P. v. Musgrave CA1/4

Filed 6/28/13 P. v. Musgrave CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A136434 v. MOLLY ANNE MUSGRAVE, (San Mateo County Super. Ct. No. SC074226A) Defendant and Appellant.

Defendant Molly Anne Musgrave was convicted of oral copulation and sexual penetration of a minor. As part of Musgrave‟s sentence, the trial court imposed mandatory lifetime sex-offender registration. On appeal, Musgrave contends that this part of her sentence violated equal protection principles. We agree. We reverse the order and remand to the trial court to consider whether discretionary sex-offender registration is appropriate. I. FACTUAL AND PROCEDURAL BACKGROUND

Musgrave was 23 years old when, in June 2011, she met a 15-year-old girl through a social networking website. Although the girl claimed to be 18 years old in her online profile, she informed Musgrave during their first contact that she was actually only 15. Musgrave and the girl subsequently met “about 20 times” in June. They engaged in sexual activity, including kissing, touching, digital penetration, and oral copulation. In

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August, Musgrave drove the girl to Southern California, where she digitally penetrated her. According to Musgrave, all sexual activity with the 15-year-old girl was consensual. When the mother of the 15 year old learned of the relationship, she notified San Mateo police, who arrested Musgrave. Musgrave was charged by information with several offenses. She thereafter pleaded no contest under a plea agreement to one felony count of sexual penetration of a minor under 16 by a person over 21 (Pen. Code, § 289, subd. (i))1 and one felony count of oral copulation of a minor under 16 by a person over 21 (§ 288a, subd. (b)(2)), and the balance of the information against her was dismissed. The probation department recommended that Musgrave be sentenced to prison for two years (the maximum contemplated by her plea agreement) and that she be required to register as a sex offender under section 290. According to the department, Musgrave “was an active participant in sexually abusing the underage vulnerable victim,” “inflicted emotional injury on the child,” and “engaged in violent conduct which indicates she is a serious danger to society.” At the sentencing hearing, Musgrave‟s attorney disagreed with the probation department‟s assessment, emphasized that the relationship was consensual, suggested that it was the 15 year old‟s mother (as opposed to the 15 year old) who felt victimized by what happened, and recommended that Musgrave be placed on probation. Counsel also argued that the trial court was not required to impose lifetime sex-offender registration on Musgrave under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which held that imposition of mandatory lifetime sex-offender registration for persons convicted of voluntary oral copulation with a 16- or 17-year-old minor violated equal protection. The trial court disagreed that Hofsheier applied because that case involved situations where the victims were older than 16, whereas the victim in this case was younger than 16. The trial court suspended the imposition of sentence, placed Musgrave on five years‟ supervised probation and ordered that she serve 10 months in jail. The court believed that the proceedings had been “a very educational process” for Musgrave and