APPEAL from the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions. (Super.Ct.No. SWF012909).
The opinion of the court was delivered by: Hollenhorst, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Fidencio Carillo Alvarado appeals from judgment entered following jury convictions for attempted lewd act on a child under 14 years old (Pen. Code, §§ 664, 288, subd. (a)*fn2; count 1); attempted dissuading of a witness (§ 136.1, subd. (b)(1); count 2); and misdemeanor lewd and unlawful exposure (§ 314, subd. (1); count 4). The trial court declared a mistrial as to counts 3 and 5 because the jury was unable to reach a verdict. The trial court also dismissed count 6, willful failure to appear while on bail (§ 1320.5). The court suspended imposition of sentence and placed defendant on probation for five years, subject to various terms and conditions.
Defendant contends the order requiring him to register as a sex offender violates his equal protection rights under the state and federal Constitutions. He also argues that section 4019, as amended, applies retroactively and therefore his presentence conduct credits must be recalculated under section 4019, as amended. Defendant further asserts that the trial court erred in imposing various fees and costs as conditions of probation. We agree that these challenged probation conditions must be modified. In all other respects, we affirm the judgment.
At night, about two weeks before J.M.'s 14th birthday, defendant approached J.M. as she was walking with her friend, E.M., home. Defendant drove up to J.M. and asked her if she wanted to have sex with him. When J.M. looked in defendant's truck she saw defendant exposing his penis and stroking it. J.M. continued walking as defendant followed her. After J.M. went home, she told her grandmother about the incident.
The day before J.M.'s 14th birthday defendant again approached J.M. in his truck as she was walking E.M. home. Defendant called J.M. over and asked her to meet him to have sex with him. J.M. saw defendant exposing and stroking his penis again. When J.M. told defendant she was going to tell her grandmother, defendant said he knew where J.M. lived and told her not to tell the police or her parents. J.M. went home and, while hiding behind a bush, wrote down defendant's license plate number as he drove down her street.
J.M. reported the incident to her grandmother and the police. The police located defendant in his truck and J.M. identified defendant. J.M.'s grandmother testified that about a week before defendant approached J.M., J.M.'s grandmother had shown defendant and another man one of her apartments that was for rent.
Defendant testified he had seen J.M. twice, including once when he and a friend went to J.M.'s apartment to look at an apartment J.M.'s grandmother was renting. After that, defendant saw J.M. two more times, including while he was driving down the street. Defendant claimed J.M. told him to stop and then ran up to his vehicle and asked where he was going. Defendant denied he exposed his penis. On another occasion, J.M. asked defendant to lower his window and she put her upper body in his truck. Defendant acknowledged that, after he was arrested, he told an officer he was attracted to J.M. and wanted to date her, but claimed he told the officer this because the officer was intimidating him.
2. Mandatory Sex Offender Registration
Defendant is required under section 290 to register as a sex offender because he was convicted of violating section 288, subdivision (a)*fn3 (attempted lewd acts on a child under 14 years old) and section 314, subdivision (1) (lewd exposure).
Defendant contends that he was denied equal protection of the laws under the federal and state Constitutions because sex offender registration is mandatory for his convictions, whereas it is discretionary for a section 261.5 conviction (unlawful intercourse with a minor). Defendant complains that persons convicted of committing or attempting to commit section 288(a) and section 314 offenses are similarly situated to those who commit a section 261.5 offense, yet they are treated differently.
The constitutional guaranty of equal protection of the laws under the federal and state Constitutions "'compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.'" (In re Gary W. (1971) 5 Cal.3d 296, 303.) Where the statutory distinction at issue neither "touch[es] upon fundamental interests" nor is based on gender, there is no equal protection violation "if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier).) That is, where there are plausible reasons for the classification, our inquiry ends. To sustain defendant's equal protection challenge to sex offender registration under section 290, defendant must prove that the classification scheme is irrational.
Defendant's reliance on Hofsheier, supra, 37 Cal.4th 1185, In re J.P. (2009) 170 Cal.App.4th 1292, and People v. Luansing (2009) 176 Cal.App.4th 676 (Luansing) is misplaced since the defendants in those cases were convicted of violating section 288a, subdivision (b)(1) (oral copulation with a victim under the age of 18 years), rather than section 288(a) (lewd acts with a victim under 14 years old). In Hofsheier, the defendant, who was 22 years old, was convicted of engaging in oral copulation with a 16-year-old girl in violation of section 288a, subdivision (b)(1). Under section 290, the defendant was required to register as a sex offender. (Hofsheier, at p. 1192.) On appeal, the defendant argued that he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (§ 261.5) under the same circumstances would not be subject to mandatory registration. (Hofsheier, at p. 1192.)
The California Supreme Court held, in accord with the decision of the court of appeal, "that to subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws." (Hofsheier, supra, 37 Cal.4th at p. 1193.) The Supreme Court directed the court of appeal to remand the case to the trial court for a determination of whether the defendant should be ordered to register as a sex offender under the discretionary registration provision of section 290. (Hofsheier, at pp. 1193, 1208-1209.)
The instant case is distinguishable from Hofsheier in that the victim in the instant case was under the age of 14 years, the defendant was over 20 years older than the victim, and the convictions were for attempting to commit a lewd act on a child under 14 years old (§ 288(a)) and for lewd exposure in a public place (§ 314, subd. (1)). These crimes are not substantially similar to a section 261.5 offense.
Defendant's section 288(a) conviction involves preying on young, vulnerable children, and therefore there is a valid reason for requiring mandatory sex offender registration as to a section 288(a) conviction. On the other hand, convictions for violating sections 261.5 and 288a, subdivision (b)(1) can include victims older than 14. As to older victims, the trial court may find that the offense is not sufficiently egregious and the offender is not dangerous to society, particularly to young ...