APPEAL from a judgment of the Superior Court of Los Angeles County. William J. Fahey, Robert J. Schuitt, Patricia M. Schnegg, Judges. Affirmed. (Los Angeles County Super. Ct. No. BC464607)
The opinion of the court was delivered by: Chaney, J.
CERTIFIED FOR PUBLICATION
Appellant Stephen P. Shoemaker was convicted in 2004 of misdemeanor possession of child pornography and misdemeanor duplication of child pornography. His conviction was affirmed by the Superior Court Appellate Division on January 3, 2006, and his petition for certification to the Court of Appeal was denied.
Shoemaker filed this action in the Los Angeles Superior Court under the federal Civil Rights Act, 42 United States Code section 1983, alleging that the mandatory sex-offender registration requirements of Penal Code section 290 deny him equal protection of the laws because they subject him to mandatory lifetime registration, although others convicted of far more egregious sex crimes involving minors are subject only to discretionary registration under Penal Code section 290.006. Upon respondent's demurrer, the superior court ruled that the claim could not be heard as a civil action, and on that basis it transferred the case to a criminal trial court where it was construed as a petition for writ of habeas corpus and was denied on its merits.
Appealing from these rulings, Shoemaker asks that we find the superior court erred in refusing to hear his civil rights action, that we find that application to him of the mandatory registration requirement of Penal Code section 290 violates his right to equal protection of the laws, and that we remand the matter for a determination by the trial court whether he should be required to register under the discretionary registration provisions of Penal Code section 290.006. In the alternative, he asks that we treat his appeal as a petition for writ of habeas corpus directed to this court, and grant his requested relief on that basis. We affirm.*fn1
Shoemaker's Conviction of Misdemeanor Offenses
Shoemaker was a long-time resident of the City of Redondo Beach, and a prominent member of its business community. In 1998 the Redondo Beach police executed a search warrant at one of his business addresses, finding three computer servers containing some thousands of photographic images. The police seized two dozen of these images on suspicion that they might be obscene or might depict underage subjects. Searches at other businesses and residences owned by Shoemaker resulted in no additional seizures.
Shoemaker and his office manager were charged with over two dozen counts of misdemeanor possession, duplication, or distribution of pornographic or obscene matter. (§§ 311.1, subd. (a), 311.2, subd. (a), 311.3, subd. (a), 311.9, subd. (a), 311.11, subd. (a).) The trial court dismissed eight of the possession counts, as well as the single count that charged him with distributing or publishing obscene matter.
None of the seized images were found to be obscene. The jury acquitted Shoemaker of three counts of possession of child pornography, and failed to reach a verdict as to three other counts of possession. However, it convicted him of eight misdemeanor counts of possession of child pornography in violation of section 311.11, for knowing possession of images with knowledge that they depict minors personally engaging in or simulating sexual conduct; and it convicted him of one misdemeanor count of duplicating child pornography in violation of section 311.3, for knowing duplication of an image that depicts a minor engaged in sexual conduct. Shoemaker was not convicted of distributing or displaying any child pornography. His convictions were based solely on his private possession and private duplication (by transfer from one office computer to another) of images that the jury found to be non-obscene child pornography.*fn3
Shoemaker was sentenced to 36 months of probation and a fine of $17,000. As a condition of probation, he was ordered to serve two concurrent 90-day terms in custody and to complete a one-year sexual compulsiveness counseling program. On January 3, 2006, the Appellate Division of the Superior Court affirmed his conviction in a memorandum judgment.*fn4
Pursuant to the mandatory registration requirements of the Sex Offender Registration Act, Shoemaker was required, and continues to be required for the remainder of his life, to register as a sex offender. (§§ 290, 3003.5.)*fn5
Shoemaker's Civil Action Under Section 1983 (Case No. BC464607)
On June 30, 2011, Shoemaker filed an action in the Los Angeles Superior Court, under section 1983, alleging that the mandatory sex-offender registration requirement of section 290 denies him equal protection of the laws under both the federal and state Constitutions. (Shoemaker v. Kamala Harris, Super. Ct. L.A. County, No. BC464607.) Shoemaker's civil complaint contended that the mandatory registration requirement subjects him and others convicted of misdemeanor child pornography offenses under sections 311.11 and 311.3 to mandatory lifetime registration, but that the law subjects others, who are convicted of far more egregious sex crimes against minors, only to discretionary registration under section 290.006. His action sought a declaration that the mandatory registration requirement of section 290 violates the 14th Amendment to the United States Constitution, article I, section 7(a) of the California Constitution, and section 1983; it sought an order vacating the mandatory registration requirement, and removing his name from the sex-offender registry; it sought an order directing the court in his criminal case to exercise its discretion under section 290.006 to determine whether, and under what conditions, Shoemaker should be required to register as a sex offender;*fn6 and it sought attorney fees and costs pursuant to 42 United States Code section 1988.
Respondent demurred, seeking dismissal of the complaint on the ground that the superior court lacked subject-matter jurisdiction, "because the relief Plaintiff seeks may only be had by way of petition for writ of mandamus or habeas corpus . . . ." Shoemaker filed an opposition to the demurrer, and respondent filed a reply.
On September 23, 2011, the court (Dept. 78, William F. Fahey, Judge), heard argument on the demurrer, taking the matter under submission in anticipation of a stipulation to transfer the case to a criminal law department. However, there was no stipulation.*fn7
On October 3, 2011 the court in Department 78 nevertheless transferred the case to a criminal law department. Without addressing the complaint's request for declaratory relief, the court held that it could not grant the secondary relief sought by Shoemaker's action: "This Court does not sit as a quasi-appellate court with the power to direct a sister court as to its discretionary powers. As a matter of comity, this Court declines to exercise its theoretical jurisdiction over this dispute." The court in Department 78 transferred the action to Department 127, the criminal department in which Shoemaker had been sentenced.
Civil Action Is Treated As Habeas Corpus Petition (Case No. 9SB04308)
On October, 18, 2011, case No. 9SB04308 was called "for habeas corpus petition" in Department 500 of the Superior Court, Patricia M. Schnegg, Judge. Department 500's October 18, 2011 minute order recites that on October 7, 2011, Shoemaker's civil action (case No. BC464607) had been transferred to Department 500, a criminal law department, "under its original criminal case number 9SB04308."*fn8
The court in Department 500 reviewed respondent's demurrer, Shoemaker's opposition, and respondent's reply. Its order finds that Shoemaker's claim is not the proper subject of a civil complaint under section 1983, because that law cannot be used to call into question the legality of his conviction or confinement; it finds that "habeas corpus is the proper vehicle for raising these claims" and his complaint would be treated as a habeas corpus petition; and it finds that habeas corpus would be denied, because Shoemaker's mandatory sex offender registration requirement "does not violate his right to equal protection of the laws under the California Constitution."
Shoemaker's Application For Entry Of Judgment (Case No. BC464607)
On November 3, 2011, Shoemaker filed an application for entry of judgment in his civil action, case No. BC464607. His application alleged the filing of his civil action, the action's transfer to a criminal law department, the criminal court's denial of habeas corpus in case No. 9SB04308, and his need for a formal judgment in the civil action in order to obtain appellate review of the court's treatment of the action as a petition for writ of habeas corpus.
According to the Department 500 minute order, on December 7, 2011, "[t]he court staff has informed petitioner's counsel that the criminal courts do not have access to the civil case management computer system and are unable to enter any form of judgment in a civil case matter [sic]." Upon Shoemaker's expression of an intention to file the application for entry of judgment in the civil division of the court, under the civil case number, the court in Department 500 transferred the matter to Department 127 "for further proceedings."
On December 18, 2011, Shoemaker again filed his application for entry of judgment in case No. BC464607 (attaching the minute orders reflecting Department 500's refusal to enter judgment), along with a [Proposed] Judgment in favor of defendant Kamala Harris and against plaintiff Stephen P. Shoemaker.*fn9 The record reflects no ruling on that application.*fn10
Shoemaker filed his notice of appeal in case No. BC464607 on December 19, 2011. He asks this court (1) to reverse the trial court's dismissal of his complaint; (2) to declare that mandatory registration under section 290 violates his right to equal protection; and (3) to remand the case with directions to the superior court to exercise its discretion under section 290.006 to determine whether he should be required to continue registering as a sex offender. Respondent does not object to this court hearing the merits of Shoemaker's equal protection claim, but suggests that the claim should be treated as a new petition for writ of habeas corpus directed to this court, rather than as an appeal from the superior court rulings. (See In re Crow (1971) 4 Cal.3d 613, 621, & fn. 8 [superior court's denial of habeas corpus relief is not appealable, but is subject to new petition in higher court].)
We conclude that Shoemaker's equal protection claim should be denied on its merits, without regard to its procedural form--either a petition for writ of habeas corpus, or an appeal from orders having the effect of dismissing Shoemaker's civil action after sustaining respondent's demurrer ...