Filed 5/26/15 P. v. Lee CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066390

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN310479)

DAVID BRUCE LEE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Affirmed.

         Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       This case arose when defendant David Bruce Lee posted an advertisement on the

Craigslist website offering to pay for sexual favors, unwittingly exchanged online

communications with a police officer who portrayed himself as a 14-year-old girl

responding to the ad, and then attempted to personally contact the fictitious minor for the

purpose of having sex. Lee pleaded guilty to one count of attempting to contact a minor

with intent to commit a sexual offense in violation of Penal Code1 section 288.3,

subdivision (a) (hereafter section 288.3(a)).2 The trial court granted Lee probation on

condition that he register as a sex offender under the Sex Offender Registration Act

(§ 290 et seq.) (Act). The Act allows discretionary sex offender registration for

defendants convicted of unlawful sexual intercourse with a minor (§§ 261.5, 290.006),3

but imposes mandatory sex offender registration for defendants convicted of crimes

involving other types of sexual activity with a minor (§ 290, subds. (b), (c), hereafter


1      All further undesignated statutory references are to the Penal Code.

2      Section 288.3(a) provides: "Every person who contacts or communicates with a
minor, or attempts to contact or communicate with a minor, who knows or reasonably
should know that the person is a minor, with intent to commit an offense specified in
Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or
311.11 involving the minor shall be punished by imprisonment in the state prison for the
term prescribed for an attempt to commit the intended offense."

3      Section 261.5, subdivision (a) provides: "Unlawful sexual intercourse is an act of
sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if
the person is a minor. For the purposes of this section, a 'minor' is a person under the age
of 18 years and an 'adult' is a person who is at least 18 years of age." The provisions of
section 290.006 are discussed in footnote 9, post.

                                              2
section 290(b), (c)).4 (Johnson v. Dept. of Justice (2015) 60 Cal.4th 871, 874 (Johnson).)

Lee's sex offense─contacting or attempting to contact a minor with intent to commit a

sexual offense (§ 288.3(a))─is listed in section 290, subdivision (c) (hereafter section

290(c)) as one of the offenses for which lifetime sex offender registration is mandatory

under the Act. (§ 290(c).)5

       Lee appeals, challenging on equal protection grounds the portion of the judgment

imposing mandatory lifetime sex offender registration under the Act. The principal issue

we must decide is whether subjecting offenders convicted of contacting or attempting to

contact a minor with intent to commit a sexual offense (§ 288.3(a)) to mandatory sex

offender registration under section 290 violates their constitutional right to equal

protection of the laws when imposition of sex offender registration is discretionary under

section 290.006 for offenders convicted of unlawful sexual intercourse with a minor

(§ 261.5).

4       Section 290, subdivision (b) provides: "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, as described in Sections 290.002 and 290.01, 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." The relevant text of section 290(c) is set forth in footnote 5,
post.

5      Section 290(c) provides in part: "The following persons shall be required to
register: [¶] Any person who . . . is . . . convicted in any court in this state . . . of . . . any
act punishable under . . . Section . . . 288.3[.]"
                                                 3
       We conclude that subjecting an offender convicted of a violation of section

288.3(a) to the mandatory sex offender registration requirement of section 290 does not

violate the equal protection clauses of the federal and state Constitutions because there is

a rational basis─that is, the Legislature had plausible rationales based on reasonably

conceivable facts─for authorizing discretionary imposition of sex offender registration

for section 261.5 offenders while mandating lifetime registration for other sex offenders,

such as section 288.3(a) offenders. Accordingly, we affirm the order imposing the

mandatory sex offender registration requirement set forth in section 290, subdivisions (b)

and (c), as a condition of Lee's probation.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual Background6

       One evening in September 2012, Lee posted an online advertisement on Craigslist

San Diego that stated:

          "Looking for Sexy in Escondido─m4w─39 (Escondido)

          "What can I say but that I am a single man who owns his own home
          and have yet to meet the right one. I am attractive (5'9" at 170) and I
          like just about everything life has to offer. Speaking of offers, I can
          be generous.

          "Come on over and relax. Let's see where things go."

       Although Lee represented in the ad that he was 39 years of age, he was 43 years

old.


6      The following summary of the facts underlying Lee's conviction in this matter,
which was based on his guilty plea, is primarily taken from the reporter's transcript of the
preliminary hearing.
                                              4
       That same evening Detective Damian Jackson, who is assigned to the Family

Protection and Child Exploitation Unit of the Escondido Police Department, was perusing

personal ads on the Craigslist website as part of his job duties. Lee's advertisement

caught Detective Jackson's attention because it lacked any age parameters regarding the

females the author was seeking to meet, and because the author's comment he was

"generous" was code language in Craigslist online enticement parlance that the author

was willing to pay for sexual favors.

       Detective Jackson responded to Lee's advertisement using an e-mail address

registered to a fictitious 14-year-old female named "Jamie." In the e-mail Jamie asked

Lee whether he was interested in "hooking up" with someone who was a lot younger than

him. Lee e-mailed a response asking Jamie to tell him about herself. Detective Jackson

responded by specifically informing Lee that Jamie was 14 years old and was available to

meet up with him. During their online communications, Jamie told Lee she would have

to sneak out of her house, she was not able to provide any kind of birth control, and she

did not want to end up on an MTV show about teenagers that get pregnant. Eventually

Lee and Jamie agreed to meet at a specific grocery store parking lot in Escondido.

       Using information he obtained during his online communications with Lee,

Detective Jackson was able to identify Lee and locate his home. The police kept him

under surveillance when he drove to a 7-Eleven convenience store where he withdrew

money from an ATM, made a purchase, and then drove to the agreed-upon grocery store

parking lot. Police officers arrested Lee there, and a search of his car resulted in the



                                              5
discovery of a 7-Eleven shopping bag that contained a box of condoms and an ATM

receipt showing a $100 withdrawal.

       After he waived his Miranda7 rights, Lee admitted his online conversation with

Jamie and also admitted that he knew he had been having an inappropriate conversation

with a person he thought was a 14-year-old and that he had agreed to meet her for the

purpose of having sex.

       B. Procedural Background

       Lee pleaded guilty in May 2014 to one count of contacting a minor with intent to

commit a sexual offense (§ 288.3(a)). As part of that plea, Lee initialed and signed a

declaration acknowledging that lifetime registration as a sex offender under section 290

was a possible consequence of his guilty plea.

       The following month, before sentencing, Lee filed a motion asking that the court

not issue an order requiring him to register as a sex offender. Lee acknowledged his

registration as a sex offender was statutorily mandated because his nonforcible sex

offense (§ 288.3(a)) is one of the qualifying offenses listed in section 290(c). Citing

People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier),8 Lee claimed that mandatory

registration under section 290(c) would violate his right to equal protection of the laws

under the federal and state Constitutions because persons (like him) convicted of the



7      Miranda v. Arizona (1966) 384 U.S. 436.

8     In January 2015, as we discuss, post, the California Supreme Court overruled
Hofsheier in Johnson, supra, 60 Cal.4th 871, while Lee's appeal in this matter was
pending.
                                             6
nonforcible sex offense of contacting a minor with intent to commit a sexual offense

(§ 288.3(a)) are subject to mandatory sex offender registration while similarly-situated

persons convicted of unlawful sexual intercourse with a minor of the same age (§ 261.5)

are not. Relying on Hofsheier, Lee asserted there was no rational basis for such

disparate treatment. Lee also claimed that imposition of discretionary sex offender

registration under section 290.006 would be an abuse of the court's discretion on the facts

of this case.

       In their written opposition to Lee's motion, the People argued the court should

order Lee to register as a sex offender. Specifically, the People argued that mandatory

sex offender registration for a conviction of contacting a minor with intent to commit a

sexual offense in violation of section 288.3(a) does not violate the defendant's right to

equal protection because such a defendant is not similarly situated to a defendant

convicted of unlawful sexual intercourse in violation of section 261.5. Thus, the People

asserted, "[Lee's] equal protection claim must fail."

       At the July 2014 probation and sentencing hearing, the court heard Lee's motion,

which the court characterized as a motion to strike section 290 registration. Defense

counsel argued that the court should not impose mandatory or discretionary sex offender

registration. Regarding mandatory lifetime registration, defense counsel asserted that

Lee's offense was an attempted act with no physical contact with the minor, and thus the

offense was less serious than either the nonforcible oral copulation offense involved in

Hofsheier or the crime of nonforcible sexual intercourse with a minor that is not subject



                                              7
to mandatory sex offender registration. Thus, counsel argued, imposition of mandatory

registration would violate Lee's right to equal protection.

       Lee's counsel also urged the court not to impose discretionary sex offender

registration under section 290.006 because Lee posted the advertisement in the men-

seeking-women section and it was intended for an adult female, not a minor. Counsel

also argued that although Lee in a "lapse of judgment" attempted to contact a minor, he

did not initiate the contact; he was not a threat to public safety because the probation

report showed he had no other criminal history and his "static risk assessment" rated him

at low to moderate risk of sexual offense recidivism; he had been rehabilitating himself

by participating in a sexual offender treatment program; he was receiving counseling for

his depression and substance abuse; and, following the loss of his job at the San Diego

Unified School District due to his conviction, he was taking classes in welding and

automotive repair.

       The prosecutor argued that sex offender registration was mandatory because Lee

pleaded guilty to an offense listed in section 290(c). The prosecutor reminded the court

that Lee showed up at the parking lot with a box of condoms for the purpose of having

sex with someone he thought was 14 years old.

       The prosecutor also argued that in the event the court found mandatory sex

offender registration did not apply, it should impose discretionary registration under

section 290.006 because, although Lee had no prior criminal record, he went online and

had multiple conversations with someone he thought was 14 years old and then showed

up at the meeting place "ready to do the act."

                                              8
       The court ordered Lee to register as a sex offender, finding that registration was

mandatory under section 290 for the offense Lee committed. The court noted that the

circumstantial evidence showed Lee was intending to complete some type of sexual act

with someone he knew or should have known was "under the legal age." The court also

found that, if registration were not mandatory, it would impose discretionary registration

under section 290.006 because "[Lee's] intent did involve the solicitation of taking

advantage of an underaged female," which is the type of offense the Legislature has

indicated should result in registration.

       As pertinent here, the court then suspended imposition of sentence, granted Lee

three years' formal probation on condition that he register as a sex offender and serve one

day in local custody, and granted him one day of credit for time served.

                                       DISCUSSION

       Lee contends the court's order requiring him to register as a sex offender should be

reversed because subjecting him to the mandatory sex offender registration requirement

set forth in subdivisions (b) and (c) of section 290 for his listed section 288.3(a) sex

offense violates the equal protection clauses of the federal and state Constitutions. We

disagree.

       In his appellant's opening brief, Lee─relying principally on the California

Supreme Court's decision in Hofsheier, supra, 37 Cal.4th 1185, which our high state

court has since overruled (as we shall discuss, post)─claimed the trial court's order

imposing mandatory sex offender registration as a condition of his probation violates his

right to equal protection of the laws because (1) he is similarly situated to an offender

                                              9
convicted of unlawful sexual intercourse with a minor (§ 261.5), and (2) there is no

rational basis for imposing mandatory sex offender registration under section 290(c) on a

defendant like himself who is convicted of attempting to contact a 14-year-old minor

with the intent to commit a sexual offense (§ 288.3(a)) when a defendant convicted of

unlawful sexual intercourse with a minor (§ 261.5) is subject to discretionary sex

offender registration under section 290.006.

       In Hofsheier, the defendant claimed the section 290 provision for mandatory sex

offender registration of persons convicted of nonforcible oral copulation with a minor 16

or 17 years of age (§ 288a, subd. (b)(1), hereafter section 288a(b)(1)) violated his rights

under the equal protection clauses of the federal and state Constitutions because persons

convicted of unlawful sexual intercourse with a minor of 16 or 17 years of age (§ 261.5)

were subject to discretionary sex offender registration under former section 290,

subdivision (a)(2)(E) (now § 290.006).9 (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193;

see Johnson, supra, 60 Cal.4th at p. 877.) Hofsheier concluded that the section 290

registration mandate violated the equal protection rights of section 288a(b)(1) offenders.



9       The California Supreme Court recently explained that "Hofsheier concerned a
prior version of section 290, which was repealed and reenacted in 2007. The
discretionary registration provision that was included in that prior version now appears in
section 290.006, which provides: 'Any person ordered by any court to register pursuant
to the [Sex Offender Registration] Act for any offense not included specifically in
subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction
or sentencing that the person committed the offense as a result of sexual compulsion or
for [the] purposes of sexual gratification. The court shall state on the record the reasons
for its findings and the reasons for requiring registration.'" (Johnson, supra, 60 Cal.4th at
p. 877, fn. 3.)

                                              10
(Hofsheier, supra, 37 Cal.4th at pp. 1206-1207.) In reaching this conclusion, the

Hofsheier majority first determined that, for purposes of equal protection analysis,

offenders convicted of nonforcible oral copulation with a minor were sufficiently

similarly situated to those convicted of unlawful sexual intercourse with a minor to merit

scrutiny under the rational relationship test10 to determine whether distinctions between

the two groups justified the unequal sex offender registration consequences. (Id. at p.

1199; see Johnson, at p. 878.) In support of this determination, Hofsheier stated that

"[t]he only difference" (Hofsheier, at p. 1200) between nonforcible oral copulation under

section 288a(b)(1)─for the conviction of which sex offender registration is mandatory

under the Act─and unlawful sexual intercourse under section 261.5─for which

registration is discretionary─is "the nature of the sexual act." (Hofsheier, at p. 1200.)

       Hofsheier then examined whether a "rational basis" (Hofsheier, supra, 37 Cal.4th

at p. 1201) supports the statutory classification mandating lifetime sex offender

registration by a person convicted of nonforcible oral copulation with a 16-year-old

minor (§ 288a(b)(1)) while leaving registration by a person convicted of unlawful sexual

intercourse with a 16-year-old minor (§ 261.5) to the discretion of the trial court.

(Hofsheier, supra, 37 Cal.4th at p. 1201, 1203-1204.) Hofsheier found no "rational



10      The California Supreme Court has described the rational relationship test as
follows: "'"[I]n areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if 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.'"'" (Kasler v.
Lockyer (2000) 23 Cal.4th 472, 481-482.)
                                             11
basis"─that is, no "plausible reason, based on reasonably conceivable facts" (id. at p.

1204)─for restricting application of the discretionary registration provision to the

offenders convicted of unlawful intercourse. (Id. at pp. 1201-1204, 1206-1207.)

Accordingly, Hofsheier held that subjecting section 288a(b)(1) offenders to mandatory

sex offender registration under the Act violated the equal protection clauses of the federal

and state Constitutions. (Hofsheier, at pp. 1192-1193, 1207.)

       "Although Hofsheier attempted to limit its holding to the factual circumstances

before it, the Courts of Appeal . . . extended its application to additional nonforcible sex

offenses covered by section 290." (Johnson, supra, 60 Cal.4th at p. 878.) For example,

in People v. Ranscht (2009) 173 Cal.App.4th 1369 (Ranscht), this court, relying on

Hofsheier, held that an order imposing mandatory sex offender registration under section

290 on an 18-year-old offender convicted of nonforcible digital penetration of a 13-year-

old minor (§ 289, subd. (h)) was a violation of his constitutional right to equal protection

of the laws. (Ranscht, at pp. 1371, 1375.) Similarly, in People v. Thompson (2009) 177

Cal.App.4th 1424 (Thompson), the Court of Appeal in another district relied on Hofsheier

in holding that an order imposing mandatory sex offender registration under section 290

on a 36-year-old offender convicted of nonforcible sodomy with a 17-year-old minor (§

286, subd. (b)(1)) was a violation of his right to equal protection guaranteed by the

federal and California Constitutions. (Thompson, at pp. 1427, 1431.) We note that Lee,

in his opening brief, relied on both Ranscht and Thompson in support of his claim that

imposition of mandatory sex offender registration under section 290 as a condition of his

probation violates his constitutional right to equal protection of the laws.

                                             12
       While the present appeal was pending, the California Supreme Court in Johnson,

supra, 60 Cal.4th 871 overruled Hofsheier and "disapprove[d] those Court of Appeal

decisions [like Ranscht and Thompson] that applied Hofsheier's rationale─i.e., the

absence of a rational basis for distinguishing, as to sex offender registration, between oral

copulation with a minor and unlawful sexual intercourse─to other sex offenses involving

minors and others."11 (Johnson, at p. 888.)

       In overruling Hofsheier and disapproving its progeny, the Johnson court explained

that the extension of Hofsheier's reach "to additional sex crimes involving adult offenders

and minor victims of various ages and age differences" (Johnson, supra, 60 Cal.4th at p.

875) was resulting in "continued judicial nullification of mandatory registration [that

was] denying significant effect to the legislative policy choices embodied in the Sex

Offender Registration Act." (Ibid.) The Supreme Court found that Hofsheier's equal

protection analysis was "fundamentally flawed" (id. at p. 879) and its "rational basis

analysis [was] demonstrably wrong" (id. at p. 881) because "it mistakenly concluded that

no rational basis exists for subjecting intercourse offenders and oral copulation offenders

to different registration consequences." (Johnson, at p. 875.) Johnson observed that

"section 290's lifetime registration requirement legitimately intends to 'promote "'the state

interest in controlling crime and preventing recidivism in sex offenders,'"'" (id. at p. 881)



11    In addition to overruling Hofsheier and disapproving Ranscht and Thompson,
Johnson also disapproved People v. Ruffin (2011) 200 Cal.App.4th 669; People v.
Luansing (2009) 176 Cal.App.4th 676; In re J.P. (2009) 170 Cal.App.4th 1292; People v.
Hernandez (2008) 166 Cal.App.4th 641; and People v. Garcia (2008) 161 Cal.App.4th
475. (Johnson, supra, 60 Cal.4th at p. 888.)
                                             13
and "mandatory registration for sex offenders who prey on underage victims is rationally

related to that important and vital public purpose." (Id. at p. 882.) Rejecting Hofsheier's

observation that "the nature of the sexual act" is the "only difference" between unlawful

sexual intercourse and nonforcible oral copulation (Hofsheier, supra, 37 Cal.4th at p.

1200), Johnson explained that, "[a]mong the various sex offenses, unlawful sexual

intercourse is unique in its potential to result in pregnancy and parenthood. The act of

intercourse, by itself, nearly always carries this potential, while engaging in oral

copulation or other nonintercourse sexual activity, by itself, never does. Given the

potential life-altering consequences of intercourse, it may seem, at first blush, anomalous

that section 261.5 is one of the only─if not the only─offenses proscribing sexual contact

with a minor that is subject to discretionary, as opposed to mandatory, registration."

(Johnson, at pp. 884-885, citing § 290.006, italics added.)

       The Johnson court then examined the legislative history of section 261.5 and

found that it "dispels any notion that confining the availability of discretionary

registration to intercourse offenders has no rational basis." (Johnson, supra, 60 Cal.4th at

p. 884.) The Supreme Court explained that "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

                                             14
economic or other hardship to a child born to the minor victim and the adult offender."

(Johnson, at p. 886.)

       Lee acknowledges in his reply brief, which he filed after the Supreme Court

decided Johnson, that he may no longer rely on Hofsheier and its progeny, including

Ranscht, supra, 173 Cal.App.4th 1369, and Thompson, supra, 177 Cal.App.4th 1424,

which he cited in his opening brief. He contends, however, that Johnson "does not

foreclose his argument that he was denied equal protection because there is no rational

basis for the differentiated treatment of those convicted of violating . . . section 261.5 and

those convicted of violation . . . section 288.3." We reject this contention. As already

discussed, the Johnson court concluded that the rational basis analysis in Hofsheier was

wrong because "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." (Johnson, supra, 60 Cal.4th at p. 886.) The reasoning of

the Johnson court applies equally here. The same legislative concerns "offer more than

just plausible bases" for treating section 261.5 offenders differently than section 288.3(a)

offenders like Lee regarding sex offender registration under the Act. Where, as here,

there are plausible reasons for the classification, our inquiry is at an end. (Kasler v.

Lockyer, supra, 23 Cal.4th at pp. 481-482.) Accordingly, we need not reach the Attorney

General's contention that Lee is "not similarly situated to other sex offenders who are not

subject to mandatory registration."

                                              15
       Lee also contends the Johnson decision overruling Hofsheier and disapproving its

progeny should not be applied retroactively in this case. We reject this contention. The

Johnson court explained that "[a] decision of a court overruling a prior decision is

typically given full retroactive effect. [Citation.] Despite this general rule, the federal

and state Constitutions do not prohibit an appellate court from restricting retroactive

application of an overruling decision on grounds of equity and public policy." (Johnson,

supra, 60 Cal.4th at p. 888, italics added.) Johnson further explained that retroactive

application of such a decision should not be denied "where . . . a sex offender has taken

no action in justifiable reliance on the overruled decision." (Id. at p. 889, italics added.)

       Here, there is no unfairness or inequity in rejecting, based on Johnson's overruling

of Hofsheier, Lee's equal protection challenge to the mandatory sex offender registration

requirement imposed as a condition of his probation. Lee has not shown, and cannot

demonstrate, that he justifiably relied on Hofsheier when he pleaded guilty to one count

of contacting a minor with intent to commit a sexual offense in violation of 288.3(a)). At

the time he pleaded guilty, that offense was one of the crimes listed in section 290(c) (see

fn. 5, ante), and thus sex offender registration was statutorily mandated under the Act.

As part of his guilty plea, Lee initialed and signed a declaration acknowledging that

lifetime registration as a sex offender under section 290 was a possible consequence of

his plea. No appellate court had ruled that subjecting a convicted section 288.3(a)

offender to mandatory sex offender registration was a violation of the constitutional right

to equal protection of the laws. Furthermore, as the Johnson court explained, Hofsheier

"attempted to limit its holding to the factual circumstances before it." (Johnson, supra,

                                              16
60 Cal.4th at p. 878.) In People v. Anderson (2008) 168 Cal.App.4th 135, which was

decided before Lee pleaded guilty, the Sixth District Court of Appeal explained that the

Supreme Court's holding in Hofsheier "was limited to mandatory sex offender

registration for violating section 288a, subdivision (b)(1). The high court repeatedly

made it clear in its opinion that its analysis was limited to an equal protection challenge

involving mandatory registration for one convicted of voluntary oral copulation with a

minor 16 or 17 years old (§ 288a, subd. (b)(1)), as compared with discretionary

registration for one convicted of voluntary sexual intercourse with a 16– or 17–year–old

minor (§ 261.5)." (Anderson, at p. 141; accord, People v. Kennedy (2009) 180

Cal.App.4th 403, 409.)

       For all of the foregoing reasons, we conclude that subjecting an offender convicted

of a violation of section 288.3(a) to the mandatory sex offender registration requirement

of section 290 does not violate the equal protection clauses of the federal and state

Constitutions because there is a rational basis─that is, the Legislature had plausible

rationales based on reasonably conceivable facts─for authorizing discretionary

imposition of sex offender registration for section 261.5 offenders while mandating

lifetime registration for other sex offenders, such as section 288.3(a) offenders.

Accordingly, we affirm the order directing Lee to register as a sex offender under section

290.




                                             17
                                     DISPOSITION

      The judgment of the trial court, including the order directing Lee to register as a

sex offender under section 290, is affirmed.



                                                                                NARES, J.

WE CONCUR:



             BENKE, Acting P. J.



                   McINTYRE, J.




                                               18
