IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn)
June 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MACIEJ WIESLAW LATA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09NCR07158)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Lata
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (2002) 27 Cal.4th 537, 569-570, citing United States v. Batchelder (1979) 442 U.S. 114 [60 L.Ed.2d 755].)
The People make a misdirected effort of establishing that the class identified in Hofsheier, supra, 37 Cal.4th 1185, and the body of case law it spawned regarding registration requirements for various non-coercive sexual acts involving minors over the age of 14, is not similarly situated to defendant. These cases in fact are not applicable to sex offenses with children under the age of 14 (People v. Alvarado (2010) 187 Cal.App.4th 72, 77; People v. Kennedy (2009) 180 Cal.App.4th 403, 410-411), but other than cite the general principle of equal protection, defendant does not purport to compare his offense with Hofsheier and its progeny. Rather, he contends that mandatory registration for annoying a minor with words under section 647.6, subdivision (a), violates equal protection because registration would not have been mandatory had he solicited the minor to commit an act of prostitution in violation of section 647, subdivision (b), which he argues is substantially similar conduct involving mere words.
The People assert the two groups defendant identifies do not involve similarly situated defendants, because section 647.6, subdivision (a), has the element of "abnormal or unnatural" sexual interest in children. There is a more fundamental problem, however. The differently treated groups on which defendant relies do not exist as the result of legislative classification. They are the creatures of defendant's line drawing. Section 647.6, subdivision (a), includes all conduct that objectively and unhesitatingly would be seen as irritating or disturbing to a normal person, and that is motivated by an unnatural or abnormal sexual interest in the victim. (People v. Lopez (1998) 19 Cal.4th 282, 289-290.) Section 647.6, subdivision (a), thus aims at a spectrum of conduct beyond mere words involving a particularly vulnerable group, and it is distinct from the focus in section 647, subdivision (b), solicitation for prostitution, that is, for a sexual act for compensation. We have found no authority (nor does defendant provide any) under which defendant can craft his own classifications, based on the facts of his own case, that do not reflect a statutory distinction in arguing there is a violation of the right to equal protection. (Cf. In re J.P. (2009) 170 Cal.App.4th 1292, 1299 [comparison of statutory elements of offenses involved and not specific facts of defendant's case is pertinent inquiry for equal-protection analysis].) That the Legislature did not exclude minors from the solicitation for prostitution statute does not offend the constitutional principle of equal protection, because it does not require mathematical perfection in classifications. (In re Kimbler (1979) 100 Cal.App.3d 453, 459.) Defendant has therefore failed to establish the existence of a legislative classification establishing similarly situated groups subject to disparate treatment.
The judgment is affirmed.
We concur: ROBIE , J. MAURO , J.
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