(Santa Clara County Super.Ct.No. CC639980). Trial Judge: Hon. Ray E. Cunningham.
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
In People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), the Supreme Court held unconstitutional the application of mandatory lifetime sex offender registration under Penal Code section 290*fn1 to a defendant convicted of unlawful, nonforcible oral copulation involving a 16-year-old. The court concluded that because there was no rational basis for requiring registration in the defendant‟s case and not requiring it for persons convicted of unlawful, nonforcible sexual intercourse with a 16-year-old victim, mandatory registration for the former offense violated the equal protection clauses of the federal and state Constitutions. (Hofsheier, supra, at p. 1207.)
After defendant David Reid Cavallaro pleaded no contest to six counts of lewd and lascivious acts involving 14-and 15-year old victims at least 10 years younger than he (§ 288, subd. (c)(1); hereafter, § 288(c)(1)), he argued successfully that the imposition of mandatory sex offender registration under section 290 was prohibited under Hofsheier, supra, 37 Cal.4th 1185. The People appeal from that ruling, arguing that barring mandatory registration after a conviction under section 288(c)(1) was an unwarranted extension of Hofsheier. We agree and therefore will reverse.
Defendant, who was born December 18, 1978, was 26 and 27 years old at the time of the incidents. The victims were two girls, K. and S.*fn3 K. (born May 1991) was 14 and 15 years old at the time of the incidents; S. (born September 1991) was 14 at the time of the incidents.
K. and S. met defendant during the summer of 2005 while he was skateboarding in the Campbell neighborhood where they lived. Defendant said he was 19 and the girls asked to see his driver‟s license because they thought he was older; he did not show it to them.
The girls next saw defendant on Halloween night in 2005 when defendant answered the door at his home as they were trick or treating in the neighborhood. Defendant invited them in when they stopped by a second time and they watched television. Defendant complimented K. on her costume and rubbed her outer thigh; she tried to move away from him.
K. and S. went to defendant‟s house on New Year‟s Eve of 2005. They went to a convenience store where defendant bought some alcohol; they went back to his house and drank some of it. Defendant showed them a pornographic movie. At midnight, he kissed both girls. The three of them went into defendant‟s bedroom and lay down. Defendant tried to take off S.‟s bra; she told him to stop and he eventually did. Defendant also rubbed both girls‟ breasts, buttocks, thighs, and vaginas over their clothing. He also put his hand down the back of K.‟s pants. According to K., S. rubbed defendant‟s crotch over his pants. (S. testified that defendant took her hand and placed it on his crotch.) After S. left the bedroom, defendant continued to fondle K. and she refused his request that she remove her pants. While he was fondling K., defendant ejaculated through his underwear onto K.‟s clothing. At some point that evening while they were in the kitchen, defendant grabbed S. from behind and "humped" her.
In 2006, K. went to defendant‟s house between five and 10 more times, usually with S. On one occasion, defendant smoked marijuana in the girls‟ presence and offered them some; they declined. Defendant showed them a pornographic film once or twice. He touched K.‟s and S.‟s legs, buttocks, and breasts on several of those occasions; he also tried to take off their bras. On one occasion in August 2006 when K. went over to defendant‟s house with her friend, Jonathan, defendant unzipped his pants and "flashed" his penis. The police showed up on that occasion because defendant had called them, claiming that K. and Jonathan had trespassed by entering his home.
In another incident, defendant stopped by K.‟s house with some fast food for K. and another girl. While they were at the door, defendant reached out touched K.‟s breast.
Defendant was charged by information filed on January 19, 2007, with six felony counts of lewd or lascivious acts on a child of the age of 14 or 15 where the adult is at least 10 years older than the child (§ 288(c)(1)); two misdemeanor counts of distributing or exhibiting harmful matter having a sexual content to a minor (§ 313); and two felony counts of furnishing or offering to furnish marijuana to a minor 14 or over (Health & Saf. Code, § 11361, subd. (b)). Pursuant to defendant‟s motion, the court reduced the last two counts to misdemeanors under section 17. Defendant entered a plea of no contest to all 10 counts with the understanding that he would receive a maximum prison sentence of three years. On October 18, 2007, the court granted three years‟ probation upon the condition that defendant serve 11 months in the county jail.
Defendant and the People submitted briefs concerning whether defendant was subject to mandatory lifetime sex offender registration pursuant to section 290. After extended argument, on November 15, 2007, the court concluded that the imposition of mandatory registration on defendant would violate equal protection and accordingly rejected the People‟s request for such registration. The court also denied the People‟s request for discretionary sex offender registration pursuant to ...