P. v.
Filed 10/19/10 P. v. Antony CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
STEVEN ANTONY,
Defendant and Appellant.
D055510
(Super. Ct.
No. SCN257000)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Aaron H. Katz, Judge.
Affirmed.
I.
INTRODUCTION
Defendant
Steven Antony challenges the judgment of the trial court to the extent that the
judgment requires that he register as a sex offender pursuant to Penal Code[1] section 290. The trial court ordered Antony
to register as a sex offender as part of the sentence that the court imposed on
Antony after he pleaded guilty to
two counts of lewd acts with a minor between the ages of 14 and 15, and three
counts of unlawful intercourse with a minor more than three years younger than Antony. Antony contends that imposition of the
mandatory registration requirement on him, based on his convictions for lewd
acts with a minor between the ages of 14 and 15, violates his right to equal
protection under the Fourteenth Amendment
because whether mandatory sex offender registration--as opposed to discretionary
registration--applies to a defendant may be based on a discretionary charging
decision of the district attorney, rather than on the offender's conduct.
We reject Antony's
argument and affirm the judgment of the trial court.
II.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Factual Background
1.
In
September 1996, Antony, who was 25
years old, was a high school junior varsity volleyball coach. Jane Doe H., who was 14 years old, played on
the freshman volleyball team. Jane Doe
H. told Antony that she had a crush
on him, and the two subsequently developed a sexual relationship that included
kissing, Antony inserting his fingers
into Jane Doe H.'s vagina, and Jane Doe H. orally copulating Antony.
2.
In 1997, Antony
coached Jane Doe A., who was then 14 years old and played high school
volleyball.
In the
summer of 1998, Antony and Jane Doe
A. began a sexual relationship. Antony
told Jane Doe A. to keep their relationship a secret because he could go to
jail if people found out about it.
At least
once a week, Antony and Jane Doe A.
would engage in sexual activities. Antony
would orally copulate Jane Doe A. and insert his fingers into her vagina.
In April
1999, when Jane Doe A. was 16 years old and Antony
was 28 years old, the two had sexual intercourse.
In 2005,
Jane Doe A. and Antony
married. They divorced two years later.
3.
Antony
was Jane Doe K.'s volleyball coach when she was in the sixth grade. In June 2008, when Jane Doe K. was 17 years
old, she and Antony began a sexual
relationship. The two had sexual
intercourse, Antony inserted his
fingers into Jane Doe K.'s vagina, and orally copulated her. Antony
had told Jane Doe K. that he could go to jail for having a sexual relationship
with her, and Jane Doe K. agreed to keep their relationship a secret.
B. Procedural Background
The
district attorney filed an information on March 25, 2009, charging Antony with
eight counts of committing lewd and lascivious acts upon a child between 14 and
15 years of age, with Antony being at least 10 years older than the child
(§ 288, subd. (c)(1); counts 1 through 3 relating to Jane Doe
H., and counts 4 through 8 relating to Jane Doe A.); two counts of oral
copulation of a person under 18 years of age (288a, subd. (b)(1);
counts 9 and 15 relating to Jane Doe K.); penetration by a foreign object
of a person under 18 years of age (§ 289, subd. (h); counts 10 and
12 relating to Jane Doe K.); and unlawful sexual intercourse with a minor more
than three years younger than Antony
(§ 261.5, subd. (c); counts 11, 13, 14, 16, and 17 relating to
Jane Doe K.).
The
prosecutor dismissed count 17. On May 15, 2009, Antony
pled guilty to counts 1, 4, 11, 13, and 14. The trial court granted the prosecutor's motion to dismiss the remaining counts.
On June 15, 2009, the trial court
sentenced Antony to two years in
prison on count 1, and to concurrent two-year sentences on each of the
remaining counts. The trial court also
ordered Antony to register as a sex
offender under section 290.
Antony
filed a timely notice of appeal on July 10, 2009.
III.
DISCUSSION
Antony
argues that pursuant to People v.
Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier),
the fact that he must register as a sex offender under section 290, based
on his convictions for lewd and lascivious acts with a minor 14 or 15 years
old, violates principles of equal protection.
In
pleaded guilty to unlawful, nonforcible oral copulation of a 16-year-old girl,
in violation of section 288a, subdivision (b)(1). (Hofsheier,
supra, 37 Cal.4th at
p. 1192.) The trial court ordered
Hofsheier to register under the mandatory sex offender registration provisions
of section 290. (
registration requirement violated his constitutional right to equal protection
under the law because persons convicted of unlawful, nonforcible sexual
intercourse with a minor pursuant to section 261.5, under similar
circumstances, were not subjected to mandatory registration, but instead, were
subject to the court's discretionary decision whether to require
registration. (Hofsheier, at p. 1192.)
The Supreme
Court agreed that imposing mandatory registration on Hofsheier, when a defendant
convicted of committing a different voluntary sexual act with a minor 16 years
or older would not be subject to mandatory registration, would deprive
Hofsheier of equal protection. The court
directed the appellate court to remand the case to the trial court to consider
whether it should exercise its discretion to require sex offender registration
under former section 290, subdivision (a)(2)(E). (Hofsheier,
at pp. 1192–1193.)
Antony
seeks to extend Hofsheier to preclude
mandatory registration for his convictions under section 288,
subdivision (c)(1) on the ground that whether a defendant will be subject
to the mandatory registration requirement of section 290 is based on the
prosecutor's exercise of discretion to charge the defendant with a mandatory registration
offense, rather than with a different offense for which the court would have
discretion as to whether to order registration.
Antony contends that the conduct underlying the two counts of lewd and
lascivious conduct (the counts requiring mandatory registration) of which he
was convicted could have been charged, instead, as violations of
section 288, subdivision (c)(1) (for which registration is mandatory)
or section 288a,
subdivision (b)(2)[2] (for which registration is
discretionary). According to Antony, the
fact that the prosecutor has discretion to decide whether to charge a person
who commits the same acts under either section 288,
subdivision (c)(1), or rather, under section 288a,
subdivision (b)(2) violates equal protection because giving the prosecutor
such discretion allows defendants who commit the same wrongful act to be treated differently. Antony
asserts that defendants "who commit identical physical
acts . . . should not face grossly disparate treatment
based solely upon the prosecution's unfettered charging discretion."
"Claims
of unequal treatment by prosecutors in selecting particular classes of
individuals for prosecution are evaluated according to ordinary equal
protection standards. [Citation.] These standards require the defendant to show
that he or she has been singled out deliberately for prosecution on the basis
of some invidious criterion, and that the prosecution would not have been
pursued except for the discriminatory purpose of the prosecuting authorities. [Citation.]
'[A]n invidious purpose for prosecution is one that is arbitrary and
thus unjustified because it bears no rational relationship to legitimate law
enforcement interests . . . .' [Citation.]" (Manduley
v. Superior Court (2002) 27 Cal.4th 537, 568-569 (Manduley).)
Antony
acknowledges that the court in People v.
Cavallaro (2009) 178 Cal.App.4th 103, 116-117 (Cavallaro) rejected an equal protection argument similar to his
with respect to prosecutorial discretion in charging sex offenses, but contends
that Cavallaro was wrongly
decided. In Cavallaro, the defendant argued that because the prosecutor has
discretion to charge a defendant under either section 261.5,
subdivision (d)[3] (for which registration is discretionary), or
section 288, subdivision (c)(1) (for which registration is
mandatory), based on the same conduct, imposition of the mandatory registration
requirement violates equal protection.
The
Court's decision in Manduley,
which the Court rejected an argument that an amendment to Welfare and
Institutions Code section 707, subdivision (d) that gave prosecutors
discretion to file certain charges against specified minors directly in
criminal court without a judicial determination that they were unfit for
juvenile court disposition constituted a violation of equal protection. The Supreme Court concluded that the fact
that the law accorded prosecutors the discretion to determine whether to file
charges against a minor in criminal court rather than by wardship petitions in
juvenile court did not render the law unconstitutional. The Manduley
court reasoned, "[A]ll minors who meet the criteria enumerated in [Welfare
and Institutions Code] section 707[, subdivision] (d) equally are subject
to the prosecutor's discretion whether to file charges in criminal court. Any unequal treatment of such minors who
commit the same crime under similar circumstances results solely from the
decisions of individual prosecutors whether to file against particular minors a
petition in juvenile court or instead an accusatory pleading in criminal
court.
Although . . . a prosecutor's decision in this
regard can result in important consequences to the accused minor, so does a
decision by a prosecutor to initiate criminal charges against
adult. . . .
[¶] . . . [¶] . . . [N]umerous
decisions have upheld statutes conferring upon prosecutors the authority to
make analogous decisions." (
The
Davis v. Municipal Court (1988) 46
Cal.3d 64, in which it had "determined that a provision limiting a
defendant's eligibility for diversion to cases in which the prosecutor charged
a wobbler as a misdemeanor did not violate equal protection
principles." (Manduley, supra, 27
Cal.4th at p. 569.) The
the eligibility rule was 'no different than any other legislative rule which
accords differential treatment to an individual depending on whether a
prosecutor believes a greater or lesser charge is appropriate.' [Citation.]" (Manduley,
supra, at p. 569.)
Applying
the Supreme Court's reasoning in Manduley
to the prosecutorial discretion involved in charging a defendant with sexual
offenses for which mandatory registration may be required, the
prosecutor the discretion to charge the same offense as a violation of either
section 288, subdivision (c)(1), or instead, as a violation of
section 261.5, subdivision (d), does not violate principles of equal
protection. (Cavallaro, supra, 178
Cal.App.4th at p. 117.)
Antony's
equal protection argument is substantially equivalent to the argument that was
considered and rejected in Cavallaro. We see no reason to depart from the holding
in Cavallaro in addressing Antony's
equal protection challenge to his mandatory registration requirement.
IV.
DISPOSITION
The judgment of the trial court, including the court's
order directing Antony to register
as sex offender pursuant to section 290, is affirmed.
AARON, J.
WE CONCUR:
McDONALD,
Acting P. J.
O'ROURKE,
J.
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[1] Further
statutory references are to the Penal Code unless otherwise indicated.
[2] Section 288a,
subdivision (b)(2) provides:
"Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another person who
is under 16 years of age is guilty of a felony."
