Filed 7/7/16 P. v. Salazar 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F070281
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. FP004047A)
                   v.

ANDREW MICHAEL SALAZAR, JR.,                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Harry A.
Staley, Judge.
         Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kerry
Ramos, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J. and Smith, J.
          Appellant Andrew Michael Salazar, Jr., appeals from the trial court’s denial of his
request to terminate his lifetime sex offender requirement. We affirm.
                                             FACTS
          In 1994, Salazar was convicted in Kern County Superior Court of rape by force or
fear (Pen. Code § 261, subd. (2)),1 false imprisonment (§ 236), and spousal abuse
(§ 273.5, subd. (a)), and sentenced to an eight-year prison term.
          On August 24, 1999, Salazar was arrested for a parole violation and subsequently
committed to prison to finish serving a term on the violation.
          On June 30, 2000, Salazar was convicted of misdemeanor infliction of corporal
injury on a spouse and subsequently returned to prison to serve a term for violating his
parole.
          On June 13, 2001, Salazar was released on parole.
          On July 25, 2001, Salazar was arrested for violating his parole and subsequently
returned to prison to finish a term on the violation.
          On August 4, 2002, Salazar was discharged from parole.
          On June 30, 2014, Salazar filed a petition for a certificate of rehabilitation and
pardon pursuant to section 4852.01 asking the court to issue a certificate of rehabilitation,
a recommendation to the Governor for a full pardon, and an order relieving him from sex
offender registration requirements (§§ 290-290.46) and removing his picture and
information from the Internet. In the moving papers, Salazar contended that his right to
the equal protection of the law would be violated if his lifetime sex offender registration
and the publishing of his picture and information on the Internet were not terminated.
          On August 15, 2014, at a hearing on Salazar’s petition, the court took the matter
under submission. Later that day, it issued an order granting Salazar’s petition for a
certificate of rehabilitation and pardon and denying his request to be relieved of his

1         All further statutory references are to the Penal Code.


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obligation to register as a sex offender and to have his photo and information removed
from the Internet.
                                       DISCUSSION
        Salazar contends that section 290.5 subdivision (a) violates equal protection
principles of the state and federal Constitutions because it prohibits offenders who have
been convicted of rape in violation of section 261, subdivision (a)(2) (rape by force,
violence, duress, menace, or fear) from being relieved of the requirement to register as
sex offenders while permitting defendants convicted of rape in violation of section 261,
subdivision (a)(7) (rape by threat to use public authority to incarcerate, arrest, or deport)
to be relieved of this requirement. He also requests that this court remand this matter to
the trial court so that it may terminate his lifetime duty to register as a sex offender.
There is no merit to Salazar’s equal protection claim.
        “When a law is challenged as a violation of equal protection, we consider whether
it affords different treatment to similarly situated persons. [Citation.] Unless the law
treats similarly situated persons differently on the basis of race, gender, or some other
criteria calling for heightened scrutiny, we review the legislation to determine whether
the legislative classification bears a rational relationship to a legitimate state purpose.
[Citation.] If so, it will be upheld.” (People v. Moreno (2014) 231 Cal.App.4th 934,
939.)

        Section 290.5, in pertinent part, provides:

                “(a)(1) A person required to register under Section 290 for an
        offense not listed in paragraph (2), upon obtaining a certificate of
        rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of
        Title 6 of Part 3, shall be relieved of any further duty to register under
        Section 290 if he or she is not in custody, on parole, or on probation.

                “(2) A person required to register under Section 290, upon obtaining
        a certificate of rehabilitation under Chapter 3.5 (commencing with Section
        4852.01) of Title 6 of Part 3, shall not be relieved of the duty to register
        under Section 290, or of the duty to register under Section 290 for any


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offense subject to that section of which he or she is convicted in the future,
if his or her conviction is for one of the following offenses: [¶] . . . [¶]

      “(D) Paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section
261. [¶] . . . [¶]

        “(b)(1) . . . a person described in paragraph (2) of subdivision (a)
shall not be relieved of the duty to register until that person has obtained a
full pardon as provided in Chapter 1 (commencing with Section 4800) or
Chapter 3 (commencing with Section 4850) of Title 6 of Part 3.”

Section 261, in pertinent part, provides:

          “(a) Rape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator, under any of the following circumstances:
[¶] . . . [¶]

       “(2) Where it is accomplished against a person’s will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another. [¶] . . . [¶]

       “(7) Where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate, arrest, or
deport the victim or another, and the victim has a reasonable belief that the
perpetrator is a public official. . . .”
Section 290, in pertinent part, provides:

        “(b) Every person described in subdivision (c), for the rest of his or
her life while residing in California, or while attending school or working
in California, . . . shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if he or she is
residing in an unincorporated area or city that has no police department,
and, additionally, with the chief of police of a campus of the University of
California, the California State University, or community college if he or
she is residing upon the campus or in any of its facilities, within five
working days of coming into, or changing his or her residence within, any
city, county, or city and county, or campus in which he or she temporarily
resides, and shall be required to register thereafter in accordance with the
Act.

       “(c) The following persons shall be required to register:

      “Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military court of a


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       violation of . . . paragraph (1), (2), (3), (4), or (6) of subdivision (a) of
       Section 261, . . . or any person who since that date has been or is hereafter
       convicted of the attempt or conspiracy to commit any of the above-
       mentioned offenses.” (Italics added.)
       It is clear from the plain language of section 290 that it requires lifetime
registration as a sex offender for defendants who commit rape through the use of force,
violence, etc., but does not require such registration for defendants who commit rape by
“threatening to use the authority of a public official to incarcerate, arrest, or deport the
victim or another.” (§ 261, subd. (a)(7).)
       “Under the equal protection clause, we do not inquire ‘whether persons are
similarly situated for all purposes, but “whether they are similarly situated for purposes of
the law challenged.” ’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199-1200.) Since
section 290.5 applies only to defendants, like Salazar, whose lifetime sex offender
registration was imposed pursuant to section 290, for purposes of section 290.5 Salazar is
not similarly situated to defendants convicted of rape by threat of use of public authority
for whom section 290 does not mandate lifetime registration.
       However, even if Salazar were similarly situated to defendants who commit rape
by threat of use of public authority, we would nevertheless reject his equal protection
claim. “Where the statutory distinction at issue neither ‘touch[es] upon fundamental
interests’ nor is based on gender, there is no equal protection violation ‘if the challenged
classification bears a rational relationship to a legitimate state purpose. [Citations.]’
[Citation.]” (People v. Alvarado (2010) 187 Cal.App.4th 72, 76.) “ ‘ “ ‘The purpose of
section 290 is to assure that persons convicted of the crimes enumerated therein shall be
readily available for police surveillance at all times because the Legislature deemed them
likely to commit similar offenses in the future. [Citation.]’ ” ’ [Citations.] In recent
years, section 290 registration has acquired a second purpose: to notify members of the
public of the existence and location of sex offenders so they can take protective
measures. [Citation.]” (People v. Hofsheier, supra, 37 Cal.4th at p. 1196.)


                                              5.
       The Legislature could reasonably have found that defendants who commit rape
through the use of force, violence, etc., pose a greater danger to the public and are in
greater need of supervision than those who commit rape by threat of use of public
authority to arrest, incarcerate, or deport. Thus, there exists a rational basis for the
Legislature to make it more difficult for defendants who commit rape through the use of
force, violence, etc., to be relieved of the lifetime registration requirement by requiring
them to obtain a pardon. Accordingly, we reject Salazar’s equal protection claim.
                                       DISPOSITION
       The judgment is affirmed.2




2      Salazar’s request for publication of this opinion is denied.


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