Page v. Superior Court
Filed 2/27/12 Page v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOHN EDWIN PAGE, JR.,
Petitioner,
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
E054062
(Super.Ct.Nos.
RIC1109690 &
RIF1100862)
OPINION
ORIGINAL
PROCEEDINGS; petition for writ of mandate. Gary B. Tranbarger, Judge. Petition granted.
Gary
Windom, Public Defender, and Joseph J. Martinez, Deputy Public Defender, for
Petitioner.
No
appearance for Respondent.
Paul
Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney, for
Real Party in Interest.
Petitioner seeks to be
relieved of the requirement to register
as a sex offender under Penal Code section 290 et seq.
denying his petition for writ of mandate insofar as it found that there was no
denial of equal protection in applying the mandatory registration requirement
to him. Accordingly, we grant the
petition for writ of mandate and direct the trial court to conduct a new
hearing to determine whether the discretionary registration requirement should
be applied to him.
FACTUAL
AND PROCEDURAL BACKGROUND
In 1993, petitioner pleaded
guilty to a violation of section 288a, subdivision (b)(2), oral copulation of a person
under 16 years of age by a person over the age of 21. According to the police reports, petitioner
was 35 at the time of the incident and the victim was 14.
Petitioner
alleges that he has been in no further trouble until now. A felony complaint has been filed charging
him with failing to register under section 290.
Petitioner
then filed a petition for writ of mandate based on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier)
and People v. Picklesimer
(2010) 48 Cal.4th 330 (Picklesimer),
the section 288a, subdivision (b)(2) conviction violates
require discretionary registration in his case.
The
trial court noted a conflict in the Courts of Appeal whether
subdivision (b)(2) convictions. The
trial court believed the Manchel
denied the petition for mandate.
Petitioner
filed the instant petition for mandate to challenge the trial court’s denial
and has sought a stay of the criminal
prosecution. We summarily
denied the petition, believing that he had an adequate remedy at law because
the trial court’s ruling was directly appealable, and because the criminal
prosecution would not necessarily be mooted if relief were granted. (See In
re Watford (2010) 186 Cal.App.4th 684.)
However, the Supreme Court has granted review and directed us to vacate
our denial and issue an alternative writ, thus, determining that petitioner
does not have an adequate remedy available to him.
DISCUSSION
In Hofsheier, supra, 37
Cal.4th 1185, the Supreme Court held that imposition of mandatory lifetime sex
registration on a defendant convicted of a violation of section 288a,
subdivision (b)(1), for voluntary oral copulation with a 16- or 17-year-old
minor violated equal protection because a defendant convicted of engaging in
sexual intercourse with such a minor under section 261.5 was not subject to the
mandatory requirement. (
convicted of the two offenses were similarly situated, and there were no
rational grounds for treating them differently.
(See People v. Garcia (2008)
161 Cal.App.4th 475, 481 (Garcia),
overruled on another ground by Picklesimer,
supra, 48 Cal.4th 33 at p 338,
fn. 4.) In determining the appropriate remedy, the
court rejected out of hand the option of declaring the mandatory lifetime
registration provisions invalid. It also
refused the other option of extending the mandatory requirement to persons
convicted of unlawful intercourse under section 261.5. The court concluded that “where mandatory
registration violates the equal protection clause, the proper remedy is to hold
a hearing to determine whether the defendant should be subject to discretionary
registration as a sex offender under former subdivision (a)(2)(E) of section
290.[
title="">[3]] [Citation.]”
(Garcia, at pp. 478-479;
see also Hofsheier, at
pp. 1208-1209.)
convictions for other crimes subject to mandatory registration, including
convictions under section 288a, subdivision (b)(2). (Garcia,
supra, 161 Cal.App.4th 475.) The court in Manchel, supra, 163
Cal.App.4th 1108, came to a contrary result where the defendant was 10 years
older than the 15-year-old victim. The
court noted that the defendant could have been prosecuted under
section 288, subdivision (c) and, therefore, subject to mandatory
registration whether he engaged in oral copulation or sexual intercourse with
the victim. The court reasoned that
because the defendant’s sexual conduct fell within statutes that provide for
mandatory registration, he could not establish that he was similarly situated
to another group of offenders who were not subject to mandatory sex offender
registration. (Manchel, at p. 1115.)
Thus, the order requiring him to register as a sex offender did not
violate the equal protection clause. (
Subsequent
case law criticizes Manchel for
improperly basing its decision on the fact that the defendant could have been
convicted of a section 288, subdivision (c)(1) crime (lewd acts involving
a child 14 or 15 years old), when the defendant actually pled guilty to
violating section 288a, subdivision (b)(2).
(People v. Luansing (2009) 176
Cal.App.4th 676; People v. Ranscht
(2009) 173 Cal.App.4th 1369.) We agree
with that criticism.
the crime of which a defendant is convicted and look instead to all of the
crimes of which a defendant could have been convicted based on his
conduct. This holding overlooks Hofsheier’
‘persons who are convicted of voluntary oral copulation
. . . , as opposed to those who are convicted of
voluntary intercourse with adolescents in [the] same age group.’
Consistent with Hofsheier, we think the more appropriate course
is to focus on the offense of which the defendant was convicted, as
opposed to a hypothetical offense of which the defendant could have been
convicted based on the conduct underlying the charge. ‘This approach jibes with the mandatory
registration statutes themselves, which are triggered by certain convictions
. . . , and not by the underlying conduct of those offenses per
se.’ [Citations.]” (Ranscht,
at pp. 1374-1375.)
For
these reasons, we reject the reasoning of Manchel and conclude that
subjecting defendant to mandatory sex offender registration violated his equal
protection rights.
While
petitioner is not subject to the mandatory registration requirement, he has not
established a right to relief from registration as a matter of law because he
may be subject to discretionary registration under section 290.006. The trial court must reconsider this matter
and conduct a new hearing to determine whether the defendant must continue to
register as a sex offender. (
Cal.App.4th 70, 77-78.) To require
registration under this statute, “the trial court must engage in a two-step
process: (1) it must find whether the
offense was committed as a result of sexual compulsion or for purposes of
sexual gratification, and state the reasons for these findings; and (2) it must
state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons
for requiring registration even if the trial court finds the offense was
committed as a result of sexual compulsion or for purposes of sexual
gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.” (Hofsheier,
p. 1197.) In exercising its
discretion, the trial court’s focus is to determine based on all relevant
information whether petitioner is likely to commit such offenses in the future. (Lewis,
at pp. 78-79).
DISPOSITION
Having
served its purpose, the alternative writ of mandate is discharged, the
previously ordered stay is lifted, and the petition for writ of mandate is
granted. Let a peremptory writ of
mandate issue directing the Superior Court of Riverside County to set aside its
denial of the petition for writ of mandate and to conduct a new hearing to
determine whether petitioner is subject to the registration requirement under
section 290.006.
Petitioner is directed to prepare and have the peremptory
writ of mandate issued, copies served, and the original filed with the clerk of
this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
Penal Code.
name="_ftn2" title=""> [2] People
v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel).
