Filed 6/28/13 P. v. Musgrave CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136434
v.
MOLLY ANNE MUSGRAVE,                                                 (San Mateo County
                                                                     Super. Ct. No. SC074226A)
         Defendant and Appellant.


         Defendant Molly Anne Musgrave was convicted of oral copulation and sexual
penetration of a minor. As part of Musgrave‟s sentence, the trial court imposed
mandatory lifetime sex-offender registration. On appeal, Musgrave contends that this
part of her sentence violated equal protection principles. We agree. We reverse the order
and remand to the trial court to consider whether discretionary sex-offender registration is
appropriate.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND

         Musgrave was 23 years old when, in June 2011, she met a 15-year-old girl through
a social networking website. Although the girl claimed to be 18 years old in her online
profile, she informed Musgrave during their first contact that she was actually only 15.
Musgrave and the girl subsequently met “about 20 times” in June. They engaged in
sexual activity, including kissing, touching, digital penetration, and oral copulation. In




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August, Musgrave drove the girl to Southern California, where she digitally penetrated
her. According to Musgrave, all sexual activity with the 15-year-old girl was consensual.
         When the mother of the 15 year old learned of the relationship, she notified San
Mateo police, who arrested Musgrave. Musgrave was charged by information with
several offenses. She thereafter pleaded no contest under a plea agreement to one felony
count of sexual penetration of a minor under 16 by a person over 21 (Pen. Code, § 289,
subd. (i))1 and one felony count of oral copulation of a minor under 16 by a person over
21 (§ 288a, subd. (b)(2)), and the balance of the information against her was dismissed.
         The probation department recommended that Musgrave be sentenced to prison for
two years (the maximum contemplated by her plea agreement) and that she be required to
register as a sex offender under section 290. According to the department, Musgrave
“was an active participant in sexually abusing the underage vulnerable victim,” “inflicted
emotional injury on the child,” and “engaged in violent conduct which indicates she is a
serious danger to society.”
         At the sentencing hearing, Musgrave‟s attorney disagreed with the probation
department‟s assessment, emphasized that the relationship was consensual, suggested that
it was the 15 year old‟s mother (as opposed to the 15 year old) who felt victimized by
what happened, and recommended that Musgrave be placed on probation. Counsel also
argued that the trial court was not required to impose lifetime sex-offender registration on
Musgrave under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which held that
imposition of mandatory lifetime sex-offender registration for persons convicted of
voluntary oral copulation with a 16- or 17-year-old minor violated equal protection. The
trial court disagreed that Hofsheier applied because that case involved situations where
the victims were older than 16, whereas the victim in this case was younger than 16.
         The trial court suspended the imposition of sentence, placed Musgrave on five
years‟ supervised probation and ordered that she serve 10 months in jail. The court
believed that the proceedings had been “a very educational process” for Musgrave and


1
    All statutory references are to the Penal Code.


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commented that “I don‟t believe we are ever going to see you [Musgrave] in a situation
again where you are engaging in sexual relationships or relations with children.” The
court nonetheless ordered Musgrave to register as a sex offender under section 290 as a
“lifetime registration [requirement] as well as a condition of probation,” apparently
believing that it lacked discretion not to impose such an order.2
       One week after filing a timely notice of appeal, Musgrave filed a motion to recall
her sentence and again argued that imposing mandatory lifetime sex-offender registration
violated her rights to equal protection under Hofsheier, supra, 37 Cal.4th 1185, this time
citing additional cases. The trial court concluded that the motion was procedurally
defective because the court was unable to entertain a motion to recall the sentence, and it
denied the motion without prejudice to Musgrave filing a motion to modify the terms of
her probation.3



2
 The court stated that registration was ordered as “lifetime registration as well as a
condition of probation.” The minute order, by contrast, states that lifetime registration
was not a condition of probation.
3
  Musgrave‟s appellate attorney has written two letters to this court informing us that,
after briefing in this court was complete, the trial court informed the parties that it wanted
to reconsider its order imposing sex-offender registration, and invited Musgrave to file a
motion to modify probation. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1064 [general
rule is that filing notice of appeal vests jurisdiction of cause in appellate court until
determination of appeal and issuance of remittitur, thereby divesting trial court of
jurisdiction over anything affecting judgment].) Apparently, Musgrave filed such a
motion, which the District Attorney did not oppose, and the trial court struck the lifetime
sex-offender registration requirement and instead ordered Musgrave to register as a sex
offender under section 290.006 (ante, § II.B.) for the duration of her probation. We
gather from counsel‟s letter that Musgrave objects to the imposition of sex-offender
registration given the trial court‟s finding at the original sentencing hearing that
Musgrave was not likely to reoffend. (See, e.g., Wright v. Superior Court (1997)
15 Cal.4th 521, 527 [purpose of lifetime sex-offender registration is to prevent
recidivism]; People v. King (2007) 151 Cal.App.4th 1304, 1309 [although court may
impose temporary registration requirement as condition of probation, it may not do so
under registration statutes, which mandate lifetime, as opposed to temporary,
registration].) The validity of the trial court‟s modification order is not currently before
us.


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                                              II.
                                         DISCUSSION

       A. Mandatory Sex-Offender Registration Violates Equal Protection.
       On appeal, Musgrave renews her argument that imposing mandatory sex-offender
registration on her pursuant to section 290 violates equal protection under Hofsheier,
supra, 37 Cal.4th 1185. Respondent concedes the point. Because the concession is
appropriate, we reverse and remand to the trial court.
       As mentioned above, our Supreme Court held in Hofsheier, supra, 37 Cal.4th
1185 that imposing mandatory lifetime sex-offender registration on persons convicted of
voluntary oral copulation with a 16- or 17-year-old minor (§ 288a, subd. (b)(1)) violated
equal protection principles, in the absence of a similar requirement for those convicted of
voluntary sexual intercourse with a minor (§ 261.5). (Hofsheier, supra, 37 Cal.4th at
pp. 1207-1209.) Here, Musgrave was convicted of two sex offenses, both of which are
subject to the mandatory registration requirements under section 290, subdivision (c).
While it is unclear which one of the offenses the trial court relied on in subjecting
Musgrave to lifetime registration, imposing this requirement for either one violates equal
protection principles.
       As for Musgrave‟s conviction for oral copulation by a person over 21 with a
person who is under 16 (§ 288a, subd. (b)(2)), a series of cases have followed Hofsheier,
supra, 37 Cal.4th 1185 in concluding that mandatory registration for this crime violates
equal protection because defendants over 21 convicted of sexual intercourse with a
person under 16 would not be required to register. (People v. Luansing (2009)
176 Cal.App.4th 676, 678, 685 [30 year old convicted of oral copulation with person
under 16]; People v. Hernandez (2008) 166 Cal.App.4th 641, 644-645 [22 year old
convicted of oral copulation with 14 year old]; People v. Garcia (2008) 161 Cal.App.4th
475, 478 [26-year-old defendant engaged in oral copulation with 14 year old]; Luansing,
Hernandez, and Garcia disapproved on another ground in People v. Picklesimer (2010)
48 Cal.4th 330, 338, fn. 4.) In this case, the trial court focused on the fact that the victim
was under 16, whereas in Hofsheier the victim was 16. This distinction, however, was


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rejected in Luansing, Hernandez, and Garcia, which all involved sexual activity with
persons under 16. (Luansing at pp. 684-685; Hernandez at p. 651; Garcia at pp. 481-
482.) “If there is no rational reason for [the] disparate treatment [of persons convicted of
oral copulation and persons convicted of sexual intercourse] when the victim is 16 years
old, there can be no rational reason for the disparate treatment when the victim is even
younger . . . .” (Garcia at p. 482.) We agree.
       As for Musgrave‟s conviction for sexual penetration by a person older than 21
with a person under 16 (§ 289, subd. (i)), we find People v. Ranscht (2009)
173 Cal.App.4th 1369 persuasive. There, defendant was convicted of sexually
penetrating a minor under 18 in violation of section 289, subdivision (h). (Ranscht at
p. 1371.) The court held that imposing mandatory sex-offender registration for this
offense violated equal protection because defendants convicted of unlawful sexual
intercourse with a victim the same age would not be subject to mandatory registration.
(Id. at p. 1375.) Here, if Musgrave had been convicted of unlawful sexual intercourse
with a 15 year old, she would not have been subject to mandatory sex-offender
registration. Thus, we agree with the parties that under Ranscht, mandatory registration
for sexual penetration violates equal protection. We therefore order that mandatory sex-
offender registration under section 290 be stricken.
       B. Discretionary Registration.
       Notwithstanding our reversal of mandatory registration, the trial court retains
discretion to impose a requirement to register as a sex offender under section 290.006,
which provides that a person shall be ordered to register for any offense not specified in
section 290, subdivision (c) “ „if the court finds . . . that the person committed the offense
as a result of sexual compulsion or for purposes of sexual gratification.‟ . . . [T]he trial
court must state on the record the reasons for its findings and the reasons for requiring
registration.” (Hofsheier, supra, 37 Cal.4th at p. 1197 [interpreting former § 290,
subd. (a)(2)(E)].) To require registration under this statute, “the trial court must engage
in a two-step process: (1) it must find whether the offense was committed as a result of
sexual compulsion or for purposes of sexual gratification, and state the reasons for these


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findings; and (2) it must state the reasons for requiring lifetime registration as a sex
offender. By requiring a separate statement of reasons for requiring registration even if
the trial court finds the offense was committed as a result of sexual compulsion or for
purposes of sexual gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.” (Ibid.) “Most importantly,
the trial court must consider the likelihood defendant will reoffend.” (People v.
Thompson (2009) 177 Cal.App.4th 1424, 1431; see also People v. Garcia, supra,
161 Cal.App.4th at p. 485.) We leave it to the trial court to exercise its discretion
whether such a finding can be made in light of its comments at the original sentencing
hearing that it did not believe that Musgrave would reoffend. On remand, evidence of
Musgrave‟s behavior since the time of the original sentencing hearing is relevant in
determining the likelihood of reoffense and the necessity for registration and should be
considered. (Garcia at p. 485.)
                                             III.
                                        DISPOSITION
       The trial court‟s order imposing mandatory sex-offender registration on Musgrave
under section 290, subdivision (c) is reversed. The matter is remanded to the trial court
to determine whether to require Musgrave to register as a sex offender under
section 290.006.



                                                    _________________________
                                                    Humes, J.


We concur:


_________________________
Ruvolo, P. J.


_________________________
Rivera, J.


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