(Contra Costa County Super. Ct. No. 5-080414-6). Hon. Richard E. Arnason.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PUBLICATION
After a jury trial, Wesley Level Thompson was convicted of unlawful sexual intercourse and sodomy with a 17-year-old minor. Based on the sodomy conviction, the court found that defendant was subject to mandatory registration as a sex offender under Penal Code section 290.*fn1 Defendant contends, and the Attorney General concedes, that application of the mandatory registration statute to that offense would violate his federal and state constitutional rights to equal protection. We agree, and remand for the trial court to determine whether defendant is subject to discretionary registration under section 290.006, by virtue of his sodomy conviction and, if so, to exercise its discretion to determine whether defendant should be required to register under that provision.
By information filed in the Contra Costa County Superior Court, defendant was charged with unlawful sexual intercourse with a minor (§ 261.5, subd. (a); count one) and two counts of sodomy with a minor (§ 286, subd. (b)(1); counts two & three).
At the time the alleged sexual acts occurred, defendant was 36 years old and the victim was 17 years old. According to the victim's testimony, on October 15, 2007, the two engaged in vaginal and anal intercourse in defendant's car. The victim stated she was a willing participant in the incident because she was curious about sexual intercourse. She also testified that on October 17, 2007, they were discovered by the victim's father during a second attempted act of anal intercourse, which was the basis for the sodomy charge in count three.
The jury convicted defendant of unlawful sexual intercourse and one count of sodomy,*fn2 and the court sentenced him to two years in state prison on count one and to a concurrent sentence of eight months on count two.*fn3 The trial court delayed ruling on the issue of sex offender registration and allowed the parties to brief the applicability of section 290 to defendant's sodomy conviction. Specifically, the court wanted the parties to address the issue of whether, in light of the California Supreme Court's ruling in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), defendant should face mandatory registration.
The court subsequently concluded that defendant would not be required to register as a sex offender pursuant to his conviction for unlawful sexual intercourse. However, the court determined that registration was mandatory as to the sodomy conviction pursuant to section 290, subdivisions (b) and (c), and ordered defendant to register.*fn4
Defendant contends the California Supreme Court's holding in Hofsheier, constitutionally invalidating a portion of section 290's mandatory sex offender registration requirements, applies equally to his conviction of sodomy with a minor over the age of 16. He argues, like the defendant in that case, that imposing mandatory registration would deny him his federal and state constitutional rights to equal protection.
A. Mandatory Sex Offender Registration
The defendant in Hofsheier was a 22-year-old man who pled guilty to voluntary oral copulation with a 16-year-old girl.*fn5 (Hofsheier, supra, 37 Cal.4th at p. 1192.) The trial court imposed an order of mandatory sex offender registration, pursuant to former section 290, subdivision (a)(1)(A).*fn6 (Hofsheier, at p. 1192.) The defendant challenged the registration requirement, arguing that ―he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor [citation] under the same circumstances would not be subject to mandatory registration.‖ (Ibid.)
The court prefaced its analysis of the registration requirements by addressing the threshold question of whether ― ‗the state had adopted a classification that affects two or more similarly situated groups in an unequal manner.' ‖ (Hofsheier, supra, 37 Cal.4th at p. 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530.) It determined that, because the only difference between the two offenses was the nature of the sexual act, ―persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors ‗are sufficiently similar to merit application of some level of scrutiny to determine whether ...