People v. Jones, No. H022634.

• Court: California Court of Appeals
• Writing for the Court: Bamattre-Manoukian
• Citation: 124 Cal.Rptr.2d 10,101 Cal.App.4th 220
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Edwards JONES, Defendant and Appellant.
• Decision Date: 14 August 2002
• Docket Number: No. H022634.

124 Cal.Rptr.2d 10 101 Cal.App.4th 220 The PEOPLE, Plaintiff and Respondent,
v.
Mark Edwards JONES, Defendant and Appellant. No. H022634. Court of Appeal, Sixth District. August 14, 2002. Rehearing Denied September 3, 2002. Review Denied Oct. 30, 2002.^*

[124 Cal.Rptr.2d 11]

[101 Cal.App.4th 222]

Paul Couenhoven, Santa Clara, Sixth District Appellate Program, under appointment by the Court of Appeal for Defendant and Appellant, Mark Edwards Jones.

[101 Cal.App.4th 223]

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General, for Respondent, The People.

BAMATTRE-MANOUKIAN, Acting P.J.

Defendant Mark Edwards Jones pled guilty to failing to register as a sex offender (Pen.Code, § 290, subd. (g)(2)).¹ He also admitted that he had suffered one prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms (§ 667.5, subd. (b)). He was sentenced to a prison term of four years.

On appeal, defendant contends the trial court abused its discretion when it refused to strike his section 290 conviction on the ground that the sex offender registration requirement violates the state and federal constitutional guarantees of equal protection. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)

We conclude that defendant failed to show that the Legislature had no rational basis for requiring persons convicted of violating section 288a, subdivision (b)(1) (oral copulation with a person under the age of 18) to register as sex offenders under section 290. Therefore, the statute does not offend equal protection as applied to defendant, and the trial court did not abuse its discretion in declining to dismiss defendant's current conviction. We will affirm the judgment.

124 Cal.Rptr.2d 12

I. FACTS

In 1993, defendant was convicted of unlawful sexual intercourse with a person under age 18 (§ 261.5, subd. (a)) and oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)). According to defendant's motion to dismiss the "strike" as an exercise of the trial court's discretion under section 1385,² the two prior convictions stemmed from a nine-month consensual relationship with a 15-year-old girl when defendant was 23 years

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old. Because of the section 288a, subdivision (b)(1) conviction, defendant was required to register as a sex offender. (§ 290, subd. (a).)³

In March 1998, defendant was imprisoned after being convicted of several counts of possessing narcotics. On April 17, 2000, he was released on parole. On April 18, 2000, defendant's parole agent informed him of his duty to register as a sex offender within five days.

On May 5, 2000, the parole office informed the Sexual Assault Felony Enforcement Task Force that defendant had failed to register as a sex offender. Prior to his release from prison, defendant had provided as his intended address the address of his wife, Lisa Bradlau. Officers contacted Bradlau, who said defendant was not living with her, that he was not welcome to do so, and that she had seen him earlier in the week on Monterey Highway near San Jose Avenue. Officers who surveyed that area saw defendant enter room No. 133 of the Whitehouse Inn Motel. Upon his arrest, defendant said he had not registered as a sex offender because he did not have an address.

Defendant was charged, by information, with failing to register as a sex offender (§ 290, subd. (g)(2)). The information alleged that defendant had one "strike" conviction (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms (§ 667.5, subd. (b)). Defendant pled guilty to the substantive charge of failing to register as a sex offender and admitted the special allegations.

Defendant then requested that the trial court dismiss the "strike" as an exercise of discretion under section 1385 pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. He also filed a pro se request asking the trial court to exercise its section 1385 discretion to dismiss his section 290 conviction on the ground that the sex offender registration requirement

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violated his right to equal protection of the law. Defendant argued that section 290 is unconstitutional

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because it requires a person convicted of violating section 288a, subdivision (b)(1) to register as a sex offender but does not require registration of a person convicted of violating section 261.5, subdivision (a).

The trial court explained its reasoning for denying defendant's motion as follows: "There's one glaring legal concern that you are not necessarily expected to know. You do place a lot of emphasis on the People v. Felarca case from our own Sixth District.⁴ You do properly point out that that has been ordered depublished. I think that just took place. Very recently the California Supreme Court ordered the opinion depublished. [¶] What the rulings of court say: Once an opinion is depublished, we do have to ignore it. You say we can't ignore it. In fact, we really have to. That case, once it's ordered depublished, it's as good as if it's never been written. You are free to argue the same reasoning as was used in that case; could be used here and should be persuasive, [¶] My conclusion on this motion—again, while this is an interesting legal issue, so far the cases haven't found it an equal protection problem. Just for completeness of today's record, what we are talking about here are several sex offenses, including the two offenses that Mr. Jones was convicted of several years back. One requires registration; the other does not. The [section] 261.5 unlawful sexual intercourse does not require registration, whereas the [section] 288 does, [¶] Certainly the argument is we are ta[l]king about sexual conduct with a person under the—a person eighteen. Is there really a distinction in the law between traditional intercourse and oral sex? The law makes [a] distinction on who should register. I have to presume the Legislature had a rational basis in determining certain categories of sexual offenders are more likely to recidivate than others. [¶] I think to prevail on this motion you have to bring in some evidence to show that's irrational and that's not the case when it comes to recidivism. It would be the same as a conviction of 288. First one 261.5. Obviously you don't have that information, and I am inclined to deny [sic] the Mills case⁵ and some of the other cases that deal with the registration statute. I haven't found an equal protection problem." The trial court then asked defendant, "Do you want to add anything to what's in the written motion itself?" When defendant replied, "No, sir. I pretty much thought it would speak for itself," the trial court told defendant, "Yes, it does. It presents very well. Obviously, if the Felarca case had not been depublished, you'd have a winner on this motion."

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II. DISCUSSION

Defendant contends the trial court "abused its discretion when it refused to strike the section 290 conviction since [he] never should have been required to register in the first place because the registration requirement violated [his] constitutional right to equal protection of the laws." (Capitalization omitted.)

A. Waiver

The People argue that defendant has waived his claim on appeal. They first analogize to the rule that "defendants charged with crimes based on their prisoner [or ex-felon] status may be convicted of such offenses notwithstanding the invalidity of the conviction upon which the prisoner

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or ex-felon] status was based. [Citations.]" (People v. Harty (1985) 173 Cal. App.3d 493, 499, 219 Cal.Rptr. 85 [on appeal from conviction of ex-felon in possession offense, court refuses to consider possible invalidity of prior conviction giving rise to ex-felon status]; see also People v. Sanchez (1989) 211 Cal.App.3d 477, 479-481, 259 Cal.Rptr. 294 [despite invalidity of defendant's prior assault conviction, court would not dismiss charge of weapon possession by a person previously convicted of a violent offense]; Graham v. Superior Court (1979) 98 Cal.App.3d 880, 889-890, 160 Cal.Rptr. 10 [court would not dismiss charge of assault by a life prisoner despite fact that defendant was resentenced to a term of years].)

The People also argue that defendant's claim is waived because he pled guilty to the current offense. They point out that under section 1237.5, "[m]atters cognizable on appeal following a guilty plea are limited to issues based on `reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings' resulting in the plea. [Citations.]" (People v. La Jocies (1981) 119 Cal.App.3d 947, 956, 174 Cal.Rptr. 100.)

However, defendant is not challenging the validity of the prior conviction; nor is he arguing that he is not guilty of violating section 290. Rather, he is appealing the denial of his section 1385 motion, in which he asked the trial court to exercise its discretion to dismiss the section 290 conviction. A defendant may seek review of the denial of a section 1385 motion made after the entry of a guilty plea. (People v. Lloyd (1998) 17 Cal.4th 658, 665, 72 Cal.Rptr.2d 224, 951 P.2d 1191.) In Lloyd, the court allowed the defendant to proceed with a claim that the trial court erred by denying his section 1385 motion to dismiss his prior conviction, even though he had pled nolo contendere to the substantive charge. The court explained that the exercise of section 1385's authority to dismiss a prior conviction finding "does not call

[101 Cal.App.4th 227

into question the finding itself or its support." (Id. at p. 665, 72 Cal.Rptr.2d 224, 951 P.2d 1191.) Here, defendant similarly seeks review of the trial court's decision not to exercise its section 1385 discretion...