IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
September 13, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD JAMES ALMEDA, DEFENDANT AND APPELLANT.
(Super. Ct. No. MCRDCRF090001590)
The opinion of the court was delivered by: Mauro , J.
P. v. Almeda
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Richard James Almeda pleaded guilty to possession or control of child pornography. (Pen. Code, § 311.11, subd. (a); undesignated statutory references are to the Penal Code.) The plea form advised him that he would be required to register as a sex offender under section 290.
Defendant contends it violates equal protection to impose mandatory sex offender registration for possession or control of child pornography, when only discretionary sex offender registration is imposed for a violation of section 261.5 [unlawful sexual intercourse with a person under 18] or 288a, subdivision (b)(1) [oral copulation with a person under 18]. Defendant argues he is similarly situated with defendants convicted of those other crimes for purposes of section 290 registration "because all three offenses concern sexual conduct involving minors as victims," and there is no rational basis to impose mandatory registration for a crime that did not involve sexual contact with a minor.
We conclude defendant is not similarly situated to a defendant charged with sexual intercourse with a minor or oral copulation with a minor. Section 311.11 prohibits a different type of conduct and addresses a different threat to minors. Accordingly, the imposition of mandatory sex offender registration in this case does not implicate the equal protection clause.
Defendant also contends that some of his conditions of probation are unconstitutional because they do not include a knowledge requirement. We agree. We will modify the order of probation and affirm the judgment as modified.
At a community college computer lab, staff observed defendant viewing child pornography Web sites and advised law enforcement. At law enforcement's request, staff kept a record of the sites defendant viewed over a two-week period. The child pornography Web sites showed young children nude or in underwear. They also showed nude or nearly nude adults and adults engaging in sexual conduct. Spanking was a primary theme of the Web sites and one minor had possible whip marks on the buttocks.
Defendant entered a negotiated plea of guilty to possession or control of child pornography (§ 311.11, subd. (a))*fn1 in exchange for no state prison at the outset, a lid of 180 days in county jail as a condition of probation, and the dismissal of another count in this case and another charge in an unrelated case.
At sentencing, defense counsel argued that sex offender registration should not be mandatory, citing People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). The trial court disagreed, suspended imposition of sentence and granted probation subject to certain terms and conditions including mandatory sex offender registration.
Defendant contends that mandatory sex offender registration denies him equal protection because its application results in disparate treatment between him and similarly situated persons, and there is no rational basis for such disparate treatment.
"'"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." [Citation.]'" (People v. McKee (2010) 47 Cal.4th 1172, 1218-1219, quoting Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; Hofsheier, supra, 37 Cal.4th at pp. 1199-1200.)
"'"'The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]'"' [Citations.] In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. (See Stats. 1996, ch. 908, § 1, subd. (b), p. 5105.)" (Hofsheier, supra, at p. 1196.) However, only the sex offenses specified in section 290, subdivision (c) require mandatory registration. All other sex offenses are subject to registration at the sentencing court's discretion "if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (§ 290.006.)
Thus, it appears that the purpose of the mandatory registration statute is to enable the police and the public to keep track of sex offenders that the Legislature considers unable to control their sexual impulses and are more likely to present a danger to the public.
In Hofsheier, supra, 37 Cal.4th 1185, the California Supreme Court found the mandatory lifetime sex offender registration requirement of section 290 unconstitutional as it applied to a defendant who had been convicted of oral copulation of a minor. (Id. at pp. 1192, 1194-1196; § 288a, subd. (b)(1).) The defendant in Hofsheier was a 22-year-old man who had engaged in "voluntary" oral copulation with a 16-year-old girl. (Id. at pp. 1192-1193.) The high court used "the term 'voluntary' in a special and restricted sense to indicate that the minor victim willingly participated in the act and to the absence of various statutory aggravating circumstances: the perpetrator's use of 'force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person' (§ 288a, subd. (c)(2)); the perpetrator's 'threatening to retaliate in the future against the victim or any other person' (§ 288a, subd. (c)(3)); and the commission of the act while the victim is unconscious (§ 288a, subd. (f)) or intoxicated (§ 288a, subd. (i))." (Hofsheier, supra, at p. 1193, fn. 2.)
The 22-year-old defendant contended that he was similarly situated to a defendant charged with voluntary unlawful sexual intercourse with a 16- or 17-year-old minor (§ 261.5, subd. (c)), an offense that did not require mandatory registration. The Supreme Court compared the two statutes in question, noting that "both section 288a and section 261.5 follow a pattern of imposing greater punishment on offenses involving younger victims . . . ." (Hofsheier, supra, 37 Cal.4th at p. 1195.) The court also stated, "We are not here concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse. (See §§ 264 [rape], 288 [lewd or lascivious acts with victim under the age of 14], 288a, subd. (c)(1) [oral copulation with a minor under 14 years of age], 288a, subd. (c)(2) [forcible oral copulation], 290, subd. (a)(2) [convictions requiring registration].)" (Hofsheier, at p. 1198.)
The Supreme Court in Hofsheier observed that "section 288a(b)(1) and section 261.5 both concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors 'are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.' [Citation.]" (Id. at p. 1200.)
The Supreme Court in Hofsheier concluded there was no rational basis for the disparate treatment (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207), and thus the defendant in that case established a violation of equal protection. (Id. at pp. 1201, 1207.)
Unlike the defendant in Hofsheier, in this case defendant is not similarly situated to defendants convicted under sections 261.5 or 288a, subdivision (b)(1). Although defendant argues this case is similar to the voluntary sexual conduct discussed in Hofsheier because there is no evidence that the children depicted in the child pornography were coerced, the record in this case indicates that one of the pornographic images defendant viewed involved a naked, two-year-old boy who was "spread[-]eagle," and there were other images of children being spanked. We do not consider the involvement of a two-year-old as similar to the voluntary conduct of the 16-year-old victim in Hofsheier. (See Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2.)
Sections 261.5 and 288a make distinctions based on the age of the perpetrator and the age of the victim, recognizing that a voluntary sexual act between a 19 year old and his 17-year-old girlfriend should be treated differently than a sexual act between a 35 year old and a 13 year old. But there are no such distinctions based on age or use of force included in section 311.11.*fn2 (See also §§ 311.1, 311.2, subds. (b), (c), (d), 311.3, 311.4, 311.10.) There is no lesser penalty or other statutes that apply when the minor is under 18 but over 14, or when force is not used. This indicates that the Legislature does not view pornography involving older children to be any less serious than pornography involving younger children. In fact, section 311.11 previously applied only to the possession of child pornography depicting children under the age of 14 but the Legislature increased the age to 18 in 1994. (Stats. 1994, ch. 55, § 4, pp. 436-437.) The author of the bill submitted that only children under 14 were protected by child pornography laws and it was necessary to raise the age to 18 to afford greater protection.
Thereafter, the voters passed Proposition 83, which increased a violation of section 311.11 from a public offense to a felony. (Initiative Measure, Prop. 83, § 8, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Section 2 of the initiative measure provides in part: "(c) Child pornography exploits children and robs them of their innocence. FBI studies have shown that pornography is very influential in the actions of sex offenders. Statistics show that 90% of the predators who molest children have had some type of involvement with pornography. Predators often use child pornography to aid in their molestation. [¶] (d) The universal use of the Internet has also ushered in an era of increased risk to our children by predators using this technology as a tool to lure children away from their homes and into dangerous situations. Therefore, to reflect society's disapproval of this type of activity, adequate penalties must be enacted to ensure predators cannot escape prosecution." (See Historical and Statutory Notes, 48 West's Ann. Pen. Code (2008 ed.) foll. § 311.11, p. 536.)
This legislative history indicates that a possessor of child pornography is not similarly situated to someone who violates sections 261.5 or 288a, subdivision (b)(1). The criminalization of voluntary unlawful sexual intercourse is designed to prevent, among other things, an increase in teenage pregnancies, and to hold adult males responsible for their conduct in contributing to the increase in teenage pregnancies. (Stats. 1996, ch. 789, § 2, p. 4161.) But section 311.11 seeks to protect children from predatory behavior.
We conclude that persons convicted of section 311.11, subdivision (a) are not similarly situated to those convicted of sections 261.5 or 288a, subdivision (b)(1). Accordingly, it is not necessary for us to apply a level of scrutiny. We reject defendant's equal protection claim.
Defendant next contends that three conditions of probation are unconstitutionally vague and overbroad, requiring modification to include a knowledge requirement. We agree.
The challenged conditions are as follows:
"12. That [defendant] not contact, attempt to contact, or be in the company of any child under the age of eighteen years unless accompanied by a responsible adult who is approved by the Probation Officer;
"13. That [defendant] shall not be on any school campus or within a 200 yard radius of any school campus unless enrolled or with prior administrative permission from school authorities;
"14. That [defendant] is not to be in places where minors congregate, or schools and other locations especially designated for use by minors unless approved by the Probation Officer[.]"
Without the knowledge requirement, defendant argues that he could violate condition No. 12 by being in the company of a person who is under the age of 18 years without being aware of the person's age, condition No. 13 by being within 200 yards of a school campus without being aware of the school's location, and condition No. 14 by being in a place of business such as a pizza parlor without being aware that minors congregate there.
The People agree that condition No. 12 requires a knowledge requirement, but they argue that condition Nos. 13 and 14 are not overbroad or vague without a knowledge requirement. With respect to condition No. 13, the People note that section 626.81 prohibits a registered sex offender from being on school grounds. With respect to condition No. 14, the People argue that the places are specifically described and include places like a Chuck E Cheese play area, a playground, a day care center, and a park with play areas, and exclude places like a public library.
We conclude that defendant has the better argument. We also note that after the parties submitted their briefs, this court filed People v. Patel (2011) 196 Cal.App.4th 956 (Patel), as modified on denial of rehearing on July 19, 2011. Patel held that this court will no longer entertain this recurring issue on appeal, and construed every probation condition proscribing presence, possession, association or other similar action to include the requisite knowledge. (Id. at p. 960.) We will order all three conditions modified to include a knowledge requirement.*fn3
The order of probation is modified as follows:
12. That defendant not contact, attempt to contact, or be in the company of any child defendant knows (or reasonably should know) is under the age of eighteen years unless accompanied by a responsible adult who is approved by the Probation Officer.
13. That defendant shall not knowingly be on any school campus or knowingly within a 200 yard radius of any school campus unless enrolled or with prior administrative permission from school authorities.
14. That defendant is not to be in places where he knows (or reasonably should know) minors congregate, or schools and other locations defendant knows (or reasonably should know) are especially designated for use by minors unless approved by the Probation Officer.
As modified, the judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.