APPEAL from a judgment of the Superior Court of Butte County, Robert A. Glusman, Judge. Affirmed. (Super. Ct. No. CM029856).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PUBLICATION
In People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), the California Supreme Court held that mandatory lifetime sex offender registration for defendants convicted of nonforcible oral copulation with 16- or 17-year-old minors (Pen. Code, § 288a)*fn1 violated state and federal equal protection guarantees.
In this case, defendant Ronald Dean Jeha urges us to extend the reasoning of Hofsheier to conclude that mandatory lifetime sex offender registration for conviction of sexual penetration by foreign object on an unconscious person (§ 289, subd. (d)) violates his equal protection rights. Defendant also attacks the registration requirement on grounds that it violates substantive due process under the United States and California Constitutions. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In January 2009, defendant pled no contest to sexual penetration by foreign object on an unconscious person (§ 289, subd. (d)). The trial court subsequently placed defendant on probation for a period of four years, ordered him to serve 180 days in jail, and required him to complete 200 hours of community service. The court denied defendant's motion to bar the mandatory sex registration requirement imposed by section 290.
Since defendant pled no contest, we draw on the facts as stated in the probation report. The report recounts that an unidentified motorist in Chico saw a shirtless Caucasian man with his pants down at 11:15 p.m. on October 23, 2008. The man was attempting to hold onto a woman, who seemed to be trying to stand up or walk away. The woman, whose jeans and underwear were pulled down, appeared to be very intoxicated.
When the motorist looked back a few moments later, she saw that the woman had fallen down. The man pulled up his pants before attempting to pick the woman up. The man also attempted to pull up the woman's pants and underwear. However, the woman fell down again. The motorist then saw the man lift the woman up beneath her underarms and drag her across a preschool parking lot and into the bushes. After losing sight of the woman, the motorist called the police.
When a police officer arrived, he found the woman lying unconscious and naked from the waist down. Her hair and clothing were disheveled, and she had red and watery eyes. She appeared to be extremely intoxicated and the officer had difficulty in getting her to respond to his questions.
The woman denied having any physical injuries or having had sexual intercourse with anyone. She was unable to explain her state of undress. The woman said that she had been with her "girls" and did not recall interacting with any men. She was transported to a nearby medical facility for evaluation and treatment.
Hospital staff found that the woman had some bleeding and swelling near her vagina and injury to her anal area. The staff conducted a sexual assault forensic examination on the woman, and found that she had debris in her hair, clothing, and vaginal area. She had abrasions on her left knee, near her vaginal opening, and around her anus. A staff member reported that the abrasions in her genital area were consistent with penetration.
A police investigation determined that one of the woman's friends had received a call from an unfamiliar number at 10:40 p.m. The caller identified himself as "Ronnie" and told the woman's friend that the woman was intoxicated and needed a ride. The friend asked where the woman was located, and Ronnie said the woman was near a 7-Eleven store on West 3rd and Oak Streets. The friend requested that Ronnie stay with the woman until the friend could pick her up.
Eight minutes later, the friend arrived but could not locate the woman or Ronnie. The friend telephoned Ronnie and asked whether the woman was still with him. Ronnie hung up on her. The friend drove around the area to search for the woman and dialed Ronnie's phone number seven more times, all to no avail. The friend informed the woman's sister, who sent a text message to Ronnie's cell phone at 11:08 p.m. to inquire about her sister's whereabouts.
At 11:27 p.m., the woman's sister received a text message from Ronnie's cell phone that read, "She's fucked I left her." When the sister asked about the location, she received the response: "Like 3rd and Oak." The sister then asked about the woman's well being and received a text message stating: "She was hammed I just ignored hes [sic]."
The next day, the investigating officer met with the woman and her parents at the Chico Police Department. The woman said that she had consumed alcohol with friends before going to a party at another friend's residence. The woman was unable to remember anything that transpired after leaving the party and before waking up in the hospital. She denied engaging in sexual intercourse with anyone.
At the request of the officer, the woman made a pretext telephone call to Ronnie's cell phone. A man, later identified as defendant, answered the phone and identified himself as Ronnie. She identified herself as the woman from the previous night and thanked him for helping her. She asked whether anyone was with him when he contacted her. Defendant replied that he and his friends found her sitting on a curb and extremely intoxicated. Defendant refused to identify his friends and denied calling the woman's friend. The woman replied that she wanted to call his friend to thank him, but defendant replied by asking her what happened. She explained that she woke up with genital soreness and was uncertain about what had happened. Defendant responded, "Nothing like that happened (sexual incident)." When the woman continued to tell him about her soreness, he responded: "Sorry, it wasn't me. I mean I'm sorry that something like that happened, if that's what happened, but I don't know."
The woman then asked defendant whether they had ever met before, and he replied that he did not know. Defendant denied that he had called her friend but admitted that he had been intoxicated. She asked whether he was sure that they had not had sexual relations, and he answered that he was 100 percent certain and offered to provide a DNA sample as proof. The woman informed defendant that the person who had called her friend for assistance had identified himself as Ronnie. Defendant conceded that he must have been the caller but explained that he had been intoxicated. The investigating officer then instructed the woman to end the pretext call.
The investigating officer later interviewed defendant. Defendant explained that he had been intoxicated during the incident. He stated that he and his friends found the victim lying on the ground, and they decided to help her. Defendant struck up a conversation with the woman, and he began "smooth talking" her as they headed toward her residence. Defendant and the woman were holding hands and kissing as they walked along and discussed "hooking up" with each other. When they arrived at West 1st and Oak Streets, "it became 'heavier'" - by which defendant meant that the woman removed his shirt. When they neared the preschool, the victim's pants had come off and she was trying to remove his pants too. They moved behind a dumpster and resumed kissing. Defendant suggested that they go to his apartment where he had a condom.
Defendant denied having sexual intercourse with the victim. He stated that he pulled up his pants and fled when he saw a police vehicle. When the investigating officer confronted defendant with the evidence of the woman's injuries to her genital area, defendant acknowledged that he may have digitally penetrated her vagina for several seconds. Defendant adamantly denied inserting anything into her anus, stating: "That wasn't me. I don't cross that line ever." Defendant stated that the woman responded to him by ...