinite prison term of one to 15 years. (Stats.1921, ch. 848, § 2, p. 1633.) The 1921 statute applied to all acts of oral copulation, but in 1975 the Legislature amended it to exclude acts between consenting adults. (Stats.1975, ch. 887, § 2, p. 1958.)

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. Section 288a (b)(1), the provision under which defendant was convicted of oral copulation with a 16-year-old girl, provides: "[A] person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year." Although section 288a (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 (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.

Defendant compares section 288a (b)(1), which prohibits oral copulation with a person under 18 years of age, with section 261.5, which prohibits "unlawful sexual intercourse," defined as an act of intercourse with a minor "not the spouse of the perpetrator." (§ 261.5, subd. (a).) Like section 288a (b)(1), section 261.5 also has a graduated scale of punishments. Subdivision (b) provides: "Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor." Subdivision (c) states that any person who engages in an act of unlawful sexual intercourse with a minor more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony. Subdivision (d) provides that a person over the age of 21 who engages in unlawful sexual intercourse with a minor under the age of 16 is guilty of a misdemeanor or a felony punishable by two to four years' imprisonment. Other statutes provide still greater punishment for forcible or involuntary intercourse (rape). (§§ 261, 264, 266c.) If defendant here, a 22-year-old man, had engaged in voluntary sexual intercourse with a 16-year-old girl, instead of oral copulation, he would have been guilty of violating section 261.5, subdivision (c), but he would not face mandatory sex offender registration.

In sum, both section 288a and section 261.5 follow a pattern of imposing greater punishment on offenses involving younger victims, but the sentences imposed at each age level are not identical. Depending on the age of the victim or perpetrator, persons convicted of oral copulation with a minor are sometimes subject to more severe sentences than persons convicted of unlawful intercourse with a minor, often subject to the same sentence, and occasionally subject to less severe sentences.3 Apart from the...

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