POOCHIGIAN, J., Concurring. I concur in the majority opinion remanding the matter to the trial court to exercise its discretion on the issue of whether appellant should be subjected to a registration requirement. We are compelled to do so in accordance with the Supreme Court’s decision in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier). I write separately to comment upon anomalous aspects of the statutory scheme in which legislative review may be beneficial.
The substantive criminal statutes at issue in our equal protection analysis are Penal Code1 sections 288a, subdivision (e) and 289.6, subdivision (a)(2). Section 288a pertains to the criminal act of oral copulation. Generally, section 288a provides criminal penalties for acts in which there is a party who is a minor or where the act is performed against the person’s will or with a victim who is unaware, defrauded, unconscious, or otherwise incapable of knowingly participating or giving legal consent. The single exception to the general approach is section 288a, subdivision (e) which deals with persons who may be consenting adults.
Although the act among consenting adults in the general population of society is not unlawful, the fact that section 288a, subdivision (e) may punish [677]prisoners for the same conduct was deemed not to violate the equal protection clause by this court in People v. Santibanez (1979) 91 Cal.App.3d 287 [154 Cal.Rptr. 74] (Santibanez). While section 288a, subdivision (e) may be charged against adults giving consent, the inclusion of the subdivision is not in itself illogical. However, the fact that section 288a, subdivision (e) is incorporated in section 290, the mandatory sex offender registration statute, is confounding for reasons described below.
We cite Santibanez for its holding that “[t]he obvious governmental purpose behind the statute [(§ 288a, subd. (e))] is the maintenance of prison discipline and order.” (Santibanez, supra, 91 Cal.App.3d at p. 291.) One may argue whether a similar purpose is served by section 289.6, subdivision (a)(2) which criminalizes sexual activity involving an employee or officer of a public entity detention facility and a confined consenting adult. Of course, this is the focus of appellant’s denial of equal protection claim. The majority opinion, applying the holding in Hofsheier, concludes that the parties identified in sections 288a, subdivision (e) and 289.6, subdivision (a)(2) are “similarly situated,” a key factor in finding denial of equal protection. One may draw distinctions between the facts in the instant case and those in Hofsheier. For example, Hofsheier involved a minor victim under section 288a, subdivision (b)(1). Nonetheless, it would be a leap to distinguish Hofsheier on that ground in our analysis of unequal treatment of consenting adults under sections 288a, subdivision (e) and 289.6, subdivision (a)(2) and 290, subdivision (c).
While we resolve the equal protection issue consistent with Hofsheier, it is important to underscore the rationale behind the registration statute and point out a logical shortcoming vis-á-vis a section 288a, subdivision (e) violation. Again, as appropriately analyzed in Santibanez, there is a strong basis for criminal sanction of the proscribed act related to the importance of maintaining order and controlling a prison population. Nonetheless, as pointed out in Hofsheier, “ ‘ “ ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ ” ’ ” “In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders .... [Citation.]” (Hofsheier, supra, 37 Cal.4th at p. 1196.)
While there is no quibbling about the underlying substantive crime, there seems no rational explanation for imposing a nondiscretionary lifetime registration requirement under circumstances involving consenting adults whose conduct would be lawful in the general population and which is properly punished if performed during incarceration (and there is no history [678]of other sexual offenses). To the extent that the inclusion of section 288a, subdivision (e) in the registration statute is incongruous, would the equal protection claim be resolved by either eliminating section 288 a, subdivision (e) as an enumerated crime under section 290 or by including section 289.6, subdivision (a)(2)? This question must be addressed, if at all, by the Legislature.
Respondent’s petition for review by the Supreme Court was denied February 15, 2012, S198594. Baxter, L, and Corrigan, 1, were of the opinion that the petition should be granted.
All further statutory references are to the Penal Code unless otherwise stated.