Filed 12/4/13 P. v. Johnson CA3
Reposted to provide correct document
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072646

         v.                                                                      (Super. Ct. No. 11F05748)

PETER JESSE JOHNSON,

                   Defendant and Appellant.




         Officers executed a search warrant at defendant Peter Jesse Johnson’s home,
conducted an analysis of his computer, and located more than 30 videos depicting minors
(some under 10 years old) committing acts of sexual intercourse with adults.
         Defendant pleaded no contest to possession or control of child pornography. (Pen.
Code, § 311.11, subd. (a).)1 The trial court granted defendant’s motion to reduce the


1 Undesignated statutory references are to the Penal Code.


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offense to a misdemeanor (§ 17, subd. (b)), denied his equal protection challenge to the
imposition of sex offender registration, and placed defendant on formal probation for
three years with various terms and conditions, including 360 days in jail and the
requirement that defendant register as a sex offender.
       On appeal, defendant reasserts his claim that it violates equal protection to impose
mandatory lifetime sex offender registration on his misdemeanor conviction for
possession of child pornography.
       We conclude the holding in People v. Gonzalez (2012) 211 Cal.App.4th 132
(Gonzalez) is on point. A person convicted of possessing child pornography, an offense
requiring mandatory registration, is not similarly situated to a person convicted of
unlawful sexual intercourse with a minor, an offense for which registration is at the
discretion of the trial court, and hence defendant’s equal protection claim lacks merit.
We will affirm the judgment.
                                        DISCUSSION
       Sex offender registration is mandatory for the sex offenses specified in section
290, subdivision (c). (§ 290, subd. (c).) The offense involved in this case, a violation of
section 311.11, is included in section 290, subdivision (c). All other sex offenses are
subject to registration at the sentencing court’s discretion “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 purposes of sexual gratification. The court shall state on the record the
reasons for its findings and the reasons for requiring registration.” (§ 290.006.)
       Defendant claims it violates equal protection to impose mandatory registration on
his misdemeanor section 311.11 violation, when similarly situated offenders who commit
unlawful sexual intercourse with a minor in violation of section 261.5 are only subject to
discretionary registration. Defendant cites People v. Hofsheier (2006) 37 Cal.4th 1185
(Hofsheier) in support of his contention. That case involved a 22–year–old man who
engaged in nonforcible oral copulation with a 16–year–old girl. (Id. at pp. 1192–1193.)

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The California Supreme Court explained that the first prerequisite to a meritorious equal
protection claim is a showing that the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner. (Id. at p. 1199.) The Supreme
Court observed that “section 288a(b)(1) [oral copulation] and section 261.5 [sexual
intercourse] both concern sexual conduct with minors. The only difference between the
two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation
with minors and persons convicted of sexual intercourse with minors ‘are sufficiently
similar to merit application of some level of scrutiny to determine whether distinctions
between the two groups justify the unequal treatment.’ [Citation.]” (Hofsheier, supra,
37 Cal.4th at p. 1200.) The Supreme Court concluded there was no rational basis for the
disparate treatment (Hofsheier, supra, 37 Cal.4th at pp. 1206–1207), and thus the
defendant in that case established a violation of equal protection. (Id. at pp. 1201, 1207.)
       Here, defendant argues he is similarly situated to offenders convicted of unlawful
sexual intercourse with a minor because sections 261.5 [sexual intercourse] and 311.11
[child pornography] both concern a person under the age of 18 years personally who
engaged in or simulated sexual conduct. He claims the only difference is the nature of
the sexual act: the person who violated section 261.5 was actively engaged in sexual
misconduct with another person, while the person who violated section 311.11 was not;
both, however, involved the victimization of the minor.
       But in Gonzalez, supra, 211 Cal.App.4th 132, the Court of Appeal held that
offenders convicted of section 311.11 are not similarly situated to offenders convicted of
section 261.5. (Id. at pp. 134, 136, 139.) Gonzalez explained that child pornography is
capable of duplication and thus offenders contribute to revictimization; possession of
child pornography can involve child victims of any age, and especially those under 14,
while statutory rape is the primary offense only when the victim is 14 or older; it is often
impracticable to locate the victim of child pornography to establish the actual age of the



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child; and the production of child pornography often involves force, fear, or duress. (Id.
at pp. 136-139.)
       Defendant criticizes the holding in Gonzalez, noting that victims of statutory rape
can also be revictimized. But the court in Gonzalez explained that although an offender
can be prosecuted on multiple counts of statutory rape, it is often difficult to prosecute
everyone involved in child pornography. (Gonzalez, supra, 211 Cal.App.4th at p. 137.)
Defendant nonetheless argues that the degree of revictimization in child pornography
cases “is a far cry from revictimization through multiple physical acts.” We decline to
minimize the level of victimization involved in child pornography. The voters passed
Proposition 83 (Initiative Measure, Prop. 83, § 8, approved Nov. 7, 2006, eff. Nov. 8,
2006), and section 2 of that measure provides in part: “(c) Child pornography exploits
children and robs them of their innocence. FBI studies have shown that pornography is
very influential in the actions of sex offenders. Statistics show that 90% of the predators
who molest children have had some type of involvement with pornography. Predators
often use child pornography to aid in their molestation. [¶] (d) The universal use of the
Internet has also ushered in an era of increased risk to our children by predators using this
technology as a tool to lure children away from their homes and into dangerous
situations. Therefore, to reflect society’s disapproval of this type of activity, adequate
penalties must be enacted to ensure predators cannot escape prosecution.” (See
Historical and Statutory Notes, 48 West’s Ann. Pen. Code (2008 ed.) foll. § 311.11,
p. 536.)
       Defendant further questions the court’s suggestion in Gonzalez that unlike child
pornography, statutory rape is characteristically “voluntary.” (Gonzalez, supra, 211
Cal.App.4th at p. 139.) But the court in Gonzalez was simply noting the distinction
articulated in Hofsheier between forcible and nonforcible conduct.
       Sections 261.5 and 288a make distinctions based on the age of the perpetrator and
the age of the victim, recognizing that a voluntary sexual act between a 19 year old and

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his 17-year-old girlfriend should be treated differently than a sexual act between a 35
year old and a 13 year old. But there are no such distinctions based on age or use of force
included in section 311.11. (See also §§ 311.1, 311.2, subds. (b), (c), (d), 311.3, 311.4,
311.10.) There is no lesser penalty or alternative statute that would apply when the minor
is under 18 but over 14, or when force is not used. This indicates that the Legislature
does not view pornography involving older children to be any less serious than
pornography involving younger children. In fact, section 311.11 previously applied only
to the possession of child pornography depicting children under the age of 14 but the
Legislature increased the age to 18 in 1994. (Stats. 1994, ch. 55, § 4, pp. 436-437.)
       We conclude that persons convicted of section 311.11, subdivision (a) are not
similarly situated to those convicted of section 261.5. Accordingly, it is not necessary for
us to apply a level of scrutiny. Defendant’s equal protection claim lacks merit.
                                      DISPOSITION
       The judgment is affirmed.




                                                                MAURO                     , J.


We concur:


             RAYE                    , P. J.


             NICHOLSON                , J.




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