APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. (Super.Ct.No. RIF1100957)
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Pursuant to a plea bargain, defendant Librado Gonzalez pleaded guilty to one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)) and was placed on probation for three years.
Prior to sentencing, defendant filed a motion arguing that the requirement that he register as a sex offender violated equal protection because such a requirement did not apply to persons convicted of statutory rape. The trial court denied the motion. It then placed defendant on probation, on conditions including that he not work anyplace where minors are present.
In the published portion of this opinion, we will hold that imposing a mandatory sex offender registration requirement on persons convicted of possession of child pornography but not on persons convicted of statutory rape does not violate equal protection.
In the unpublished portion of this opinion, we will hold that two probation conditions must be modified. Accordingly, we will affirm the judgment as modified.
I MANDATORY SEX OFFENDER REGISTRATION FOR PERSONS CONVICTED OF POSSESSION OF CHILD PORNOGRAPHY BUT NOT PERSONS CONVICTED OF STATUTORY RAPE
Defendant contends that the application of the mandatory sex offender registration requirement to persons, like him, convicted of possession of child pornography (Pen. Code, § 311.11), but not to persons convicted of statutory rape (Pen. Code, § 261.5), violates equal protection.
He relies on People v. Hofsheier (2006) 37 Cal.4th 1185, which held that the application of a mandatory sex offender registration requirement to persons convicted of oral copulation of a minor aged 16 or 17 (Pen. Code, § 288a, subd. (b)(1)), but not to persons convicted of statutory rape of a minor aged 16 or 17, violated equal protection. (Hofsheier, at p. 1207.)
As Hofsheier explained, "'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.]" (People v. Hofsheier, supra, 37 Cal.4th at p. 1199.) The court applied the rational relationship test, which asks whether "'"'there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification], "our inquiry is at an end."'"' [Citations.]" (Id. at pp. 1200-1201, italics omitted.) It found "no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of 'particularly incorrigible offenders' [citation] who require lifetime surveillance as sex offenders." (Id. at pp. 1206-1207.)
Significantly, Hofsheier did not compare all oral copulation of a minor to all statutory rape. In the defendant's case, the oral copulation had been "voluntary" -- i.e., it was not against the will of the victim and it was not accomplished by force, fear, or duress. (People v. Hofsheier, supra, 37 Cal.4th at p. 1193.) Also, in the defendant's case, the victim had been 16. (Id. at pp. 1192-1193.) The court proceeded to refer to the defendant's crime as voluntary oral copulation of a minor aged 16 or 17 (id. at pp. 1192, 1194) and to compare that crime to voluntary statutory rape of a minor aged 16 or 17 (id. at pp. 1202-1207).
It explained, "Although section 288a(b)(1) applies to all acts of oral copulation with a person under the age of 18, other provisions provide for greater punishment for involuntary acts and acts involving younger victims. Thus, section 288a, subdivision (b)(2), provides that a person over 21 years of age who engages in oral copulation with someone younger than 16 years of age is guilty of a felony, and subdivision (c)(1) provides for still greater punishment -- three to eight years' imprisonment -- for anyone who engages in oral copulation with someone under the age of 14 who is more than 10 years younger than the defendant. Other subdivisions specify imprisonment of three to eight years for forcible or involuntary oral copulation. (§ 288a, subds. (c)(2) & (3), (f).) And section 288 provides that any lewd or lascivious act (including oral copulation) with a child under the age of 14 is a felony punishable by three to eight years' imprisonment. Consequently, section 288a(b)(1) functions as the primary offense (as opposed to being a lesser included offense) . . . when, as here, the act of oral copulation is voluntary and the victim is 16 or 17 years old . . . ." (People v. Hofsheier, supra, 37 Cal.4th at pp. 1194-1195.)
As a result, in Hofsheier, the two crimes being compared were absolutely identical, except in one respect. They both prohibited a form of voluntary sexual conduct with a minor aged 16 or 17; the only difference was that one prohibited sexual intercourse, while the other prohibited oral copulation. The Supreme Court found nothing significantly distinguishing these two forms of sexual conduct, other than the possibility of pregnancy (People v. Hofsheier, supra, 37 Cal.4th at p. 1205), which, if anything, would militate in favor of applying the registration requirement to statutory rape and not to oral copulation. It therefore concluded that the legislative distinction had no rational basis.
Defendant argues that the present distinction between possession of child pornography and statutory rape is similarly irrational, because a person who actually engages in voluntary sexual intercourse with a child is not subject to the mandatory registration requirement, yet a person who merely possesses a photo of that act is. However, the possession of child pornography is distinct from statutory rape in multiple respects on which the Legislature could rationally rely.
First, child pornography is inherently capable of being copied or duplicated. A single act of statutory rape is just that -- a single act. However, a single act of possession of child pornography is usually the product of a chain of acts, starting with the creation of the offending image, followed by the creator's initial reproduction and transmission of the image, often followed by "peer-to-peer" reproduction and transmission of the image. And even if the item of child pornography has never been reproduced before, it has the potential to be the beginning of such a chain, as minors who "sext" have discovered, to their regret. (See Hoffman, A Girl's Nude Photo, and Altered Lives, N.Y. Times (Mar. 26, 2011).)*fn2 Thus, the child is subject to being constantly revictimized.
It could be argued that statutory rape is also likely to be repeated, if the offender and the victim have a relationship. In that event, however, the offender can be prosecuted on multiple counts of statutory rape. By contrast, it is usually impracticable to prosecute everyone involved in creating, duplicating, and transmitting a single item of child pornography. The Legislature could rationally take the position that an offender convicted of possession of child ...