Filed 6/2/15 P. v. Howell 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF
CALIFORNIA,                                                                                F068038

         Plaintiff and Respondent,                                           (Super. Ct. No. FP003966A)

                   v.                                                                     OPINION

ROBERT PRESTON HOWELL,

         Defendant and Appellant.



         APPEAL from order of the Superior Court of Kern County. Michael G. Bush,
Judge.
         Law Office of Stephanie L. Gunther and Stephanie L. Gunther for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Louis M.
Vasquez, Amanda D. Cary and Charity S. Whitney, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
       A defendant convicted of certain sex offenses must register as a sex offender
pursuant to Penal Code section 290.1 Section 290.5, subdivision (a) provides that some
convicted sex offenders may obtain relief from the obligation to register by obtaining a
certificate of rehabilitation and pardon (certificate of rehabilitation) pursuant to section
4852.01. Section 4852.01, subdivision (c) permits a person convicted of a felony to file a
petition for a certificate of rehabilitation under certain circumstances.2 However, section
4852.01, subdivision (d) precludes persons convicted of several enumerated offenses
from petitioning for a certificate of rehabilitation, including individuals convicted of
violating section 288 (lewd and lascivious acts on a child under 14).
       Appellant Robert Preston Howell pled guilty to violating section 288 in 1985. He
petitioned for a certificate of rehabilitation pursuant to section 4852.01, subdivision (c).
His ultimate goal was to be relieved of the requirement to register as a sex offender
pursuant to section 290.5. The trial court denied the petition finding Howell was
ineligible for the certificate because he was convicted of violating section 288. Howell
asserts subdivision (d) of section 4852.01 violates his constitutional right to equal
protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) We
disagree and affirm the order denying the petition.
                                       DISCUSSION
       “‘“The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment.”’ [Citation.] ‘The first prerequisite to a meritorious claim

1      All statutory references are to the Penal Code.
2      The conditions specified in section 4852.01, subdivision (c) are (1) the accusatory
pleading must first be dismissed pursuant to section 1203.4, (2) the petitioner may not
have been incarcerated in any penal institution since the accusatory pleading was
dismissed, (3) the petitioner cannot be on probation for the commission of any other
felony, and (4) the petitioner presents evidence he or she has lived in the state for the five
years preceding the filing of the petition.


                                              2.
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.]
This initial inquiry is not whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “In other words, we ask at the
threshold whether two classes that are different in some respects are sufficiently similar
with respect to the laws in question to require the government to justify its differential
treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172,
1202.) We are not concerned with whether the two proposed groups are similarly
situated for all purposes, but only whether they are similarly situated for the purposes of
the law challenged. (Cooley, supra, at p. 253.)
       If we conclude two groups are similarly situated for the purposes of the law
challenged, we then must decide whether the statute in question violates equal protection
principles by treating the two groups disparately. This question is evaluated using one of
three levels of analysis depending on the type of issue presented. If the statute involves
suspect classifications or touches upon fundamental interests, it is subject to strict
scrutiny and can be sustained only if the law is necessary to achieve a compelling state
interest. (Warden v. State Bar (1999) 21 Cal.4th 628, 640-641.) Classifications based on
gender are subject to an intermediate level of review. (People v. Hofsheier (2006) 37
Cal.4th 1185, 1200 (Hofsheier).)
       Howell admits his challenge falls into the third level of analysis, which generally
applies to economic and social welfare legislation. This level of review “manifests
restraint by the judiciary in relation to the discretionary act of a co-equal branch of
government; in so doing it invests legislation involving such differentiated treatment with
a presumption of constitutionality and ‘[requires] merely that distinctions drawn by a
challenged statute bear some rational relationship to a conceivable legitimate state
purpose.’ [Citation.]” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16.)

                                              3.
“Moreover, the burden of demonstrating the invalidity of a classification under this
standard rests squarely upon the party who assails it.” (Id. at p. 17.)
       While Howell’s stated goal is to obtain relief from the requirement that he register
as a sex offender pursuant to section 290.5, the first impediment to this goal is his
inability to obtain a certificate of rehabilitation pursuant to section 4852.01. We begin by
noting what is not at issue in this appeal. While Howell asserts he is an excellent
candidate for a certificate of rehabilitation, the trial court never reached this issue because
it concluded he was statutorily ineligible. Nor does Howell contend the trial court
improperly applied section 4852.01, subdivision (d) to him. Instead, Howell argues his
constitutional right to equal protection of the laws is violated by section 4852.01,
subdivision (d).
       Howell’s opening brief relied extensively on Hofsheier, and cases which relied on
Hofsheier to find equal protection violations in various settings. After the briefs were
filed, the Supreme Court decided Johnson v. Department of Justice (2015) 60 Cal.4th 871
(Johnson), which overruled Hofsheier and disapproved of many of the cases that relied
on Hofsheier. We gave each party an opportunity to file supplemental briefing on the
effect of Johnson on this appeal.
       We begin our analysis with a brief review of Hofsheier, supra, 37 Cal.4th 1185.
Hofsheier pled guilty to nonforcible oral copulation with a 16-year-old girl in violation of
section 288a, subdivision (b)(1). As a result of this conviction, the trial court imposed the
mandatory requirement that he register as a sex offender for life pursuant to section 290.
Hofsheier argued the mandatory registration requirement violated his right to equal
protection of the laws because a person convicted of nonforcible sexual intercourse with
a minor (§ 261.5) was not subject to the mandatory registration requirement, but was
subject to a registration requirement only if the trial court, in the exercise of its discretion,
chose to impose the registration requirement.



                                               4.
       The Supreme Court identified the equal protection issue as involving “the adult
offender convicted under section 288a[, subdivision ](b)(1) of a voluntary sexual act with
a minor 16 years or older, a group that includes defendant. State law requires all such
offenders to register for life as a sex offender. In contrast, an adult offender convicted of
voluntary sexual intercourse with a minor 16 years or older is not subject to mandatory
registration. The issue is whether this distinction violates the equal protection clause of
the Fourteenth Amendment to the United States Constitution or of article I, section 7 of
the California Constitution.” (Hofsheier, supra, 37 Cal.4th at p. 1198.)
       After reviewing relevant cases, the Supreme Court concluded that because the
only difference between a violation of section 288a, subdivision (b)(1) and section 261.5
was the nature of the sexual act, the two groups were sufficiently similar to merit equal
protection scrutiny. (Hofsheier, supra, 37 Cal.4th at p. 1200.)
       The Supreme Court next applied the rational relationship test to determine if there
was any reasonably conceivable state of facts that could provide a rational basis for the
classification. (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) The Supreme Court
concluded there was not a rational basis for the disparate treatment of the two groups.

       “Requiring all persons convicted of voluntary oral copulation with minors
       16 to 17 years of age to register for life as sex offenders, while leaving
       registration to the discretion of the trial court for those convicted of sexual
       intercourse with minors of the same ages, cannot be justified by the
       speculative possibility that members of the former group are more likely to
       reoffend than those in the latter group. To sustain the distinction, there
       must be some plausible reason, based on reasonably conceivable facts, why
       judicial discretion is a sufficient safeguard to protect against repeat
       offenders who engage in sexual intercourse, but not with offenders who
       engage in oral copulation. [Citation.] No reason has been suggested why
       judicial discretion is insufficient, and none comes to mind. No other state
       requires mandatory lifetime registration as a sex offender for anyone
       convicted of voluntary oral copulation with a minor 16 to 17 years of age,
       but not for someone convicted of voluntary sexual intercourse with minors
       of the same age.



                                              5.
              “No doubt there are some persons convicted of oral copulation with
       16- or 17-year-old minors for whom lifetime registration is appropriate
       because their conduct and criminal history suggest a high risk of
       recidivism, but the same can be said of some individuals convicted of
       unlawful intercourse with minors in that same age group. The existence of
       such potential recidivists under both statutes argues for discretionary
       registration depending on the facts of the case rather than mandatory
       registration for all persons convicted under section
       288a[, subdivision ](b)(1).” (Hofsheier, supra, 37 Cal.4th at pp. 1203-
       1204.)
       The Supreme Court’s explained its conclusion in the holding: “We perceive 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. We therefore conclude that the statutory distinction in section 290
requiring mandatory lifetime registration of all persons who, like defendant here, were
convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of
someone convicted of voluntary sexual intercourse with a minor of the same age, violates
the equal protection clauses of the federal and state Constitutions. This conclusion does
not preclude the Legislature from requiring lifetime registration both for persons
convicted of voluntary oral copulation and for those convicted of voluntary sexual
intercourse, thus treating both groups the same.” (Hofsheier, supra, 37 Cal.4th at pp.
1206-1207.)
       We now turn to Johnson, supra, 60 Cal.4th 871. Johnson pled guilty to
nonforcible oral copulation with a minor under 16 in violation of section 288a,
subdivision (b)(2). After Hofsheier was decided, Johnson filed a petition seeking relief
from section 290’s mandatory registration requirement. The appellate court concluded
the mandatory registration requirement violated Johnson’s right to equal protection and




                                              6.
remanded the matter to trial court to determine if Johnson should be required to register
under the discretionary provisions in section 290.006.
       The Supreme Court began its analysis by noting the compelling state interest in
preventing recidivism in sex offenders, and the important role mandatory registration
plays in achieving that goal. (Johnson, supra, 60 Cal.4th at p. 876.) The Supreme Court
then explained why the equal protection analysis in Hofsheier was “fundamentally
flawed,” and explained why it now concluded the equal protection clause was not
violated in Hofsheier, or in Johnson’s case. (Johnson, supra, at p. 879.)
       The Supreme Court identified the issue as follows: “[A]n equal protection
challenge can be sustained only if section 261.5 offenders and section 288a offenders are
similarly situated, and if the challenger ‘ “ negative[s] every conceivable basis” ’ that
might support section 261.5’s [nonforcible intercourse with a minor] omission from
section 290’s list of offenses subject to mandatory registration. [Citations.]” (Johnson,
supra, 60 Cal.4th at p. 882.) The Supreme Court determined “the nature and potential
consequences of unlawful sexual intercourse provide actual and plausible rationales for
the Legislature’s omission of section 261.5 from section 290’s list of offenses.” (Ibid.)
       Next, the Supreme Court explained that three of the rationales advanced by
Hofsheier as support for the decision were erroneous. First, the Supreme Court rejected
the theory that legislative inattention could explain the failure to remove section 288a’s
nonforcible offenses from the mandatory registration requirement of section 290.
(Johnson, supra, 60 Cal.4th at p. 882.)
       Second, the Supreme Court found support for the contention that pedophiles who
engage in oral copulation, as opposed to sexual intercourse, are more likely to reoffend.
“Studies indicate that pubescent minors may be more receptive to engaging in oral sex,
which does not risk pregnancy and which many such minors believe is lower in risk for
sexually transmitted diseases. [Citation.] As for pedophiles, who, by definition, target
prepubescent minors, studies show that, ‘[t]ypically, pedophiles engage in fondling and

                                             7.
genital manipulation more than intercourse,’ except in cases of incest, forcible
encounters, and when pedophiles prefer older children. [Citation.] In light of the
foregoing, the Legislature could plausibly assume that predators and pedophiles engaging
in oral copulation have more opportunities to reoffend than those engaging in sexual
intercourse, and, for that reason, are especially prone to recidivism and require ongoing
surveillance.” (Johnson, supra, 60 Cal.4th at pp. 883-884.)
       Third, the Supreme Court concluded there were significant differences between
unlawful sexual intercourse, and nonforcible oral copulation. Recognizing that unlawful
sexual intercourse could result in pregnancy, the Supreme Court observed that it would
appear anomalous that section 261.5 does not require mandatory registration.
Nonetheless, the Supreme Court found the possible reasoning of the Legislature in the
legislative history of section 261.5.

       “The 1970 legislation that separated the offenses of rape and unlawful
       sexual intercourse with a female under age 18—by moving the latter from
       the general rape statute (§ 261) to section 261.5—originated with the State
       Bar of California. [Citation.] In an analysis of that legislation, the State
       Bar’s legislative representative explained: ‘When there are consenting
       near-adults involved, but for some reason the girl’s parents or the Social
       Welfare Department wants to force the boy to support the child, it is
       unrealistic to have the connotation of “rape” attached to his crime. Many
       private employees do not differentiate between “statutory rape” and
       “forcible rape,” and refuse to hire a “rapist.” As a result, the capacity to
       earn money to support a child is severely handicapped. This bill merely
       seeks to eliminate this social stigma.’ [Citation.] Thus, in separating and
       renaming the offense of unlawful sexual intercourse, the Legislature sought
       to eliminate, for section 261.5 offenses, the social stigma associated with
       the rape label so that offenders could more readily obtain employment and
       support children conceived as a result of such intercourse. [Citation.] This
       history confirms that the potential for pregnancy and parenthood has, in
       fact, influenced legislative decisionmaking regarding unlawful intercourse
       with minors.




                                             8.
               “Indeed, more than two decades later, the Legislature made explicit
       findings that ‘[i]llicit sexual activity between adult males and teenage or
       younger girls in this state is resulting in the nation’s highest teenage
       pregnancy and birth rate,’ and that ‘[m]any of these adult males are repeat
       offenders who have fathered more than one child by different teenage
       mothers, yet accept little or no responsibility for their actions or for the
       support of their children.’ [Citation.] Emphasizing that ‘California spent
       $3.08 billion in 1985 to assist families headed by teenagers,’ but ‘would
       have saved $1.23 billion in welfare and health care expenses’ had
       parenthood been delayed, the Legislature declared that ‘[t]he laws
       prohibiting adults from having sexual relations with persons under the age
       of 18 years must be more vigorously enforced’ and that ‘[a]dult males who
       prey upon minor girls must be held accountable for their conduct and
       accept responsibility for their actions.’ [Citation.] Based on these findings,
       the Legislature amended section 261.5 to subject adults convicted of sexual
       intercourse with minors to graduated civil penalties (ranging from $2,000 to
       $25,000), based on the age difference between the minor victim and the
       adult offender. [Citation.] Any amounts so recovered must be applied
       toward recouping the costs in pursuing the penalties, with the remainder
       deposited in the Underage Pregnancy Prevention Fund. [Citation.] These
       civil penalties are not applicable to persons convicted of offenses involving
       sexual contact other than intercourse with minor victims.

               “Hence, the very real problem of teen pregnancy and its costly
       consequences, as well as legislative concern that stigmatization might
       interfere with employment opportunities and the support of children
       conceived as a result of unlawful intercourse, offer more than just plausible
       bases for treating section 261.5 offenders differently than other types of sex
       offenders. Providing for discretion in section 261.5 cases allows the trial
       court to order registration in appropriate situations, while maintaining
       flexibility in those cases where, for instance, registration might cause
       economic or other hardship to a child born to the minor victim and the adult
       offender.” (Johnson, supra, 60 Cal.4th at pp. 884-886.)
       Fourth, the Supreme Court noted the Legislature had considered and rejected on at
least three separate occasions mandatory registration for individuals who violate section
261.5. (Johnson, supra, 60 Cal.4th at p. 886.) “Subsequent to Hofsheier, and to this day,
the Legislature has not acted to add section 261.5 to section 290’s list of offenses subject
to mandatory registration. Because the Legislature has acted purposefully and
consistently to preserve discretionary sex offender registration for section 261.5


                                             9.
offenders, we may reasonably infer its public policy concerns would not be served by
mandating registration for such offenders in order to cure the constitutional infirmity
found by Hofsheier.” (Ibid.) The Supreme Court concluded that because the Legislature
is afforded considerable latitude in determining the consequences of crimes, the inherent
capacity to cause pregnancy provided a rational basis for distinguishing between
nonforcible oral copulation and unlawful sexual intercourse. (Id. at p. 887)
       For these reasons, the Supreme Court overruled Hofsheier, and disapproved of the
Court of Appeal decisions that applied Hofsheier’s rational to other sex offenses
involving minors and others. (Johnson, supra, 60 Cal.4th at p. 887.)
       With these cases in mind, we turn to Howell’s arguments. Howell initially
identifies the issues in this case as whether sections 290.5 and 4852.01 violate his right to
equal protection of the laws. The majority of his argument, however, is directed at
section 4852.01.
       The portion of his argument addressing section 290.5 asserts, in essence, that if he
receives a certificate of rehabilitation, he is entitled to relief from the registration
requirement. The case cited as support for his argument is D.M. v. Department of Justice
(2012) 209 Cal.App.4th 1439 (D.M.). However, the appellate court in D.M. relied on
Hofsheier’s conclusion that violators of section 288a, subdivision (b)(1) were similarly
situated to violators of section 261.5. The appellate court went on to reason that since
290.5 automatically relieved a defendant convicted of violating section 261.5 from the
mandatory registration requirement once a certificate of rehabilitation was obtained,
equal protection principles required section 290.5 to also grant relief to a defendant that
violated section 288a, subdivision (b)(1) once he or she obtained a certificate of
rehabilitation. (D.M., supra, at pp. 1451-1452.)
       Johnson invalidates the reasoning of D.M. Accordingly, Howell will find no
support for his argument in that opinion. Moreover, every defendant who violated the
code sections identified by Howell are precluded from obtaining relief from mandatory

                                               10.
registration by the provisions of section 290.5 (§ 290.5, subd. (a)(2)(L) precludes relief
for defendants convicted of violating § 286, subd. (d)(2); § 290.5, subd. (a)(2)(O)
precludes relief for defendants convicted of violating § 288a, subd. (d); § 290.5, subd.
(a)(2)(Q) precludes relief for defendants convicted of violating § 288.7).
       Turning to section 4852.01, we will assume, without deciding, that Howell is
similarly situated to defendants convicted of the other crimes he has identified. Howell
asserts his right to equal protection is violated because section 4852.01 allows those other
defendants to obtain a certificate of rehabilitation, but will not permit him to do so.
       We begin with section 288.7. A recent amendment to section 4852.01,
subdivision (d) added defendants convicted of violating section 288.7 to the list of
defendants who may not obtain relief pursuant to section 4852.01. (Stats. 2014, ch. 280
§ 3.) Accordingly, any possible equal protection issue has been eliminated.
       Howell argues, apparently, that we should not consider this amendment in this
opinion. However, as Howell recognizes in his opening brief, all plea agreements
incorporate not only the existing law, but also the power of the state to amend the law or
enact additional laws for the public good and in pursuance of public policy. (Doe v.
Harris (2013) 57 Cal.4th 64, 66.) Accordingly, since the recent amendment to section
4852.01 applies to Howell, indeed, since the amendment was intended to eliminate the
issue on which Howell relies, we will apply current law and not limit our analysis to the
law in effect at the time Howell filed his petition.
       The other two crimes identified by Howell are not included in section 4852.01,
subdivision (d), but, assuming the two groups are similarly situated, we conclude, under
Johnson, there is a rational basis for treating these two groups differently. Johnson
reiterated that rough accommodations made by the Legislature survive rational basis
review. (Johnson, supra, 60 Cal.4th at p. 887.) Similarly, an imperfect fit between the
means and end at which the Legislature is aiming also survives rational basis review.
(Ibid.) Johnson’s emphasis of these two principles compels our conclusion.

                                             11.
       The two crimes at issue are section 286, subdivision (d)(2) and section 288a,
subdivision (d)(2). The first section criminalizes forcible sodomy “while voluntarily
acting in concert with another person, either personally or aiding and abetting that other
person,” upon a victim under 14. The second section criminalizes forcible oral
copulation “while voluntarily acting in concert with another person, either personally or
aiding and abetting that other person,” upon a victim under 14. These two sections share
in common the requirement that the defendant act in concert with another person. The
crime of which Howell was convicted (§ 288) required that he personally commit a lewd
and lascivious act on a person under 14.
       The Legislature could have concluded it would not preclude a defendant convicted
of violating either section 286, subdivision (d)(2) or 288a, subdivision (d)(2) from
applying for a certificate of rehabilitation because that defendant may not have personally
committed the act of sodomy or oral copulation, but instead may have been convicted as
the aider or abettor who was acting under the influence of the defendant committing the
sexual act. In these circumstances, it is rational for the Legislature to conclude the aider
or abettor should be able to obtain a certificate of rehabilitation. Even if this choice is a
rough accommodation, and perhaps better options exist to address this issue, Johnson
emphasized that such choices are for the Legislature and do not offend equal protection
principles. Once again, we note that even with a certificate of rehabilitation and a
pardon, a defendant convicted of violating either section 286, subdivision (d)(2) or
section 288a, subdivision (d)(2) are precluded from obtaining relief from the mandatory
registration requirement even if they were to obtain a certificate of rehabilitation.
(§ 290.5, subd. (a)(2)(L) and (a)(2)(O))
                                       DISPOSTION
       Because there is a rational basis for treating differently defendants who violate
section 286, subdivision (d)(2) or section 288a, subdivision (d)(2) from those defendants
who violate section 288, subdivision (a), Howell’s right to equal protection of the laws

                                              12.
was not violated. Accordingly, the order denying Howell’s petition is affirmed.
Howell’s unopposed request for judicial notice is granted.

                                                              _____________________
                                                                        FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
DETJEN, J.




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