Quigley v. Super. Ct. CA5

Filed 5/28/15 Quigley v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

JACK BARRY QUIGLEY, F068812 Plaintiff and Appellant, (Super. Ct. No. 12CECG04000) v.

SUPERIOR COURT OF FRESNO COUNTY, OPINION Defendant and Respondent;

THE PEOPLE,

Real Party in Interest and Respondent.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge. Nuttall & Coleman and Roger T. Nuttall for Plaintiff and Appellant. No appearance for Defendant and Respondent. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Brian A. Segal, Deputy Attorneys General, for Real Party in Interest and Respondent.

* Before Levy, Acting P.J., Detjen, J. and Franson, J.

-ooOoo- Appellant Jack Barry Quigley, entered a no contest plea to one misdemeanor count of annoying or molesting a child. (Pen. Code,1 § 647.6, subd. (a).) In addition to jail time and three years of probation, appellant was ordered to register for life as a sex offender pursuant to section 290. Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), appellant petitioned the trial court to be relieved of the lifetime sex offender registration requirement as a violation of his right to equal protection of the laws. Based on People v. Brandao (2012) 203 Cal.App.4th 436 (Brandao), the trial court denied the petition. The trial court properly denied appellant’s petition. The Brandao court’s reasoning is sound. Further, unlike the defendant in Hofsheier, the defendant in Brandao was convicted of the same offense as appellant. Moreover, the California Supreme Court recently reexamined Hofsheier and, finding that Hofsheier’s constitutional analysis was faulty, overruled its earlier opinion. (Johnson v. Department of Justice (2015) 60 Cal.4th 871.) DISCUSSION Section 647.6, subdivision (a), a misdemeanor offense, punishes “[e]very person who annoys or molests any child under 18 years of age.” (§ 647.6, subd. (a)(1).) This section does not require touching but requires conduct that a normal person would unhesitatingly find irritating or annoying. (People v. Phillips (2010) 188 Cal.App.4th 1383, 1396.) Further, it is firmly established that the conduct must be motivated by an unnatural or abnormal sexual interest in children in general or in a specific child. (Ibid.) By entering a no contest plea, appellant admitted every element of the crime charged. (People v. DeVaughn (1977) 18 Cal.3d 889, 895; People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) Therefore, contrary to appellant’s position, the trial court was