Wednesday, June 11, 2008
C.A. Rejects Equal Protection Challenge to Sex Offender Registry
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal yesterday rejected a man’s claim that the state’s sex offender registration law violates equal protection by requiring mandatory registration for individuals who engage in oral copulation with a minor, but not for those who engage in sexual intercourse.
Affirming Los Angeles Superior Court Judge Steven D. Ogden’s decision to deny Joseph Manchel’s motion to vacate an order requiring annual registration under Penal Code Sec. 290 after Manchel was convicted of orally copulating a minor under 16 in violation of Sec. 288a, Div. Seven held that the mandatory registration requirement did not treat two similarly situated groups in an unequal manner because Manchel would have been required to register under Sec. 290 had he been convicted of engaging in sexual intercourse with the victim.
Manchel was 29 when he allegedly engaged in multiple, voluntary sexual acts with a 15-year-old girl. In exchange for dismissal of charges of lewd acts on a child, unlawful sexual intercourse with a minor under 16, and contributing to the delinquency of a minor, he pled guilty to oral copulation of a minor under 16 in violation of Penal Code Sec. 288a(b)(2).
He was granted probation and ordered to register annually as a sex offender under Sec. 290, which requires all persons convicted of certain sexual offenses, including a violation of Sec. 288a(b)(2), to register for life while residing in California.
Supreme Court Precedent
However, in March of 2007, after the California Supreme Court issued its opinion in People v. Hofsheier (2006) 37 Cal.4th 1185, he sought relief from his obligation arguing that mandatory registration for the offense denied him equal protection of the laws.
In Hofsheier, the Supreme Court ruled that requiring a 22-year old individual convicted of engaging in oral copulation with a minor under the age of 18 in violation of Sec. 288a(b)(1) to register as a sex offender violated equal protection because that individual, if convicted instead of having sexual intercourse with the minor, would only violate Sec. 261.5’s prohibition on unlawful sexual intercourse with a person more than three years younger, which would not trigger Sec. 290’s registration requirement.
“We perceive no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of ‘particularly incorrigible offenders’…who require lifetime surveillance as sex offenders,” the Supreme Court explained.
Manchel argued that the reasoning in Hofsheier should extend equally to violations of Sec. 288a(b)(2), but Los Angeles Superior Court Judge Steven D. Ogden rejected the argument and denied Manchel’s motion to vacate the registration order.
On appeal, the Court of Appeal affirmed Ogden’s decision in an opinion by Justice Laurie D. Zelon.
Split in District
Despite conceding that Manchel’s argument held such “considerable appeal” that another division in the district had recently accepted it in People v. Garcia (2008) 161 Cal.App.4th 475, Zelon wrote that neither Hofsheier nor Garcia were dispositive because neither examined the issue presented in Manchel’s case: the effect of Sec. 288 on the equal protection analysis.
Noting that a defendant cannot be prosecuted under Sec. 288a if the victim was older than 15, or if the victim was 14 or 15 and the perpetrator was not at least 10 years older, Zelon wrote:
“[The] core element of the Hofsheier equal protection analysis—that if he had gone ahead and had intercourse with the victim he could not have been subjected to mandatory registration, but because he engaged in oral copulation he was—does not hold true for Manchel…. Either act constituted a lewd and lascivious act under section 288, subdivision (c)(1) and subjected Manchel to mandatory lifetime registration as a sex offender.”
Zelon said that her conclusion was consistent with the decision in Hofsheier, because the Supreme Court “expressly stated that in its equal protection analysis it was not considering circumstances in which registration would be mandatory regardless of the nature of the perpetrator’s sexual conduct.”
She also rejected Manchel’s contention that the court should disregard Sec. 288(c)(1) and consider that he would not have been subject to mandatory registration had he been convicted under Sec. 261.5.
“[T]he Supreme Court in Hofsheier looked at what laws Hofsheier would have violated if he had had sexual intercourse with his victim, and there, the only applicable law was one that would not have subjected him to mandatory sex offender registration, so he was compared with people who had violated that law….,” she wrote. “[I]f another statute had applied in Hofsheier such that regardless of the nature of Hofsheier’s sexual conduct he could have been subject to mandatory sex offender registration, Hofsheier would have been unable to pursue a successful equal protection claim.”
Presiding Justice Dennis M. Perluss and Justice Fred Woods joined Zelon in her opinion.
The case is People v. Manchel, 08 S.O.S. 3420.
Copyright 2008, Metropolitan News Company