(Super. Ct. No. 09NCR07158)
The opinion of the court was delivered by: Nicholson , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
An information alleged the 24-year-old defendant Maciej Wieslaw Lata had contacted and arranged meetings, by way of the so-called "MySpace" Web site on the Internet, with a 12-year-old minor with the intent to commit an act of molestation. Pursuant to a negotiated plea, the prosecutor amended the information to include a count of misdemeanor child annoyance, to which defendant entered his plea of guilty in exchange for dismissal of three permutations of section 288 felonies and the grant of probation conditioned on a jail term of less than 180 days. The offense subjected defendant to mandatory registration as a sex offender. (Pen. Code, § 290, subd. (c) [undesignated section references will be to this code].)
At the sentencing hearing (which went untranscribed because it was held on the misdemeanor calendar), defendant objected to the registration requirement on a basis not specified in the court's minutes. The court granted probation in accordance with the agreed disposition, imposing the registration requirement. Defendant filed a notice of appeal without requesting a certificate of probable cause (CPC).
Defendant's sole argument on appeal is that the mandatory registration requirement for child annoyance violates his right to equal protection because section 290 does not also include solicitation for prostitution within its ambit even though the proscribed conduct could be similar. We affirm the order granting probation.
Our resolution of the issue does not require consideration of the factual basis for defendant's plea. We thus omit it.
The People initially contend the constitutionality of defendant's registration requirement is not an issue cognizable on appeal because he did not obtain a CPC. This mandatory consequence of his guilty plea is not a negotiable element of his plea, and therefore a challenge to it is not tantamount to an attack on the validity of his plea that would otherwise be subject to a CPC prerequisite. (People v. Hernandez (2008) 166 Cal.App.4th 641, 647-648 [disapproved in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4, as to holding that challenge to registration requirement can be via postjudgment motion]; cf. People v. McClellan (1993) 6 Cal.4th 367, 380 [imposition of registration requirement did not violate terms of plea because it is not a subject of negotiation]; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2011 supp.), Criminal Appeal, § 16, p. 67.)
The right to equal protection under the law (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7), is the right to be treated similarly to those who are similarly situated. (People v. Jones (2002) 101 Cal.App.4th 220, 227; People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier).) One who claims a violation of this right therefore has the essential prerequisite of demonstrating that a legislative classification affects two or more similarly situated groups differently. (Hofsheier, supra, 37 Cal.4th at p. 1199; In re Randy J. (1994) 22 Cal.App.4th 1497, 1506.)
"Legislative classification is the act of specifying who will and who will not come within the operation of a particular law." (Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 32.)
As an initial matter, we note that the principles of equal protection do not apply where identical conduct is subject to prosecution under more than one statute, resulting in different punishments for different defendants. This is simply a function of prosecutorial discretion. (People v. Honan (2010) 186 Cal.App.4th 175, 183; People v. Taylor (2001) 93 Cal.App.4th 318, 323; see Manduley v. Superior Court ...