People v. Valdez

Opinion

RAMIREZ, P. J.

A jury convicted defendant of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)),

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raping his spouse (§ 262, subd. (a)(1)), raping her with a foreign object (§ 289, subd. (a)(1)) and violating a protective order (§ 273.6, subd. (a)). The trial court found that were it not prohibited by section 1203.065 from granting defendant probation because he was convicted of rape with a foreign object it would have done so. The trial court sentenced defendant to prison for eight years. Defendant appeals, claiming the prohibition on granting probation to one convicted of rape with a foreign object, or in his case, of raping his wife with a foreign object, violates equal protection because there is no similar prohibition for his rape of his wife. We reject his contention and affirm.

The facts of this case are irrelevant to this appeal.

Issue and Discussion

At the time defendant committed his offenses, section 1203.065, subdivision (a) provided in pertinent part, “Notwithstanding any other law, probation shall not be granted to . . . any person who is convicted of violating paragraph (2) of subdivision (a) of Section 261, Section 264.1, 266h, 266i, or 266j, subdivision (a) of Section 289, of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or of violating subdivision (c) of Section 311.14.”

[1531]

There was no disallowance of probation in former section 1203.065 for a conviction of spousal rape under section 262, subdivision (a)(1). Defendant contends that this distinction between penetrating one’s spouse with a penis, for which probation is available, and penetration with any other item, for which probation is not, violates the equal protection clause.

“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more