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The People v. Brian Roger Kennedy

May 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRIAN ROGER KENNEDY, DEFENDANT AND APPELLANT.



(Santa Clara County Super. Ct. No. CC753104) Trial Court: Santa Clara County Superior Court Superior Court No. CC753104 Trial Judge: Hon. Kurt E. Kumli

The opinion of the court was delivered by: Bamattre-manoukian, J.

CERTIFIED FOR PUBLICATION

In 2009, defendant Brian Roger Kennedy filed a post-judgment motion for a reduction of his 2008 conviction for attempting to distribute harmful matter to a minor by the Internet (Pen. Code, §§ 664, 288.2, subd. (b))*fn1 from a felony to a misdemeanor. (§ 17, subd. (b)(3).) After the trial court granted the motion, in 2010 defendant filed a motion for an order relieving him of the lifetime sex offender registration requirements of section 290. The court denied the motion pursuant to section 17, subdivision (e), which states: "Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty."

On appeal, defendant contends section 17, subdivision (e) does not restrict the trial court's authority to terminate the lifetime registration requirement. As we disagree with defendant's contention, we will affirm the trial court's order.

BACKGROUND

"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." (People v. Kennedy (2009) 180 Cal.App.4th 403, 406 (Kennedy), fn. omitted.) Defendant sent "Tiffany" a picture of his erect penis, a picture of himself holding his erect penis, and videos and webcams of himself masturbating. (Ibid.) "On December 7, 2006, defendant arranged with 'Tiffany' to meet her. Defendant was arrested as he approached the designated meeting spot . . . . Officers found one-tenth 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." (Id. at p. 407.)

"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." (Kennedy, supra, 180 Cal.App.4th at p. 407.)

Defendant appealed, contending 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." (Kennedy, supra, 180 Cal.App.4th at p. 406.) In this court's published opinion filed December 18, 2009, we concluded that defendant had not established "that he was similarly situated to a group that is treated unequally under the existing law." (Id. at p. 410.) Accordingly, this court rejected defendant's claim "that mandatory registration as a consequence of his section 288.2, subdivision (b) felony conviction is unconstitutional." (Id. at p. 411.) Our Supreme Court denied defendant's petition for review on March 30, 2010, and the remittitur issued April 5, 2010.

In the meantime, on November 5, 2009, defendant filed a new motion for an order reducing the section 288.2 offense from a felony to a misdemeanor pursuant to section 17, subdivision (b)(3). On January 8, 2010, the probation department filed a memorandum recommending that the court grant the motion and continue defendant on probation under the original terms and conditions. At the hearing on the motion, the People submitted the matter on the moving papers and the probation department's memorandum. The court granted the motion. The formal order granting the motion states in relevant part: "Good cause appearing therefor[], [¶] IT IS HEREBY ORDERED that the conviction of defendant Brian Roger Kennedy on October 28, 2008 for a violation of Penal Code 664/288.2(b) (attempted sending of harmful matter to a minor) be hereby reduced to a misdemeanor." The court struck the language "for all purposes" that had been included at the end of this sentence on the proposed order.

On March 3, 2010, defendant filed a motion for an order terminating his sex offender registration requirement, contending that, "[i]n view of the reduction of the offense to a misdemeanor, this court has discretion to impose or decline to impose further registration requirements on the defendant." The People filed opposition to the motion on April 2, 2010, contending that "a discretionary reduction under Penal Code section 17(b) does not provide defendant relief from the mandatory registration requirement under Penal Code section 290." The probation department filed a memorandum on April 15, 2010, stating in part: "Although the defendant has maintained compliance with probation, in taking into consideration the nature of the instant offense, this officer does not believe relieving the defendant of his requirement to register as a sex offender would be appropriate at this time."

At the hearing on the motion on May 14, 2010, the court ruled as follows: "The court will deny the motion at this time, adopting for all intents and purposes the argument in the People's . . . opposition to defense moving papers with regard to the interpretation of section 17(e), and the explicit requirement leaving intact [section] 290 registration for situations exactly like that which were imposed in and surround this case. [¶] The court believes that if it were not for the explicit language of [section] 17(e), which is directly applicable to the facts and circumstances of this case and the defendant's plea, that if, in fact, the court had the discretion to relieve Mr. Kennedy of his obligation to register, that at some point, if not today, he should be relieved of that obligation. However, the court believes that the statute in this instance is controlling, that the case law cited by both counsel, while it is insightful to section 17 motions, generally does not explicitly give the authority for the court to do anything but leave the registration requirement intact."

DISCUSSION

"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 gratifying the lust or passions or sexual desires of that person or ...


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