BENKE, Acting P. J., Dissenting. The record here shows the minor was 12 years old when defendant, then 18 years of age, digitally penetrated her vagina. Defendant engaged in other sexual acts with the minor when she was 13 and 14 years of age, including another instance when he digitally penetrated her vagina, touched and kissed her breasts, and fondled her [1376]genitalia. Defendant subsequently pled guilty to violating Penal Code1 section 289, subdivision (h), which requires mandatory registration under section 290, subdivision (c).
Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier), the majority concludes that defendant received unequal treatment under the law because if defendant had engaged in sexual intercourse with the 12 year old, as opposed to digitally penetrating her, he would not have been subject to mandatory registration but instead only subject to discretionary registration. I respectfully disagree.
First, the court in Hofsheier made it clear throughout its opinion that its holding was limited to an equal protection challenge involving mandatory registration for a defendant convicted of voluntary oral copulation with a minor 16 or 17 years of age (§ 288a, subd. (b)(1)), in contrast to discretionary registration if the defendant had been convicted of sexual intercourse with a minor of the same age (§ 261.5).2 (Hofsheier, supra, 37 Cal.4th at pp. 1192, 1194, 1195, 1196, 1197, 1198, 1200, 1201, 1204, 1205, 1206, 1207.)
It is thus not surprising the court in Hofsheier expressly stated its holding did not apply to crimes such as rape, or, as the case here, to a victim under the age of 14: “We are not here concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons [who commit such crimes] must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse. (See §§ 264 [rape], 288 [lewd or lascivious acts with victim under the age of 14], 288a, subd. (c)(1) [oral copulation with a minor under 14 years of age], 288a, subd. (c)(2) [forcible oral copulation], 290, subd. (a)(2) [convictions requiring registration].)” (Hofsheier, supra, 37 Cal.4th at p. 1198, italics added.) I disagree with the majority’s conclusion that this express limitation placed by the court on its holding in Hofsheier is dicta.
Second, the fact the victim in Hofsheier was 16 or 17 years of age distinguishes that case from the case at bar, where the victim was 12 years old when defendant first digitally penetrated her vagina. The majority ignores this distinction. Its reasoning further assumes that a 12 year old can “consent” to participate in sexual contact with an adult, and that the “consent” required for such participation is the same regardless of whether the victim is 12 years [1377]of age, as was the case here, or 16 or 17, as was the case in Hofsheier 3 (See People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620-1621 [1 Cal.Rptr.3d 261] [“ ‘ “Adolescents ‘are more vulnerable, more impulsive, and less self-disciplined than adults,’ and are without the same ‘capacity to control their conduct and to think in long-range terms.’ ” ’ [Citation.] It is for those reasons that our laws governing sexual contact with minors make it irrelevant, as a general rule, whether the minor consented.”].)
However, the majority’s reasoning and the assumptions required to support it ignore the strong public policy in our laws of protecting juveniles based on their age, as acknowledged by the court in Hofsheier, and by our Legislature in providing for a graduated scale of punishments based on the age of the victim (and the perpetrator). (See Hofsheier, supra, 37 Cal.4th at pp. 1194—1195 [recognizing both §§ 288a, subds. (b)(1), (2), (c)(1) & 261.5 provide greater punishment depending on the age of the parties].)
For example, section 288a, subdivision (b)(2), provides a person over 21 years of age who engages in oral copulation with someone younger than 16 years of age is guilty of a felony. Section 288a, subdivision (c)(1), increases the punishment when the person engages in oral copulation with someone under the age of 14 who is more than 10 years younger than the defendant.
Similarly, under section 261.5, subdivision (b), a person who engages in an act of “unlawful sexual intercourse” with a minor who is not more than three years older or three years younger than the person is guilty of a misdemeanor. However, when a person engages in an act of unlawful sexual intercourse with a minor more than three years younger, the person is guilty of either a misdemeanor or a felony. (§ 261.5, subd. (c).) Under subdivision (d) of section 261.5, if a person is over the age of 21 and engages in unlawful sexual intercourse with a minor under the age of 16, that person is guilty of a misdemeanor or a felony punishable by two to four years’ imprisonment.
[1378]Third, unlike the situation in Hofsheier, where the defendant pleaded guilty to, and was convicted of, a violation of section 288a, subdivision (b)(1) (Hofsheier, supra, 37 Cal.4th at p. 1192), here defendant was convicted under section 289, subdivision (h), which provides: “Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year.” (Italics added.)
Section 288, subdivision (a) further provides: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Thus, the instant situation, unlike the circumstances in Hofsheier, implicates a statutory protection for minors under the age of 14. (See § 288, subd. (a).) As a result, there is no relevant, similarly situated group for which mandatory registration is not required that serves as a basis for defendant to challenge subdivision (c) of section 290. (See People v. Anderson (2008) 168 Cal.App.4th 135, 142-143 [85 Cal.Rptr.3d 262], review den. Feb. 11, 2009, S168550 [concluding mandatory lifetime sex offender registration did not violate equal protection because defendant was convicted under subd. (c)(1) of § 288 (committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than the victim), and thus defendant could not establish he was subjected to unequal treatment based on a similarly situated group for which no mandatory registration was required]; People v. Manchel (2008) 163 Cal.App.4th 1108, 1115 [78 Cal.Rptr.3d 194], review den. Sept. 24, 2008, S165291 (Manchel) [concluding mandatory sex offender registration for oral copulation with a child under the age of 16 did not violate defendant’s equal protection rights because defendant’s conduct fell within subd. (c)(1) of § 288 (even though defendant pled to and was convicted under subd. (b)(2) of § 288a), and thus defendant would have to register “regardless of whether he engaged in intercourse or oral copulation” with the minor]; but see People v. Garcia (2008) 161 Cal.App.4th 475, 482 [74 Cal.Rptr.3d 681] (Garcia) [concluding a defendant convicted under subd. (b)(2) of § 288a was denied equal protection because a person over 21 convicted of unlawful sexual intercourse with a 14 year old would be subject to discretionary registration, whereas that same person convicted of oral copulation with a 14 year old would be subject to mandatory registration]; People v. Hernandez (2008) 166 Cal.App.4th 641, 648, 652 [83 Cal.Rptr.3d 29] [refusing to decide whether to follow Manchel or Garcia because as in Hofsheier the defendant’s [1379]offense did not fall within § 288, and concluding mandatory sex offender registration was a violation of equal protection].)
Because defendant falls within statutes that require mandatory registration (e.g., §§ 288, subd. (a), 289, subd. (h)), regardless of the nature of the sexual conduct at issue, he cannot satisfy his burden to show unequal treatment based on a group of similarly situated offenders that are not subject to mandatory sex offender registration. I therefore would affirm the trial court’s order requiring him to register under section 290, subdivision (c).
All further statutory references are to the Penal Code unless otherwise specified.
The court noted it used the term “voluntary” in a “special and restricted sense to indicate both that the minor victim willingly participated in the act and to the absence of various statutory aggravating circumstances . . . .” (Hofsheier, supra, 37 Cal.4th at p. 1193, fn. 2.)
The majority concludes from the record that the minor, then 12 or 13 years of age, “entered into a mutual romantic relationship” with defendant that “became physical.” (Maj. opn., ante, at p. 1371.) My reading of the record leads me to conclude otherwise. Although the minor testified during defendant’s preliminary hearing that defendant did not “force” her to engage in any sexual acts, she also testified defendant initiated all of the sexual contact, digitally penetrated her vagina on at least two occasions, including once when she was 12 and another time when she was 13 years of age, touched and fondled her genitalia and breasts on other occasions and pushed the topic of oral sex when she already had said no to it. In addition, the victim spoke during defendant’s sentencing that his actions “wounded” her “to the core,” she felt “shame and hatred” toward herself because defendant told her not to tell anyone about the sexual acts, and she instead took her “unexplainable anger and pain” out on herself until her motivation to live “had dwindled to almost nothing.” Such evidence does not suggest a “mutual romantic relationship” ever existed between defendant and the minor.