Filed 7/15/13 P. v. Silberman CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

    Plaintiff and Appellant,                                           G046591

         v.                                                            (Super. Ct. No. 09NF3074)

MARC ALAN SILBERMAN,                                                   OPINION

    Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Robert R.
Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Marissa
Bejarano and Charles Ragland, Deputy Attorneys General, for Plaintiff and Appellant
                   Mark S. Devore for Defendant and Respondent.
              Defendant Marc Alan Silberman pleaded guilty to felony sexual penetration
by foreign object with a person under 18 years of age, and misdemeanor annoying or
molesting a child. The People contend the trial court erroneously failed to impose
mandatory lifetime sex offender registration required under Penal Code section 290.1 We
agree and reverse the judgment.


                               FACTUAL BACKGROUND


              The following facts are taken from the preliminary hearing transcript and
are apparently not disputed.


Victim No. 1 (count 1, § 289, subd. (h))
              On October 22, 2009, Silberman was working as a substitute teacher at a
high school where Victim No. 1 was a student. After seventh period, when all the other
students had left for the day, Silberman locked the classroom door, kissed Victim No. 1,
played with her breasts, and moved his finger in and out of her vagina several times.
Silberman also took his erect penis out of his pants, and asked Victim No. 1 to put her
mouth on it. Victim No. 1 refused, but at Silberman‟s request masturbated him until he
ejaculated. Silberman told her not to tell anybody what had happened. Victim No. 1 was
born December 27, 1992, and was about 16 years 10 months old.


Victim No. 2 (count 2, §647.6, subd. (a))
              On October 9, 2009, Silberman was working as a substitute teacher at a
high school where Victim No. 2 was a student. Silberman engaged in a conversation

       1      All further statutory references are to the Penal Code.


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with Victim No. 2 by passing notes. Silberman asked Victim No. 2 if she were to go out
with somebody, would she choose between students, staff, or faculty. Victim No. 2 said
faculty and staff were too old. Silberman said he was not so old. Victim No. 2 said she
had a girlfriend. Silberman asked Victim No. 2 if she wanted to “try something new.” At
some point, Silberman came up behind Victim No. 2 and placed his hands on her waist
while she was sitting down during class. Victim No. 2 was born February 20, 1992, and
was about 17 years 7 months old.


Victim No. 4 (count 4, § 647.6, subd. (a))
              In April or May 2009, while Victim No. 4 was walking home from high
school, she accepted a ride from Silberman. After she entered the vehicle Silberman told
Victim No. 4 that he wanted to stop by his mother‟s house to check on her. When they
arrived there Victim No. 4 noticed nobody else was home. As Victim No. 4 walked
towards the front door to leave, Silberman grabbed her by the wrists, pulled her close to
him, and tried to kiss her twice over her objections. Victim No. 4 said she wanted to
leave. Silberman told her not to tell anybody what happened, and then drove her home.
Victim No. 4 was born December 11, 1992, and was about 16 years 4 or 5 months old.


Victim No. 5 (count 5, § 647.6, subd. (a))
              In early October 2009, while Silberman was working as a substitute teacher
at a high school. Silberman asked Victim No. 5, a student, to stay after class. After all of
the other students had left, Silberman locked the door and asked Victim No. 5 if she had a
boyfriend, and whether she would be interested in dating an older man. Silberman asked
Victim No. 5 if she would be interested in being “friends with benefits.” Silberman gave
Victim No. 5 his cell phone number and asked her to reply with a yes or no to his
question but Victim No. 5 never responded. Victim No. 5 was born December 31, 1991,
and was about 17 years 10 months old.

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                            PROCEDURAL BACKGROUND


               An information charged Silberman with one count of sexual penetration by
using a foreign object with a person under 18 years of age, in violation of section 289,
subdivision (h), and four counts of annoying and molesting a child in violation of section
647.6, subdivision (a).2 Each count involved a separate alleged victim.
               Silberman initially pleaded not guilty and filed a memorandum of law
seeking a ruling mandatory lifetime sex offender registration under section 290 in this
case would violate equal protection under People v. Hofsheier (2006) 37 Cal.4th 1185
(Hofsheier), and People v. Ranscht (2009) 173 Cal.App.4th 1369 (Ranscht).
              The People filed a response asserting mandatory lifetime sex offender
registration under section 290 would not violate equal protection because Hofsheier and
Ranscht are distinguishable. Appellant also argued, in the alternative, the court should
impose discretionary lifetime sex offender registration under section 290.006.
              At a pretrial hearing on January 13, 2012 the court announced in open
court: “The court has read and considered the application by the defense and the
opposition by the prosecution for the issue of registration. The tentative ruling is that the
conduct is too egregious for the court to grant relief under Hofsheier, and the court will
require registration under 290.”
              But, after listening to the arguments of counsel the court ruled mandatory
lifetime sex offender registration for the alleged violations of section 289, subdivision (h)
and section 647 subdivision (a) would violate equal protection. The court then adopted a
“compromise” proposed by defense counsel and stated “The court . . . will require
registration for settlement purposes on this case for a period of five years. Thereafter, the

       2      Count 3 alleging a violation of section 647.6, subdivision (a) against Victim
No. 3 was later dismissed under section 995.

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registration provision will terminate upon successful completion of five years or an
extended period of probation.”
              The minute order describes the ruling in more detail. “Motion granted in
part as follows: The Court orders defendant register pursuant to 290 Penal Code for the 5
years of Probation. If defendant successfully completes Probation, the registration
requirement will end with the end of Probation. Motion denied in part as follows: The
defendant NOT registering at all pursuant to 290 Penal Code . . . . [¶] Defendant must
register pursuant to 290 Penal Code on Counts 2, 3 and 4 [§ 647.6, subd. (a)]. Counsel
stipulated that registration on Count 1 [§ 289, subd. (h)] would deny defendant Equal
Protection. [¶] The People objected to the Court requiring five years of registration and
having it end when Probation is successfully completed.”
               A few minutes later Silberman accepted the court‟s indicated sentence and
pleaded guilty. The court suspended imposition of sentence and placed him on five years
formal probation on various terms and conditions including sex offender registration.
Specifically, the court stated, “The court orders registration under 290 of the Penal Code
for the period of time of the five year probationary period. Should probation terminate
earlier, the registration will terminate automatically . . . . [¶] Should probation be
extended for one reason or another beyond the five year period of time, the 290
registration condition continues until the actual termination however long that be [sic] of
the probationary status.”
              The standard sex offender registration terms on the Tahl form (In re Tahl
(1969) 1 Cal.3d 122) were modified to conform to the ruling and state, “I understand I
will have to register for the term of probation.” The sentencing minute order also states
as a condition of probation, “Defendant [is] ordered to register pursuant to 290 Penal
Code for the duration of Probation. Defendant must successfully complete Probation in
order for the Registration to cease at the end of five years.”



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              The People appealed from, “The trial court‟s order of JANUARY 13, 2012,
imposing an order affecting the substantial rights of the People, as well as an unlawful
sentence, after defendant‟s guilty plea in the above-captioned action.”


                                       DISCUSSION


              The People contend the sentence is unlawful because lifetime sex offender
registration under section 290 is mandatory for any defendant convicted of annoying or
molesting a child under section 647.6, subdivision (a). We agree.
              Section 290 requires mandatory lifetime sex offender registration for all
persons convicted of various enumerated offenses, including section 647.6, subdivision
(a). However, the mandatory registration requirement has been held to violate equal
protection for some of the enumerated offenses. For example, in Hofsheier, our Supreme
Court held “the statutory distinction in section 290 requiring mandatory lifetime
registration of all persons . . . convicted of voluntary oral copulation with a minor of the
age of 16 or 17, but not someone convicted of voluntary sexual intercourse with a minor
of the same age, violates the equal protection clauses of the federal and state
Constitutions.” (Hofsheier, supra, 37 Cal.4th at p. 1207.)
              “Following Hofsheier, a number of appellate courts have extended its
holding to include additional felony offenses involving voluntary sexual activity between
adults and minors of various ages and age differences.[3] [Citations.] [¶] Other appellate




       3      Ranscht is one such decision. In Ranscht, the appellate court extended
Hofsheier’s holding to a defendant convicted of voluntary digital penetration of a 13-
year-old‟s vagina, under section 289, subdivision (h). The People concede under Ranscht
Silberman cannot be subjected to mandatory lifetime registration as a result of his
conviction under section 289, subdivision (h) for his conduct with Victim No. 1.


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courts have declined to extend Hofsheier’s holding to defendants convicted of various
sexual offenses with minors . . . . [Citations.] [¶] The appellate courts that found no
equal protection violation focused on the dissimilarity between the two classes of
offenders . . . . In particular, they noted the following distinctions: (1) the young age of
the minor and/or the age difference of more than 10 years between the defendant and the
minor and (2) the specific intent requirement of the relevant statutes.” (People v.
Brandao (2012) 203 Cal.App.4th 436, 443-444 (Brandao).)
              At the time of sentencing here, no reported decision had considered the
question of whether the holding of Hofsheier should be extended to persons convicted of
annoying or molesting a child under section 647.6, subdivision (a). Less than one month
later, the question was answered in Brandao, and the appellate court declined to extend
the holding of Hofsheier to persons convicted of annoying or molesting a child under
section 647.6, subdivision (a). (Brandao, supra, 203 Cal.App.4th at p. 448.)
              We believe the reasoning in Brandao is sound. The court there focused on
the abstract elements of the offense rather than the particular facts, because “appellant‟s
equal protection challenge [was] a facial one . . . .”4 (Brandao, supra, 203 Cal.App.4th at
p. 442.) The Brandao court noted a violation of section 647.6, subdivision (a), can
involve mere words or conduct much less overtly sexual than felony offenses found not
subject to mandatory registration under Hofsheier. (Id. at p. 445.) “Whatever the nature
of the conduct, however, to be convicted under section 647.6, subdivision (a), [the]
conduct would need to have “„unhesitatingly irritated or disturbed a reasonable
person . . . regardless of the defendant‟s intent.‟” [Citation.] Hence, section 647.6 is
distinguishable from Hofsheier-type offenses, which do not include this requirement and
which all involve voluntary conduct between two willing parties.” (Ibid.)


       4      Courts which have applied Hofsheier byond section 288a, subdivision
(b)(1) have similarily focused on the [elements of] offense . . . without looking to the
underlying acts.” (Ranscht, supra, 173 Cal.App.4th at p. 1375.)

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               The Brandao court also focused on another key difference between
voluntary sex offenses in Hofsheier-type cases and involuntary section 647.6, subdivision
(a) offenses. The “latter statute is limited to a „comparatively narrow province,‟ i.e., to
offenders whose conduct, in addition to being objectively irritating and disturbing, is
motivated by an unnatural or abnormal interest in children.” (Brandao, supra, 203
Cal.App.4th at p. 445, italics added.) “Finally, while older minors may be victims under
section 647.6, [subdivision (a)], and while the perpetrator need not be more than 10 years
older than the victim, the statute also encompasses the youngest of minors as well as
perpetrators who are much older than their victims.” (Id. at p. 446.)
               Thus, the Brandao court concluded there is a rational basis for the statutory
classification requiring lifetime sex offender registration for persons convicted of
violating section 647.6, subdivision (a). (Brandao, supra, 203 Cal.App.4th at p. 446.)
“[F]or all these reasons, section 647.6, subdivision (a), simply is not comparable to the
voluntary sex offenses at issue in Hofsheier-type cases, in which the only difference
between the crimes was the nature of the sexual act and, in some cases, the ages of the
defendant and the victim.” (Ibid.) We agree with these conclusions.
               Silberman contends the Brandao court “erroneously dismissed defendant‟s
reliance on Newland v. Board of Governors (1977) 19 Cal.3d 705, 708.” We are not
persuaded. As the Brandao court put it “Newland is not particularly relevant to the
present case in that the court‟s focus there was on the arbitrary distinction between
misdemeanants and felons generally, for purposes of eligibility to request a certificate of
rehabilitation.” (Brandao, supra, 203 Cal.App.4th at p. 447.)
               Silberman also contends Brandao does not apply because the equal
protection challenge there was a facial one whereas the equal protection challenge here is
to the mandatory lifetime sex offender registration requirement as applied to the facts of
this case. However, as we will demonstrate, looking at the facts of this case does not lead
to a different result.

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              In this context, of course we agree with Silberman‟s statement that as a
general matter, “On appeal, factual findings made by the trial court must be accepted if
supported by substantial evidence.” The problem is Silberman has not directed our
attention to any such factual findings and our independent review of the record reveals
none. The trial court‟s only statement regarding the facts of this case was made in the
tentative ruling on the registration issue when the court announced, “The tentative ruling
is that the conduct is too egregious for the court to grant relief under Hofsheier . . . . ”
(Italics added.)
              We agree with the trial court Silberman‟s conduct was egregious. He
annoyed or molested four separate victims on four separate occasions.5 In each instance,
he took advantage of his position of trust and confidence as a teacher to commit the
offenses, and the victims were particularly vulnerable because they were his students.
Furthermore, the manner in which he carried out the crimes indicates planning and
sophistication. He arranged to be alone with Victim Nos. 1, 4 and 5, and locked the
classroom doors before committing the crimes against Victim Nos. 1 and 5. In addition,
the conduct was not voluntary on the part of Victim Nos. 2, 4 and 5. Silberman even
specifically instructed Victim Nos. 1 and 4 not to tell anybody what happened. Finally,
the age difference between Silberman and the victims was 10 years or more. The victims
were all 16 or 17 years old and Silberman was 27 years old at the time.
              In sum, the facts of this case demonstrate Silberman was “motivated by an
unnatural or abnormal sexual interest” in underage female students, something he
expressly admitted in the factual basis for his guilty pleas. These facts further
demonstrate Silberman has a propensity to commit such offenses which presents a
significant risk of reoffending.


       5      For these purposes we include Victim No. 1, even though his unlawful
conduct with her was voluntary and he was charged in count 1 with violating section 289,
subdivision (h) rather than section 647.6, subdivision (a).

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              Under these circumstances we perceive no equal protection violation in the
mandatory lifetime sex offender registration requirement under section 290 either on its
face or as applied to the facts underlying Silberman‟s section 647.6, subdivision (a)
convictions. This is true even though he might not be subjected to mandatory lifetime
registration under section 290 for engaging in voluntary intercourse, oral copulation or
digital penetration with any one of these victims. None of the Hofsheier-type cases cited
by Silberman involved multiple victims like this case.
              Based on all of the foregoing, we hold the trial court erred in failing to
impose mandatory lifetime sex offender registration pursuant to section 290 as a result of
Silberman‟s convictions under section 647.6, subdivision (a). It follows the sentence is
not authorized and the judgment must be reversed. (People v. Serrato (1973) 9 Cal.3d
753, 763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583.)
              With regard to Silberman‟s contention he must be allowed to withdraw his
plea in light of our holding, we note this is a matter which may involve disputed factual
questions and, it is more appropriately directed to the trial court in the first instance.




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                                     DISPOSITION


             The judgment is reversed and the case is remanded to the trial court for
resentencing or other proceedings consistent with this opinion.



                                                 THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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