Filed 6/3/15 P. v. Rosno 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                                                F067510

         Plaintiff and Respondent,                                        (Super. Ct. No. 13CRRP681385)

                   v.                                                                     OPINION

MARCEL JEROME ROSNO,

         Defendant and Appellant.



         APPEAL from order of the Superior Court of Fresno County. W. Kent Hamlin,
Judge.
         Law Offices of Bruce W. Nickerson and Bruce W. Nickerson for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E.
Neeley, 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 and pardon under various conditions.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 with a child).
       Appellant Marcel Jerome Rosno filed a petition in the trial court for a certificate of
rehabilitation. The petition alleged Rosno was convicted of violation of section 288,
subdivision (c)(1), lewd and lascivious conduct with a child of 14 or 15 when the
perpetrator is more than 10 years older than the child. The trial court conducted a hearing
at which the People appeared and opposed the petition. The trial court rejected Rosno’s
equal protection argument and denied the petition, concluding, in part, Rosno was not
eligible to obtain a certificate of rehabilitation because section 4852.01, subdivision (d)
specifically precludes relief for defendants convicted of violating section 288. We find
no error and affirm the order.
                                       DISCUSSION
       As he did in the trial court, Rosno argues the trial court violated his constitutional
right to equal protection of the laws because a defendant convicted of violating section

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.
261.5, subdivision (d), nonforcible intercourse with a victim under age 16 when the
perpetrator is over 21, is similarly situated, and he or she is not prevented from obtaining
a certificate of rehabilitation by section 4852.01, subdivision (d).
       “‘“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
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).)



                                              3.
       Rosno 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.)
“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.)
       In his opening brief, Rosno relied on Hofsheier as authority for his argument.
While this case was pending, the Supreme Court overruled Hofsheier in Johnson v.
Department of Justice (2015) 60 Cal.4th 871 (Johnson). We requested additional
briefing from the parties on the effect, if any, of Johnson to the issues in this appeal.
       We begin 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). He argued the mandatory requirement that he register as a sex
offender pursuant to section 290 violated his constitutional right to equal protection of the
laws because another, similarly situated group, those defendants convicted of nonforcible
sexual intercourse with a minor 16 years or older (§ 261.5), were not subject to
mandatory registration as a sex offender, but instead would be required to register as a
sex offender only if the trial court exercised its discretion and ordered him or her to do so.
       The Supreme Court held the mandatory registration requirement violated
Hofsheier’s right to equal protection: “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

                                              4.
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.)
       In Johnson, supra, 60 Cal.4th 871 the defendant 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 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. (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

                                               5.
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
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


                                             6.
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.

        “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


                                      7.
       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
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, including the four cases on which Rosno relied (People v.
Ranscht (2009) 173 Cal.App.4th 1369; 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.)
       As Rosno concedes in his response to our request for additional briefing, Johnson
has completely eviscerated his argument. Accordingly, we conclude Rosno’s right to
equal protection was not violated.



                                             8.
                                  DISPOSITION
     The order denying Rosno’s petition is affirmed.

                                                       _____________________
                                                                 FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
DETJEN, J.




                                         9.
