In the instant case, we are considering whether people convicted of annoying a
child (former § 647a) are similarly situated to people convicted of indecent exposure
(§ 314) and those convicted of producing, selling, or advertising child pornography.
(§§ 311.2, subds. (b), (c) & (d), 311.3, 311.10.) The offense of annoying a child
(former § 647a) involves a child victim who is present during the defendant’s crime.
The crime does not have a specific intent requirement; however, the defendant’s actions
must be motivated by a sexual interest in children. (People v. Brandao, supra, 203
Cal.App.4th at p. 441.)
Section 311.2, subdivisions (b), (c), and (d) include the offense of producing
child pornography. “[P]roducers [are people] who directly exploit children physically
to create a pornographic product.” (People v. Hobbs (2007) 152 Cal.App.4th 1, 7, fn.
omitted [Fourth Dist., Div. Two].) However, the intent for a producer must be to
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distribute, exhibit, or exchange the pornography. (In re Klor (1966) 64 Cal.2d 816, 821;
§ 311.2, subds. (b), (c) & (d).) Therefore, a person convicted of annoying a child is
dissimilar from a person who produces child pornography because the intent or
motivation is different—the producer has the intent to share the product, while the
annoyer is motivated by a sexual interest in children.
The crimes in section 311.10 (advertising and distribution), the crimes in section
311.3 (developing, duplicating, printing, or exchanging), and the remaining crimes in
section 311.2, subdivisions (b), (c), and (d) (possessing, developing, duplicating, or
printing) do not involve a child victim being present during the commission of the act.
Rather, the crimes focus upon images of children. Accordingly, a person convicted of
annoying a child is dissimilar from a person convicted of advertising, distributing,
possessing, developing, duplicating, or printing child pornography (§§ 311.10, 311.3,
311.2, subds. (b), (c) & (d)) because the annoyance crime involves the presence of a
victim.
The offense of indecent exposure can be committed regardless of the victim’s
age. The crime is complete when a person “[e]xposes his person, or the private parts
thereof, in any public place, or in any place where there are present other persons to be
offended or annoyed thereby.” Thus, indecent exposure is not necessarily a crime
against a child. As a result, people convicted of annoying a child are not similarly
situated to people convicted of indecent exposure, because not all people convicted of
indecent exposure have victimized children.
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In sum, people convicted of annoying a child (former § 647a) are not similarly
situated to people convicted of subdivision (b), (c), or (d) of section 311.2, or of
sections 311.3, 311.10, or 314 because former section 647a required (1) the presence of
a child victim, and (2) that the defendant was motivated by a sexual interest in children.
(See People v. Alvarado, supra, 187 Cal.App.4th at p. 79 [groups of people convicted of
different crimes are not similarly situated when (1) the age requirements for the victims
are different, and (2) the intent requirements are different].) As a result, we conclude
the trial court properly concluded defendant’s equal protection rights were not violated
by having a five-year period of rehabilitation (10 years total) because the groups are not
similarly situated.
Defendant’s argument that he is similarly situated to sexual offenders with a
seven-year certificate waiting period relies on People v. Schoop (2012) 212 Cal.App.4th
457. In Schoop, the defendant was convicted of possessing child pornography with the
intent to distribute or exhibit (§ 311.1) and was required to register as a sexual offender
(§ 290, subd. (c)). (Schoop, at p. 463.) The defendant sought a certificate of
rehabilitation, but his petition was denied and he was told he must wait for the 10-year
time period to elapse before he could properly seek relief. On appeal, the defendant
challenged the ruling on equal protection grounds because other similarly situated
people only had to wait seven years. (Id. at pp. 463, 465) In particular, the defendant
asserted he was similarly situated to people convicted of other child pornography
offenses, i.e., section 311.2, subdivisions (b), (c), and (d), and sections 311.3 and
311.10. (Schoop, at pp. 468-469.)
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The appellate court concluded people convicted of possessing child pornography
with the intent to distribute or exhibit (§ 311.1) were similarly situated with people
convicted of crimes under section 311.2, subdivisions (b), (c), and (d), and sections
311.3 and 311.10 because all the crimes “address the production and dissemination of
images representing sexual matter [and p]ersons convicted of any of the foregoing
statutes must register as a sex offender (§ 290, subd. (c)) . . . .” (Schoop, supra, 212
Cal.App.4th at p. 471.)
We find Schoop to be distinguishable. Defendant was not convicted of
possessing child pornography with the intent to distribute or exhibit. (§ 311.1.) Rather,
defendant was convicted of annoying or molesting a child (former § 647a), which
required defendant be motivated by a sexual interest in children. (People v. Brandao,
supra, 203 Cal.App.4th at p. 441.) Section 311.1 is distinguishable from the offense of
annoying a child for the same reasons the other child pornography offenses are
distinguishable. First, with the exception of “producing,” a child victim does not need
to be present for the section 311.1 crime to be completed, i.e., possessing, developing,
duplicating, or printing child pornography. Second, the intent for the section 311.1
crime is the “intent to distribute”—this includes the “producing” offense. (§ 311.1,
subd. (a); Schoop, supra, 212 Cal.App.4th at p. 463.) So section 311.1 also differs from
former section 647a because a sexual interest in children is not required for a section
311.1 violation. Given the differences between section 311.1 and section 647a, we find
defendant’s reliance on Schoop to be unpersuasive.
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Next, defendant asserts it is improper to compare the elements of the crimes
when conducting the “similarly situated” analysis. We disagree with defendant due to
our Supreme Court comparing the elements of different offenses when determining
whether people convicted of different crimes are similarly situated. (See Auto Equity
Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456 [courts
of inferior jurisdiction must follow the decisions of courts exercising higher
jurisdiction].)
For example, in Hofsheier, our Supreme Court wrote, “[S]ection 288a (b)(1) and
section 261.5 both concern sexual conduct with minors. The only difference between
the two offenses is the nature of the sexual act. Thus, persons convicted of oral
copulation with minors and persons convicted of sexual intercourse with minors ‘are
sufficiently similar to merit application of some level of scrutiny to determine whether
distinctions between the two groups justify the unequal treatment.’ [Citation.]”
(Hofsheier, supra, 37 Cal.4th at p. 1200 [italics added].)
In Hofsheier, the Supreme Court looked to the elements of the offenses to
determine whether the crimes were similar, thus causing the people convicted of those
crimes to be similarly situated, for purposes of the mandatory sexual offender
registration law. (§ 290.) (Hofsheier, supra, 37 Cal.4th at p. 1198.) We have followed
our Supreme Court’s example in conducting the “similarly situated” analysis and
therefore are not persuaded that the elements of the crimes are irrelevant.
Moreover, we note the intermediate appellate court in Schoop also compared the
elements of the groups’ offenses. In Schoop, the appellate court wrote, “These statutes,
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all . . . address the production and dissemination of images representing sexual matter.”
(Schoop, supra, 212 Cal.App.4th at p. 471.) Thus, part of the appellate court’s
“similarly situated” analysis concerned the fact that the crimes all targeted the same
basic acts. This court also compared the elements of the offenses in Alvarado for
purposes of the “similarly situated” analysis. (People v. Alvarado, supra, 187
Cal.App.4th at pp. 78-79.) Thus, we are not persuaded that the elements of the groups’
crimes are irrelevant to the “similarly situated” analysis.
Next, defendant asserts the groups are similarly situated because they all must
register as sexual offenders pursuant to section 290, subdivision (c). In the “similarly
situated” analysis, the question “‘“is not whether persons are similarly situated for all
purposes, but ‘whether they are similarly situated for purposes of the law challenged.’”
[Citation.]’ [Citation.]” (Schoop, supra, 212 Cal.App.4th at p. 471.)
The law at issue is the statute setting forth the time periods that must elapse
before a defendant can properly petition a court for a certificate of rehabilitation and
pardon. (§ 4852.03.) Since the statute pertains to ensuring a sufficient amount of time
has passed for a court to determine if a defendant has been rehabilitated, the relevant
questions for determining if the defendants are similarly situated pertain to the
defendants’ offenses—what acts were involved, who were the victims, and what were
the defendants’ intents or motivations. (See generally People v. Brown (2012) 54
Cal.4th 314, 328-329 [discussing the purpose of a law as part of an equal protection
analysis].) By looking at the elements, a court can determine if two groups are similarly
situated for purposes of time needed to prove rehabilitation. (See Schoop, supra, 212
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Cal.App.4th at p. 471 [comparing the acts at issue in the offenses].) The fact that all the
groups must register as sexual offenders (§ 290) provides little insight into whether they
would require similar time periods for rehabilitation. Accordingly, we find defendant’s
assertion concerning similarity of registration requirements to be unpersuasive because
it does not relate to the purpose of the law.
E. RATIONAL BASIS
Since the groups are not similarly situated, we do not need to determine if there
is a rational basis for the Legislature’s different treatment of the groups. (See In re Jose
Z. (2004) 116 Cal.App.4th 953, 960 [“The analysis will not proceed beyond this stage if
the groups at issue are not ‘“similarly situated . . .”’”].)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
RICHLI J.
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AI Brief
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Holding. The court held that individuals convicted of annoying or molesting a child are not similarly situated to those convicted of indecent exposure or child pornography offenses for purposes of the rehabilitation certificate waiting period, as the former requires a child victim and a specific sexual motivation. Consequently, the 10-year waiting period for the defendant does not violate equal protection principles.
Issues
Whether the 10-year waiting period for a certificate of rehabilitation under Penal Code section 4852.03 violates equal protection by treating the defendant differently than offenders subject to a 7-year period.
Whether persons convicted of annoying or molesting a child are similarly situated to those convicted of indecent exposure or child pornography offenses for the purpose of determining rehabilitation timelines.
Disposition. affirmed
Quotations verified verbatim against the opinion
“people convicted of annoying a child (former § 647a) are not similarly situated to people convicted of subdivision (b), (c), or (d) of section 311.2, or of sections 311.3, 311.10, or 314”
“Since the groups are not similarly situated, we do not need to determine if there is a rational basis for the Legislature’s different treatment of the groups.”