APPEAL from a judgment of the Superior Court of Los Angeles County. David Wesley, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. 31385758).
The opinion of the court was delivered by: Doi Todd, J.
CERTIFIED FOR PUBLICATION
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).*fn1
He appeals from an order denying hismotion made pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 (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).*fn2 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 section 290, subdivision (b))*fn3 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.*fn4
On January 11, 2007, appellant petitioned and obtained a certificate of rehabilitation and pardon.*fn5 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.‖
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.*fn6
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 section 290, subdivision (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 ...