(Santa Clara County Super. Ct. No. 113705). Trial Judge: Hon. Andrea Bryan.
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
In 1987, a jury convicted Philander Lewis of two counts of oral copulation with a minor under the age of 18. (Pen. Code, § 288a, subd. (b)(1).)*fn1 The trial court placed Lewis on probation and ordered him to register as a sex offender as required by section 290. Twenty years later, Lewis filed a motion in the superior court asking the court to lift the lifetime registration requirement. Relying upon the California Supreme Court's decision in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), Lewis argued that mandatory sex offender registration for a section 288a, subdivision (b)(1) conviction was a violation of his right to equal protection of the law. The People conceded the point but argued that the court was entitled to continue the registration requirement under the discretionary registration statute. (§ 290.006.) The superior court agreed with the People and denied the motion. Lewis appeals from that order.
A threshold concern is whether the superior court had authority to hear a motion filed 20 years after the judgment was final. In light of that concern, we have chosen to treat the instant matter as a petition for writ of mandate. In so doing, we conclude that Lewis is entitled to the relief he sought.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn2
All the crimes for which Lewis was convicted concerned a 1986 incident between the 22-year-old Lewis and a 17-year-old acquaintance. The victim testified at the preliminary examination that she, Lewis, and her cousin Allen Beasley, left a party one evening shortly after Christmas. They drove around sharing free-base cocaine. When they came to an apartment complex about 10 or 11 blocks from the victim's home, they parked the car. Lewis got out of the car and Beasley asked the victim to orally copulate him, which she did. Beasely then got out of the car and Lewis got in. He asked the victim to do the "same thing" to him. The victim told him she wanted to go home and Lewis told her he would take her home after she orally copulated him. When asked at the preliminary hearing if Lewis had "push[ed] [her] head down on his penis," the victim said "yes." After the victim complained to the police about the incident, Lewis told the victim he would give her $100 if she would drop the charges. The victim had not told Lewis how old she was. She had a boyfriend at the time who was the same age as Lewis.
Lewis was charged with two counts of oral copulation with a minor under the age of 18 (§ 288a, subd. (b)(1), counts 1 & 2), two counts of oral copulation against the victim's will by means of force, violence, duress, menace or fear of bodily injury (§ 288a, subd. (c)(2), counts 3 & 4), and one count of bribing a witness (§ 137, subd. (a)).
We do not know how the victim testified at trial since there is no transcript in the record. We do know that the trial court granted Lewis's motion for acquittal (§ 1118.1) on counts 3 and 4, after concluding that the prosecution's evidence was insufficient to sustain a conviction of forcible oral copulation. The jury found Lewis guilty of the two counts of voluntary oral copulation (§ 288a, subd. (b)(1)) but could not reach a verdict on the bribery count. At sentencing, the trial court ordered Lewis to "register pursuant to Section 290 of the Penal Code."
In 2006, the Supreme Court decided Hofsheier, supra,37 Cal.4th 1185. Prior to Hofsheier, a person convicted of voluntary oral copulation with a minor (§ 288a, subd. (b)(1)) was subject to the mandatory lifetime registration requirement of section 290, but registration was not mandatory for a person convicted of having sexual intercourse with a minor. (§§ 288a, subd. (b)(1), 261.5; Hofsheier, supra,at pp. 1194-1198.) Hofsheier found the two types of offenders sufficiently similar to require a rational justification for the different registration requirements. (Hofsheier, supra,at pp. 1199-1207.) Finding none, the court held that mandatory registration for a violation of section 288a, subdivision (b)(1) violated the constitutional guarantee of equal protection of the law. (Hofsheier, supra,at pp. 1192-1193, 1207.)
On November 28, 2007, Lewis filed a motion in the superior court seeking to set aside the order requiring him to register under section 290. Lewis argued that Hofsheier, supra,37 Cal.4th 1185, was directly applicable to his case since he was convicted only of voluntary oral copulation. He also maintained that discretionary registration under section 290.006 was not warranted because had not committed a registerable offense in the 20 years since his conviction.
The People conceded "the Hofsheier aspect" of the motion but argued, based upon the record of his conviction, such as it was, and Lewis's subsequent criminal history,that the court should continue to require registration under section 290.006, which gives the court discretion to order a person to register "if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification" and the court states on the record "the reasons for its findings and the reasons for requiring registration." Lewis's criminal record included one misdemeanor conviction for failure to register as a sex offender in 1995, two misdemeanor convictions for soliciting prostitution in 1988 and 1993, a narcotic sales conviction, several felonies for possession of a controlled substance, and a misdemeanor domestic violence conviction. The prosecutor argued that, in light of this record, the community had a substantial interest in knowing Lewis's whereabouts in the future so that continued registration as a sex offender was warranted.
The prosecutor also argued that the jury'snot-guilty finding on the aggravated charges had been made under the reasonable doubt standard, implying that the court could consider the evidence of force, duress, menace, or fear that appeared in the record. In so arguing, the prosecutor must have relied upon the probation report, which inaccurately noted that Lewis had been found not guilty by the jury of counts 3 and 4. The clerk's minutes clearly show that Lewis's acquittal of the forcible oral copulation charges was the result of the trial court's ruling under section 1118.1 that the evidence was insufficient, as a matter of law, to support a conviction on those charges.
The superior court denied Lewis's motion to lift the registration requirement, stating, "First of all, the court is going to make a finding that the crime was committed for the purpose of sexual gratification. [¶] I am then going to make a finding that the defendant took advantage of the victim's vulnerable position; specifically, that she was 17, and that she was alone in a car with two males. [¶] So, I am, once again, deferring to the jury's finding with respect to the duress and force. However, the defendant--it appears to the court that the victim was clearly vulnerable at that point. [¶] And I'm also going ...