Filed 7/24/17 P. v. Herrera CA4/3
Received for posting 7/25/17





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY EUGENE HERRERA,

Defendant and Appellant.

G053573

(Super. Ct. No. M-16307)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.
Robert Salisbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Henry Eugene Herrera appeals from the trial court’s order denying his petition for a certificate of rehabilitation and pardon (Pen. Code, § 4852.01; all further statutory references are to this code). He argues the court abused its discretion in summarily denying his petition on grounds that the certificate procedure, by it terms, “does not apply to persons . . . convicted of a violation of . . . section 288.” (§ 4852.01, subd. (c).) Herrera contends this statutory bar violates equal protection because it does not extend to offenders who jointly commit with another person more serious crimes, specifically those who are convicted of forcible oral copulation in concert on a child under the age of 14 (§ 288a, subd. (d)(2)) or forcible sodomy in concert on a child (§ 286, subd. (d)(2)). As we explain, Herrera is not similarly situated with these offenders and, in any event, a rationale based on arguably lesser culpability, human weakness or susceptibility in groups, and greater prospects for reform supports the distinction the Legislature has drawn. Consequently, his equal protection challenge fails.

I
FACTUAL AND PROCEDURAL BACKGROUND
Herrera pleaded guilty in May 1998 to committing a lewd and lascivious act on a child 14 or 15 years of age when he was at least 10 years older than the child, in violation of section 288, subdivision (c). His plea is not in the record, but the police report from the incident indicates the victim knew him through his involvement in her church as a youth guidance leader and she also worked for him cleaning homes. Her father dropped her off at Herrera’s house to attend a banquet, but when it was canceled she stayed overnight in a separate bedroom from Herrera and his wife. When his wife went to work the next morning, Herrera showed the victim pornographic polaroid photographs and turned the conversation to sexual matters, which he continued in his bedroom where he had to lay down because he recently had thrown out his back.
According to the victim, Herrera rolled over and used his leg and arm to hold her down, removed her shirt and bra, and caressed and sucked on her right breast. When he changed positions, she extricated herself, grabbed her clothing and left the room. Herrera was “very remorseful” and fully cooperative in his police interview six months later.
Under his plea agreement, Herrera served 90 days in custody and three years on probation, which he completed without any violations. He submitted his petition for rehabilitation nearly 18 years after the offense, in June 2015 when he was 71 years old, and included a letter from his wife stating that “[f]rom the day he was confronted with his crime, he has been remorseful and refuses to forgive himself for this action.” He also included a progress report from the sex offender treatment program he completed in 2000 as part of his probation terms; the report noted he “remain[ed] motivated not to reoffend,” was “hypervigilant regarding situations that may be considered high risk,” and that he passed a polygraph examination revealing no new or concerning information. In 2001, after fulfilling his probation terms, Herrera successfully moved to have his conviction reduced to a misdemeanor. Herrera also included in his petition a recent, comprehensive psychological exam concluding he posed a low risk of sexual recidivism; his psychologist supported his petition.
At the hearing on the petition, the trial court observed that based on his conviction for a section 288 offense, Herrera “has never been statutorily eligible at any time pertinent to this case.” Counsel raised an equal protection challenge, which the court rejected, and Herrera now appeals.

II
DISCUSSION
Herrera contends the trial court abused its discretion in concluding he did not qualify for a certificate of rehabilitation on the merits or because of the statutory bar, which he asserts violates equal protection. Generally, “whether to grant or deny a petition for a rehabilitation certificate rests in the sound discretion of the trial court, and the court’s ruling will not be disturbed on appeal unless there is a clear showing of abuse of discretion.” (People v. Failla (2006) 140 Cal.App.4th 1514, 1519.) But an appellate court reviews equal protection challenges de novo. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632.) We turn to that argument first.
As an initial predicate to establish an equal protection violation, the defendant must show the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 877 (Johnson).) If the groups are not similarly situated or treated differently, the reviewing court need go no further in its analysis. (People v. Johnson (2004) 32 Cal.4th 260, 268.) A defendant clearing the first hurdle must show the challenged classification bears no rational relationship to a legitimate state purpose. (Johnson, at p. 878.)
Herrera contends his initial burden is satisfied merely by showing offenders committing different sex acts may be similarly situated. He relies on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which was overruled by Johnson, supra, 60 Cal.4th 871.) As Johnson acknowledged, “Hofsheier concluded that, despite the different sex acts involved, persons convicted of nonforcible oral copulation with minors and persons convicted of unlawful sexual intercourse with minors are similarly situated so as to merit an examination whether distinctions between the two groups justify unequal [sex offender] registration treatment. [Citation.] (Johnson, at p. 882.)
Herrera asserts this conclusion in Hofsheier survived Johnson and, despite the different sex acts at issue here, remains controlling because Johnson refused to reconsider it. We disagree. All Johnson said was, “We need not reconsider this conclusion, because, in any event, we find Hofsheier erroneous in its rational basis analysis.” (Johnson, supra, 60 Cal.4th at p. 882.) Moreover, Hofsheier’s conclusion that persons convicted of oral copulation and sexual intercourse with minors are similarly situated does not mean persons convicted of committing nonforcible lewd acts are similarly situated to persons who in concert commit forcible oral copulation or sodomy on a child.
The statutes distinguish between persons who commit nonforcible sex offenses against children while acting alone (§ 288) and those who commit forcible sexual offenses against children while acting in concert (§§ 286, subd. (d)(2), 288a, subd. (d)(2) ). The latter group may include persons who merely encouraged or facilitated the crimes because there is no requirement that an aider and abettor either participate in or be personally present during the criminal act to be guilty of acting in concert. (People v. Farr (1997) 54 Cal.App.4th 835, 845.)
That the relevant distinction is between whether an offender acted alone, rather than whether he or she used force, appears to be no accident. All section 288 offenders who commit a lewd and lascivious act on a child under the age of 14, by force or not, are treated in the same manner under section 4852.01; namely, such persons are precluded from requesting a certificate of rehabilitation. (§ 4852.01, subd. (c).) That section similarly expressly precludes certification for a person who acts alone and forcibly to copulate a child orally (§ 288a, subd. (c)) or acts alone forcibly to sodomize a child (§ 286, subd. (c)). (§ 4852.01, subd. (c).) In contrast, as noted, those acting in concert are not expressly barred. Such a strongly-drawn differentiation indicates the two groups of offenders are not similarly situated.
Alternatively, even if similarly situated, the disparate treatment of these two groups of offenders withstands rational basis scrutiny. “Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, ‘equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”’ [Citation.] ‘This standard . . . does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in “‘rational speculation’” as to the justifications for the legislative choice [citation].’” (Johnson, supra, 60 Cal.4th at p. 881.) “To mount a successful rational basis challenge, a party must ‘“negative every conceivable basis”’ that might support the disputed statutory disparity. [Citation.] If a plausible basis exists for the disparity, courts may not second-guess its ‘“wisdom, fairness, or logic.”’ [Citation.]” (Ibid.; People v. Romo (1975) 14 Cal.3d 189, 196 [constitutional guaranty of equal protection “does not . . . require absolute equality”].)
The Legislature rationally could conclude persons who act in concert with others (aiders and abettors) may be more likely to rehabilitate and less likely to reoffend than someone who commits a similar crime acting alone. Although aiders and abettors bear equal punishment as principals (§ 31), they may have less absolute moral culpability with a comparatively lesser role if the crime is instigated or perpetrated by others. (See, e.g., Graham v. Florida (2010) 560 U.S. 48, 68 [noting susceptibility of youth in particular to outside influences].) And one who has succumbed to the impulses of others or group action may have better prospects for reform simply through maturity or learning to avoid “bad apples” or group dynamics, but a perpetrator who has acted alone cannot similarly escape his or her own company. Thus, there is a conceivable and plausible basis for the Legislature’s decision to bar section 288, subdivision (a), offenders but not section 288a, subdivision (d)(2), or section 286, subdivision (d)(2), offenders from obtaining a certificate of rehabilitation. Herrera’s equal protection argument therefore fails. (Johnson, supra, 60 Cal.4th at p. 881)
Because we conclude Herrera is statutorily ineligible for a certificate of rehabilitation, we do not address his abuse of discretion argument.


III
DISPOSITION
The trial court’s postjudgment order denying Herrera’s petition for a certificate of rehabilitation is affirmed.



ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.