Appeal from a judgment of the Superior Court of Orange County, Thomas J. Rees, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super. Ct. No. 30-2008-00098483, Trial Court Case No. 08SM01189).
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
A jury convicted Donald William Honan of one count of lewd conduct (Pen. Code, § 647, subd. (a)), and one count of indecent exposure (§ 314, subd. 1).*fn1 At sentencing, the trial court placed Honan on three years informal probation with terms and conditions that included lifetime registration as a sex offender based on his indecent exposure conviction, as required by section 290.
Honan successfully appealed the registration requirement to the Appellate Division of the Orange County Superior Court on equal protection grounds. The appellate division agreed with Honan's contention that mandatory sex offender registration for a conviction under section 314, subdivision 1, violates the constitutional guaranty of equal protection under the law. Reversing the judgment, the appellate division remanded the case to the trial judge for further proceedings under section 290.006 (discretionary registration).
The appellate division certified its opinion for publication and we transferred the matter here for review. We conclude Honan's equal protection challenge lacks merit and thus affirm the registration requirement imposed by the trial court.*fn2
Jose Martinez-Gutierrez testified that on February 17, 2008, he entered the sauna at a 24-Hour Fitness. The sauna had wooden benches on two levels and he sat on the lower bench, speaking on his cell phone. Defendant entered and sat on the higher level, across from Martinez-Gutierrez. When Martinez-Gutierrez looked up, he saw defendant staring at him with his erect penis in his hand, out of his shorts. Defendant was smiling at Martinez-Gutierrez and stroking his penis in an up and down motion, "like masturbation." Uncomfortable, Martinez-Gutierrez got up and walked out of the sauna.
A short time later, Martinez-Gutierrez returned to the sauna, angry that defendant's behavior had forced him to leave. Again, he noticed defendant looking at him and stroking his exposed penis. At this, Martinez-Gutierrez confronted defendant by saying, "What the fuck?" Defendant replied, "What?" Martinez-Gutierrez reported the incident to the manager of 24-Hour Fitness and then called 911.
The prosecution initially charged Honan with a single count of lewd conduct (§ 647, subd. (a)), but on the day of trial amended the complaint to add a charge of indecent exposure (§ 314, subd. 1).*fn3 The jury convicted Honan of both misdemeanors.
At sentencing, the trial court stated that section 290 mandates a lifetime sex offender registration requirement for the indecent exposure conviction; otherwise, the court would not have ordered Honan to register as a sex offender. The court rejected Honan's argument that the mandatory registration requirement violated equal protection.
Honan bases his claim of an equal protection violation on section 290's differing treatment of two closely related sex offenses: indecent exposure and lewd conduct. Section 290 requires mandatory lifetime registration for a person convicted of indecent exposure (§ 314, subd. 1), but not for a person convicted of lewd conduct (§ 647, subd. (a)).*fn4 Honan asserts that because the same conduct can underlie both convictions, as was the case here, there is no rational basis for the disparate treatment. Consequently, the registration requirement imposed on him is unconstitutional and must be vacated. Honan's argument is unpersuasive.
The federal and state constitutional guaranty of equal protection under the law means "that persons similarly situated with respect to the legitimate purpose of the law receive like treatment[.]" (People v. Romo (1975) 14 Cal.3d 189, 196.) "'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, original italics (Hofsheier).)*fn5 Honan's constitutional ...