Superior Court of San Mateo County, No. SC045935, Mark R. Forcum, Judge.
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
(San Mateo County Super. Ct. No. SC045935)
In 1999, defendant George Christopher Tuck was 19 years old and, for engaging in sexual relations with his then 13-year-old girlfriend, by a plea of no contest was convicted of committing lewd acts on a child under the age of 14. (Pen. Code, § 288, subd. (a).)*fn1 Now, more than 12 years later, he seeks to be relieved of the lifetime requirement that he register as a sex offender, arguing that this requirement violates his right to equal protection of the law. After considering uncontradicted evidence that Tuck poses no threat of engaging in future sexual misconduct, the trial court stated that it would have preferred to grant him relief but denied his petition for a writ of mandate because it could find no legal authority empowering the court to strike the registration requirement. We agree with the trial court that the equal protection analysis adopted in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) does not support the conclusion that the mandatory registration requirement for the violation of section 288, subdivision (a) denies the offender equal protection. However, we call attention to the possibility that provisions of the Penal Code that would prohibit Tuck from applying for a certificate of rehabilitation and being relieved of the registration requirement may violate equal protection principles.
In 1999, Tuck was charged by information with 10 counts of committing a lewd and lascivious act on a child under the age of 14 between October 1, 1997, and January 23, 1998. (§ 288, subd. (a).)*fn2 Tuck was 19 years old at the time and the charges stemmed from consensual activities with his girlfriend who was then a few months shy of 14. Tuck entered a plea of no contest to one count and the remaining counts were dismissed. The court suspended imposition of sentence and placed Tuck on supervised probation for five years. He was required to serve one year in jail as a condition of probation and was ordered to register as a sex offender pursuant to section 290. He successfully completed the terms of his probation.
On August 13, 2010, following the procedure set forth in People v. Picklesimer (2010) 48 Cal.4th 330, Tuck filed a petition for a writ of mandate to set aside the order requiring him to register as a sex offender for life. At an evidentiary hearing, testimony was presented from Dr. James Missett, a psychiatrist and an expert on evaluating people charged with sexual offenses. Dr. Missett examined Tuck in 1999 when the charges were originally filed and conducted another evaluation in November 2010. He evaluated Tuck's behavior over the past 11 years and looked for any indications that he "may have problems with impulse control or with interests that might have him constitute a danger to the health and safety of others."According to Dr. Missett, Tuck has "matured considerably since I had first seen him 11 years earlier. And I was struck by . . . the closeness with which he appears to have followed the rules that were laid down for him starting with his time in jail, going on to his having no problems with his probationary period, his having remained gainfully employed, his having kept himself away from minors, and essentially acting in a way in which we would expect and hope that he would act."
Dr. Missett opined that at the time of the offenses, Tuck's "focus was on having a sense of being liked, getting along with others, being dependent, excessively dependent on others, acting really at an age, a psychological age that was considerably less than his chronological age, so he was acting like a 15-year-old or 16-year-old might be expected to act or think rather than someone who was two, three, four years older than that." Dr. Missett concluded that Tuck was not fixated on young girls, and that he did not have problems with drugs, alcohol or impulse control.
Tuck testified that while serving a year in jail as a term of his probation he completed his GED and assisted other inmates in completing their GEDs. He paid approximately $11,400 in fines and restitution that were ordered as part of his probation. He also participated in sex offender counseling for the entire period of his probation. He obtained employment while on probation and continues to be employed. He has lived with a 41-year-old girlfriend for two years and plans to marry and have children. He asked that the court relieve him of the registration requirement "so that when my children come of age I'm able to participate in things like . . . taking them to a baseball game, to their little league games, to be able to take them to birthday parties where they and the parents are going to participate in birthday activities, and it would be difficult for me to be able to do that as an offender."
At the conclusion of the evidentiary hearing, the trial court stated, "I'm very impressed by what Mr. Tuck has done since his conviction. My only question, and it's a fundamental one is, is there a case that says that I can relieve him of that obligation in this context. And it sounds like . . . these two, [People v.] Alvarado [(2010) 187 Cal.App.4th 72] and [People v.] Anderson [(2008) 168 Cal.App.4th 135], don't give me that discretion." Ultimately, the trial court explained, "I've struggled over this issue because it appears to me that Mr. Tuck has done a lot of good things since the conviction. He's accepted responsibility. He maintains his treatment regimen. Dr. Missett testified he's not a pedophile and he's not dangerous. And I put a lot of weight in Dr. Missett's evaluations. He's an outstanding psychiatrist. But I can't find a case that supports the extension of the Hofsheier logic to this set of facts. And I've looked for one and I've read these other cases to see if there's a way to distinguish them in any way . . . . So I feel on a personal level I would like to grant your motion . . . and see the relief given to Mr. Tuck, but I can't find a legal way to do it. . . . So, reluctantly, I'm denying this motion. So you have a good record, though . . . and I would invite you to take this issue higher and if there's any record where the law should ever be changed this is probably that record in terms of the background of Mr. Tuck."
Following initial briefing in this court, we requested and received supplemental briefing on the following issues: "1. Assuming that the court concludes that the mandatory registration requirement that applies to persons convicted of violating . . . section 288, subdivision (a) (§ 290, subd. (c)) does not violate defendant George Christopher Tuck's right to equal protection of the laws, do the provisions of sections 290.5, subdivision (a)(2) and 4852.01, subdivision (d), which deny defendant the right to petition for and obtain a certificate of rehabilitation for such a violation and be relieved of the registration requirement, violate his right to equal protection? What is the significance, if any, of the fact that persons convicted of violating section 288.7, of violating section 187 in the perpetration or attempt to perpetrate any act punishable under section 288, or of violating section 311.4, subdivisions (a) and (f) may obtain a certificate of rehabilitation and be relieved of the registration requirement? (§§ 290.5, subd. (a)(1), 4852.01, subd. (a).) [¶] 2. If the provisions of sections 290.5, subdivision (a)(2) and 4852.01, subdivision (d) violate defendant's right to equal protection, what is the appropriate remedy?"
In the trial court Tuck advanced several theories under which he contended the registration requirement should be stricken. He argued, and continues to argue, that the mandatory requirement that he register as a result of his conviction under section 288, subdivision (a) (lewd act on a child under the age of 14) violates the constitutional guarantee of equal protection under the holding in Hofsheier and several cases that have followed it. He also contends that the requirement should be stricken in the interest of justice under section 1385, that the requirement constitutes cruel and unusual punishment, and that he should have been permitted to conduct discovery to establish that his prosecution under section 288, subdivision (a) rather than under another section not requiring mandatory registration constituted unlawful discriminatory prosecution.
Because principles of judicial restraint require us to rely on non-constitutional grounds if possible (People v. Pantoja (2004) 122 Cal.App.4th 1, 10), we first ...