Metropolitan News-Enterprise


Thursday, October 8, 2009


Page 3


Court Overturns Ruling on Sex Offender Registration Requirement

Panel Rejects Trial Judge’s Holding That Mandate Violated Equal Protection Guarantees




A statute that mandates lifelong sex offender registration for those convicted of committing lewd and lascivious acts on a child under 16 years of age is constitutional, the Sixth District Court of Appeal has ruled.

The justices Tuesday reversed a contrary ruling by a Santa Clara Superior Court judge, who said David Reid Cavallaro did not have to register because the statute unfairly discriminates among those convicted of different offenses.

Cavallaro was charged two years ago with several offenses resulting from a series of 2005 and 2006 incidents involving two girls. He eventually admitted fondling them on multiple occasions, showing them a pornographic movie, providing them with alcohol and offering them marijuana, and making sexually explicit gestures in front of them.

All of the incidents occurred when Cavallaro was 26 years of age or older and the girls were between 14 and 16.

Cavallaro was charged with six counts of violating Penal Code Sec.288(c)(1), which makes it a felony to commit a lewd or lascivious act on a child between 14 and 16 if the defendant is at least 10 years older. He was also charged with two felony counts of offering marijuana to a minor and two misdemeanor counts of distributing sexually explicit material to minors.

Plea Bargain

As part of a plea bargain, the marijuana counts were reduced to misdemeanors and Cavallaro pled guilty to all charges in exchange for a guarantee that his sentence would not exceed three years in prison. Judge Ray Cunningham later placed him on probation for three years on condition that he serve 11 months in jail, and directed the parties to brief whether he should be required to register.

The prosecution contended that registration was mandatory under Sec. 290, which lists Sec. 288 violations as among those offenses that trigger the requirement, and alternatively that the court should order registration as a matter of discretion. The defense argued that in Cavallaro’s case, the registration mandate deprived him of equal protection because had he been convicted of unlawful intercourse with a minor, a violation of Sec. 261.5, the trial court would have discretion as to whether to require registration.

Cunningham agreed with the defense on the constitutional issue, citing People v. Hofsheier (2006) 37 Cal.4th 1185, and declined to order registration as a matter of discretion. 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 the defendant was similarly situated to a Sec. 261.5 offender.

Case Distinguished

But Justice Wendy Clark Duffy, writing for the Court of Appeal, said that Hofsheier was distinguishable because Sec. 288(c)(1) violators are not similarly situated to those convicted under Sec. 261.5.

Sec. 288(c)(1), the jurist noted, requires a specific intent “of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of the defendant or the child; requires a significant age difference between the defendant and the child; and is limited in application to cases involving children under the age of 16, all of which distinguish it from Sec. 261.5.

In addition, Duffy wrote, “perhaps most significantly,” had he engaged in sexual intercourse with the same girls, Cavallaro could still have been convicted of the mandatory registration offense. “In Hofsheier, the equal protection analysis hinged on the fact that the defendant—had he engaged in unlawful, nonforcible sexual intercourse with the 16-year-old girl instead of oral copulation—would have under no circumstances been subject to mandatory registration,” Duffy explained.

Nor, the justice went on to explain, does the existence of prosecutorial discretion as to which of several statutes that might fit the same conduct a defendant may be charged under constitute an equal protection violation.

The case is People v. Cavallaro, 09 S.O.S. 5908.


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