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The People v. Richard James Almeda

September 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD JAMES ALMEDA, DEFENDANT AND APPELLANT.



(Super. Ct. No. MCRDCRF090001590)

The opinion of the court was delivered by: Mauro , J.

P. v. Almeda

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

BACKGROUND

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 ...


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