Filed 5/28/15 Quigley v. Super. Ct. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

JACK BARRY QUIGLEY,
                                                                                           F068812
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 12CECG04000)
                   v.

SUPERIOR COURT OF FRESNO COUNTY,                                                         OPINION
         Defendant and Respondent;

THE PEOPLE,

         Real Party in Interest and Respondent.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Carlos A.
Cabrera, Judge.
         Nuttall & Coleman and Roger T. Nuttall for Plaintiff and Appellant.
         No appearance for Defendant and Respondent.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Brian A. Segal, Deputy Attorneys General, for Real
Party in Interest and Respondent.

*        Before Levy, Acting P.J., Detjen, J. and Franson, J.
                                           -ooOoo-
        Appellant Jack Barry Quigley, entered a no contest plea to one misdemeanor count
of annoying or molesting a child. (Pen. Code,1 § 647.6, subd. (a).) In addition to jail
time and three years of probation, appellant was ordered to register for life as a sex
offender pursuant to section 290.
        Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), appellant
petitioned the trial court to be relieved of the lifetime sex offender registration
requirement as a violation of his right to equal protection of the laws. Based on People v.
Brandao (2012) 203 Cal.App.4th 436 (Brandao), the trial court denied the petition.
        The trial court properly denied appellant’s petition. The Brandao court’s
reasoning is sound. Further, unlike the defendant in Hofsheier, the defendant in Brandao
was convicted of the same offense as appellant. Moreover, the California Supreme Court
recently reexamined Hofsheier and, finding that Hofsheier’s constitutional analysis was
faulty, overruled its earlier opinion. (Johnson v. Department of Justice (2015) 60 Cal.4th
871.)
                                       DISCUSSION
        Section 647.6, subdivision (a), a misdemeanor offense, punishes “[e]very person
who annoys or molests any child under 18 years of age.” (§ 647.6, subd. (a)(1).) This
section does not require touching but requires conduct that a normal person would
unhesitatingly find irritating or annoying. (People v. Phillips (2010) 188 Cal.App.4th
1383, 1396.) Further, it is firmly established that the conduct must be motivated by an
unnatural or abnormal sexual interest in children in general or in a specific child. (Ibid.)
        By entering a no contest plea, appellant admitted every element of the crime
charged. (People v. DeVaughn (1977) 18 Cal.3d 889, 895; People v. Voit (2011) 200
Cal.App.4th 1353, 1364.) Therefore, contrary to appellant’s position, the trial court was

1       All further statutory references are to the Penal Code.


                                              2.
not required to make a specific finding that appellant’s conduct was motivated by an
unnatural or abnormal sexual interest in his victim. Appellant’s no contest plea admitted
this element of the offense.
       In Hofsheier, the 22-year-old defendant was convicted of voluntary oral
copulation with a minor who was 16 or 17 years of age under section 288a, subdivision
(b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1193.) This offense requires lifetime sex
offender registration under section 290. Under the federal and state equal protection
clauses, the Hofsheier court invalidated this mandatory sex offender registration because
a same-aged defendant convicted of unlawful sexual intercourse with a same-aged minor
is subject to discretionary registration. (Hofsheier, supra, at pp. 1206-1207.) The
Hofsheier court noted that the only difference between the two offenses is the nature of
the sexual act. (Id. at p. 1200.)
       In Brandao, the court refused to apply this analysis to a violation of section 647.6,
subdivision (a). The court noted that, while a section 647.6, subdivision (a) violation can
potentially involve conduct that is much less overtly sexual than the felony sex offenses
found subject to discretionary registration in Hofsheier, a conviction under section 647.6,
subdivision (a) requires conduct that would unhesitatingly irritate or disturb a reasonable
person. (Brandao, supra, 203 Cal.App.4th at p. 445.) Thus, the conduct is
distinguishable from Hofsheier-type offenses in that it does not take place between two
willing partners.
       Further, unlike the voluntary sex offenses examined in Hofsheier, section 647.6,
subdivision (a) is limited “to offenders whose conduct, in addition to being objectively
irritating and disturbing, is motivated by an unnatural or abnormal sexual interest in
children.” (Brandao, supra, 203 Cal.App.4th at p. 445.) This unique motivational
requirement sets section 647.6, subdivision (a) apart. Accordingly, the court held,
defendants convicted of annoying or molesting a child are simply not similarly situated to



                                             3.
those convicted of Hofsheier-type offenses. “Hence, the difference in treatment between
the two groups is neither arbitrary nor irrational.” (Brandao, supra, at p. 448.)
       The Brandao court’s reasoning is sound. Moreover, Hofsheier is no longer valid.
In Johnson v. Department of Justice, supra, 60 Cal.4th 871, the California Supreme Court
overruled Hofsheier and disapproved all of the Court of Appeal decisions that applied
Hofsheier’s rationale.
                                     DISPOSITION
       The judgment is affirmed.




                                             4.
