People v. Luansing

• Citation: 97 Cal. Rptr. 3d 836,176 Cal.App.4th 676
• Decision Date: 11 August 2009
• Docket Number: No. B210413.,B210413.
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. WILFREDO HERNANDEZ LUANSING, Defendant and Appellant.

176 Cal.App.4th 676

97 Cal. Rptr. 3d 836

THE PEOPLE, Plaintiff and Respondent, v. WILFREDO HERNANDEZ LUANSING, Defendant and Appellant.

No. B210413.

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

August 11, 2009.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, James William Bilderback II, Janet Neeley and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DOI TODD, J.

Wilfredo Hernandez Luansing was convicted in 1979 of oral copulation with a person under the age of 16 in violation of Penal Code section 288a, subdivision (b)(2).¹ He appeals from an order denying his motion made pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier) to terminate his obligation to register as a sex offender. Appellant contends that he was denied equal protection and due process under the state and federal Constitutions by the denial of his Hofsheier motion, and if his due process claim was not preserved for appeal and is meritorious, he suffered ineffective assistance of counsel. Because we conclude that appellant was denied equal protection, we reverse and remand the matter.

PROCEDURAL AND FACTUAL BACKGROUND

In 1979, appellant, then 30 years of age, gave a ride to a boy who was under the age of 16. Appellant claimed he was told, and believed, that the minor was over 18. In the car, appellant performed oral sex on the minor at the minor's request. Appellant claimed that the boy intimidated him "to a point that I followed everything he told me to do yet I did not do anything to stop the moment for fear he was going to hurt me . . . ."

As a result of this incident, appellant was convicted of oral copulation with a person under the age of 16 in violation of section 288a, subdivision (b)(2).² He was placed on formal probation for five years, ordered to serve 270 days in the county jail and ordered to register with local police as a sex offender pursuant to former section 290.

In 2006, in Hofsheier, the California Supreme Court held that mandatory sex offender registration under former section 290, subdivision (a)(1)(A) (now § 290, subd. (b))³ violates equal protection as applied to a person convicted under section 288a, subdivision (b)(1) of oral copulation with a 16- or 17-year-old minor because a conviction of unlawful sexual intercourse with a minor of the same age in violation of section 261.5 would not trigger the mandatory registration requirement.⁴

On January 11, 2007, appellant petitioned and obtained a certificate of rehabilitation and pardon.⁵ On or about May 30, 2008, the Attorney General's office sent notice to appellant of the Hofsheier decision, informing him that depending upon the circumstances of his case he might be eligible for relief from the registration requirement.

The next month, armed with his certificate of rehabilitation, appellant filed a motion seeking to vacate his sex offender registration obligation pursuant to Hofsheier and its progeny, arguing that for the purpose of the registration requirement there is no rational distinction between oral copulation with a person 16 or 17 years old under section 288a, subdivision (b)(1) and oral copulation with a person 14 or 15 years old in violation of section 288a, subdivision (b)(2). The trial court denied the motion, stating that it was compelled to follow People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel), though that decision "really bother[ed the trial court] a lot."

DISCUSSION

Appellant contends that the trial court erred in denying his motion to terminate his mandatory sex offender registration. He argues that the holding in Hofsheier that mandatory sex offender registration is a denial of equal protection as applied to convictions of section 288a, subdivision (b)(1) is equally applicable to convictions of subdivision (b)(2) because there is no logical difference between orally copulating a 16- or 17-year-old minor and a 14- or 15-year-old minor.⁶

The Hofsheier decision

Our analytical starting point is Hofsheier, in which our Supreme Court held that the mandatory sex offender registration requirement of former section 290, subdivision (a)(1)(A) (current § 290, subd. (c)), as applied to a person convicted of orally copulating a 16 year old (§ 288a, subd. (b)(1)) violated equal protection. (Hofsheier, supra, 37 Cal.4th at p. 1207.) There, a 22-year-old man was convicted by plea of violating section 288a, subdivision (b)(1), for participating in voluntary oral copulation with a 16-year-old girl. The defendant was placed on probation, subject to 120 days in county jail and mandatory sex offender registration under former section 290, subdivision (a)(1)(A). That provision required that any person convicted of violating section 288a must register as a sex offender for the rest of his or her life. (Hofsheier, supra, at pp. 1192-1194.) The defendant appealed his conviction, contending that he was denied equal protection because a person convicted of unlawful, voluntary sexual intercourse with a minor in violation of section 261.5,⁷ under the same circumstances, would not be subject to mandatory registration, but only discretionary registration under former section 290, subdivision (a)(2)(E) (current § 290.006).⁸ (Hofsheier, supra, at p. 1193.) In short, sexual intercourse was not subject to the mandatory registration requirements whereas oral copulation was.

(1) Limiting its decision to voluntary acts of oral copulation when the victim is 16 or 17 years old under section 288a, subdivision (b)(1) (Hofsheier, supra, 37 Cal.4th at p. 1195), the Court 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.' [Citations.]" (Ibid.) "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."' [Citation.]" (Id. at pp. 1199-1200.)

(2) The Hofsheier court concluded that section 288a, subdivision (b)(1) and section 261.5 both concerned sexual conduct with minors and were "`sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.'" (Hofsheier, supra, 37 Cal.4th at p. 1200.) The court found no rational basis for a classification which required lifetime registration for a sex offender convicted of voluntary oral copulation with a 16-year-old minor but discretion whether to require registration for a person convicted of voluntary sexual intercourse with a minor of that same age. (Id. at pp. 1201-1207.) It concluded that equal protection was violated where the nature of the sexual act alone determined whether the defendant received mandatory sex offender registration or if the trial court had discretion.

People v. Garcia and People v. Hernandez

(3) People v. Garcia (2008) 161 Cal.App.4th 475 (Garcia) extended the holding of Hofsheier to section 288a, subdivision (b)(2), which penalizes voluntary oral copulation involving a 14- or 15-year-old victim when the perpetrator is more than 21 years of age. The court in Garcia concluded that mandatory lifetime registration for violation of section 288a, subdivision (b)(2), like subdivision (b)(1), violates equal protection. In Garcia, the 26-year-old defendant pled guilty in 1985 to voluntary oral copulation with a person 14 years of age (§ 288a, subd. (b)(2)) and unlawful voluntary sexual intercourse with a female not his wife under 18 years of age (former § 261.5).⁹ The defendant was placed on five years probation and was subject to mandatory sex offender registration. After Hofsheier was decided, the defendant moved for resentencing or, alternatively, for a hearing pursuant to Hofsheier to determine whether mandatory lifetime registration as a sex offender was appropriate. (Garcia, supra, at pp. 478-479.) The trial court denied the motion, concluding that under Hofsheier it had discretion to relieve defendant of mandatory registration, but that it was going to "`exercise its discretion and order that the defendant continue his registration.'" (Garcia, supra, at pp. 479-480.) But in exercising that discretion the trial court limited the evidence it would consider to that existing at the time of the crime. (Id. at p. 483.)

Division One of this District concluded that "`[i]f there is no rational reason for this disparate treatment [between oral copulation and sexual intercourse] when the victim is 16 years old [as concluded by Hofsheier], there can be no rational reason for the disparate treatment when the victim is even younger, 14 years old. Accordingly, Hofsheier applies whether the conviction is under subdivision (b)(2) or (b)(1) of section 288a,'" and former section 290, subdivision (a)(1)(A) cannot be constitutionally applied to convictions of section 288a, subdivision (b)(2). (Garcia, supra, 161 Cal.App.4th at p. 482.) The case was remanded for the trial court to consider evidence of the defendant's good behavior and rehabilitation since the time of sentencing which the trial court had not considered in the earlier hearing.

In People v. Hernandez (2008) 166 Cal.App.4th 641 (Hernandez), we were presented with the same issue presented in Garcia and here: whether Hofsheier applies to one convicted of section 288a, subdivision (b)(2). In Hernandez, the 22-year-old defendant was convicted of oral copulation with a 14 year old under section 288a, subdivision (b)(2). The defendant was placed on five years probation,...