(Santa Clara County Super. Ct. No. CC753104). The Honorable Kurt E. Kumli.
The opinion of the court was delivered by: Bamattre-Manoukian, Acting P.J.
CERTIFIED FOR PUBLICATION
Defendant Brian Roger Kennedy pleaded no contest to attempting to exhibit harmful matter to a minor by the Internet (Pen. Code, §§ 664, 288.2, subd. (b))*fn1 and guilty to possessing a controlled substance (Health and Saf. Code, § 11350, subd. (a)). The trial court denied defendant's motion to reduce his section 288.2, subdivision (b) offense to a misdemeanor with leave to refile the motion at a later time. The court also suspended imposition of sentence, placed defendant on probation for five years with various terms and conditions, and ordered defendant to register as a sex offender under section 290.
On appeal, defendant contends that the section 290 mandatory registration requirement violates the equal protection provisions of the federal and state Constitutions because there is no rational basis for requiring defendant to register when those who commit other felony sex offenses are not required to register. His argument is based on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), where our Supreme Court held unconstitutional the application of mandatory lifetime sex offender registration under section 290 to a defendant convicted of unlawful, nonforcible oral copulation with a 16-year-old (§ 288a, subd. (b)(1)) because those convicted of unlawful, nonforcible sexual intercourse with a 16-year-old (§ 261.5, subd. (a)) were not required to register. We find no equal protection violation in this case, and therefore affirm the judgment requiring mandatory lifetime sex offender registration for defendant.
Between November 8, 2006, and December 7, 2006, defendant engaged in a sexually explicit Internet dialogue using instant messaging, email, and webcams, with an undercover San Jose police detective posing as a 13-year-old girl named Tiffany Meadows.*fn2 On November 8, 2006, the detective logged on to an internet chat room titled "San Francisco Bay Area" as "Tiffany" and defendant initiated contact with "Tiffany." He subsequently sent "Tiffany" a picture of his erect penis. On November 28, 2006, defendant sent "Tiffany" a video of himself masturbating, even though he had told her he should not send it to her because she was too young.
On November 29, 2006, defendant sent "Tiffany" a picture of himself fully clothed using his webcam. Later in the day, he sent "Tiffany" a picture of himself holding his erect penis. He also asked for pictures of "Tiffany" and "Brittany" ("Tiffany's" fictitious 13-year-old friend) clothed in short skirts with no panties. He then asked if "Tiffany" wanted to have sex with him. "Tiffany" responded that she was a virgin, but was interested in defendant. "Tiffany" asked defendant to bring condoms so she would not get pregnant.
On November 30, 2006, defendant contacted "Tiffany" from work using a webcam. He unzipped his pants and began to masturbate. He told "Tiffany" that he was watching pornography at the same time. He later asked Tiffany for a picture of Brittany. After a picture was sent, defendant commented that Brittany looked very young. On December 6, 2006, defendant asked "Tiffany" for naughty pictures of herself. During a webcam contact with "Tiffany," defendant opened his pants, pulled out his erect penis, and masturbated. He told "Tiffany" that he was watching pornography but that he would be looking at a picture of her if he had one.
On December 7, 2006, defendant arranged with "Tiffany" to meet her. Defendant was arrested as he approached the designated meeting spot in front of "Brittany's" apartment. Officers found 1/10 ounce of cocaine in defendant's pants pocket, and defendant told the officers that he had been using cocaine for two years. He also told officers that he was there to meet a girl he had met online. He said that, although "Tiffany" said she was 13 years old, he did not believe she was that young because of the "level of language" that she used. He said that "Tiffany" was very persistent in pursuing him.
On September 6, 2007, the Santa Clara County District Attorney filed an amended complaint charging defendant with attempted lewd or lascivious acts on a child under 14 (§§ 664, 288, subd. (a); count 1); attempted distributing or exhibiting harmful matter to a minor by electronic mail, the Internet, or a commercial online service (§§ 664, 288.2, subd. (b); count 2); and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3). On March 13, 2008, defendant pleaded no contest to count 2 (attempting to exhibit harmful matter to a minor by the Internet) and guilty to count 3 (possessing a controlled substance). As part of the negotiated plea, the trial court dismissed count 1 (attempting lewd acts on a child under 14).
On October 28, 2008, the court denied defendant's motion to reduce his section 288.2, subdivision (b) offense to a misdemeanor with leave to refile the motion at a later time. The court also suspended imposition of sentence, placed defendant on probation for five years with various terms and conditions, and ordered defendant to register as a sex offender under section 290. In ordering the registration requirement the court stated: "The court will also say, for whatever it is worth, to the extent that the court had discretion not to impose the registration requirement upon the sustaining of the felony in this case, that the court would strongly consider not imposing the registration requirement for whatever that's worth on appeal."
We begin by addressing the trial court's decision to find defendant's section 288.2 offense to be a felony, and its statement that, "to the extent that the court had discretion not to impose the registration requirement upon the sustaining of the felony in this case, that the court would strongly consider not imposing the registration requirement." Defendant was convicted of attempting to distribute harmful matter to a minor pursuant to sections 664 and 288.2, subdivision (b). The statutory scheme allows the court discretion to find the conviction to be either a felony or a misdemeanor: "Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet . . . or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or ...