Opinion
B226558
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. OGHENEKARO ABRIFOR, Defendant and Appellant.
H. Clay Jacke, II, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, Janet Neeley, and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA111803)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed.
H. Clay Jacke, II, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, Janet Neeley, and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Oghenekaro Abrifor appeals from his conviction of sexual battery and misdemeanor simple battery. His only contention on appeal is that the mandatory sexual registration requirement imposed for sexual battery infringes on his right to privacy and therefore violates his constitutional rights to equal protection and substantive due process. Respondent contends the constitutional challenges have been forfeited because they were not raised at trial. Alternatively respondent contends there is no equal protection violation because persons convicted of sexual battery are not similarly situated to persons convicted of simple battery. Respondent also argues there is no due process violation because the registration requirement is not unreasonable, arbitrary or capricious. We find no equal protection or due process violation and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was working as a security guard at a mall. He approached a pick-up truck with a camper shell parked at the mall. Jessica C. (15 years old) and her boyfriend Ramon S. were inside, hugging and kissing. Appellant knocked on the window and when Ramon S. answered, asked what they were doing. Although Ramon S. said they were not doing anything, appellant said he had seen them and that he could take them to jail. The couple begged to be allowed to go home, but appellant insisted that he was going to call the police. Appellant then said to Ramon S.: "let me touch what you touched, I hope you had fun." Ramon S. refused and appellant said he was going to take them in. Jessica said it was okay and that she would do it. Appellant told Ramon S. to turn around. Appellant placed his hand underneath Jessica's bra and touched her breasts and nipples. Then he placed his hand underneath her dress, inside her underwear, and put his fingers inside her vagina and began to "feel around." Jessica testified that appellant kept his fingers there for some five to six minutes. She was afraid to struggle. Appellant finally withdrew his hand and told the couple to leave and not return. Eventually, Ramon S. reported the incident to his boss, a deputy sheriff.
Appellant was arrested and charged with sexual penetration by foreign object (Pen. Code, § 289, subd. (a)(1)) and sexual battery (§ 243.4, subd. (e)(1)). Appellant denied the charges, although he admitted that he had a conversation with Jessica and Ramon S. at the mall. He was convicted of the lesser included offense of battery (§ 242) on the first count and of sexual battery. Appellant was placed on three years of summary probation concurrent to a sentence of 148 days in jail (time served). He was ordered to register as a sex offender for life under section 290. Appellant filed a timely appeal.
Statutory references are to the Penal Code.
DISCUSSION
I
Appellant argues the sex offender registration requirement infringes on his constitutional right to privacy and thus constitutes a violation of his constitutional rights to equal protection and due process. Preliminarily, respondent argues the issues have been forfeited because appellant did not raise these issues in the trial court. Appellant asks us to exercise our discretion to consider the issues. We generally exercise our discretion to consider constitutional arguments raised for the first time on appeal where important issues of public concern are raised which involve only the application of legal principles to undisputed facts. (People v. Jeha (2010) 187 Cal.App.4th 1063, 1078 (Jeha).)Since appellant raises only legal issues and there are no disputed facts, we exercise our discretion to consider the issues regarding the sex offender registration requirement, an issue of public concern.
II
Section 290 requires a person convicted of an enumerated offense to register as a sex offender for life. Sexual battery in violation of section 243.4, subdivision (e)(1) is an offense which triggers the registration requirement. The Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." A similar requirement appears in the California Constitution, article I, section 7.
"'"'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 similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' [Citation.]"'" (Jeha supra, 187 Cal.App.4th at p. 1073, quoting People v. McKee (2010) 47 Cal.4th 1172, 1218-1219.) We apply the rational basis test to appellant's equal protection claim based on infringement of his right to privacy. (Jeha at p. 1074.)
Appellant argues that persons convicted of sexual battery and simple battery are similarly situated. A conviction of sexual battery under section 243.4, subdivision (e)(1)criminalizes sexual touching when "'the touching is against the will of the person touched."' (People v. Smith (2010) 191 Cal.App.4th 199, 207.) "Misdemeanor sexual battery (in violation of § 243.4, subd. (e)) requires a showing that the defendant touched an intimate part of another person, the touching was against that person's will, and was done with specific intent to cause sexual arousal, gratification or abuse. [Citation.]" (People v. King (2010) 183 Cal.App.4th 1281, 1319.) In contrast, misdemeanor battery in violation of section 242 is '"any willful and unlawful use of force or violence upon the person of another."' It is a general intent offense. (People v. Colantuono (1994) 7 Cal.4th 206, 213-214, and fn. 4.)
Section 243.4, subdivision (e)(1) provides in pertinent part: "Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . ."
Since a person convicted of sexual battery in violation of section 243.4, subdivision (e)(1) must act with a specific sexual intent, a person convicted of that crime is not similarly situated to a person convicted of simple battery who need only intend a touching against the will of the victim. In addition, the unwelcome touching for simple battery under section 242 may be of any body part while section 243.4, subdivision (e)(1) requires that an intimate part of the victim be touched. The two offenses are not similarly situated—a prerequisite to his equal protection claim.
People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), cited by appellant is distinguishable. In that case, the Supreme Court found the mandatory lifetime registration requirement under section 290 unconstitutional as applied to a defendant convicted of oral copulation of a minor (§ 288a, subd. (b)(1)). The defendant, age 22, had engaged in voluntary oral copulation with a 16-year-old girl. The court concluded he was similarly situated with persons convicted of voluntary sexual intercourse with a minor (§ 261.5) which did not require lifetime registration as a sex offender. Since persons convicted of these two offenses were similarly situated, the Supreme Court held the registration requirement for oral copulation with a minor violated equal protection. (Id. at pp. 1199-1201.) That case involved a comparison of two sexual offenses. Here appellant compares a sexual offense with an offense without a sexual element. Since we reject his claim that he is similarly situated with persons convicted of simple battery under section 242, his equal protection argument fails.
III
Appellant also argues that the registration requirement infringes his privacy rights and hence constitutes a violation of his right to substantive due process. He contends the negative consequences of sex offender registration make "the law arbitrary, capricious and punitive." While appellant recognizes that courts have rejected a similar argument, he contends that registration is punitive. "To find a statute unconstitutional on substantive due process grounds, the statutory provision must appear to be unreasonable, arbitrary, or capricious so that it lacks any 'real and substantial relation to the object sought to be attained.' (People v. Hodges (1999) 70 Cal.App.4th 1348, 1356.) 'In the exercise of its police power a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal.' [Citation.]" (Jeha, supra, 187 Cal.App.4th at p. 1079.)
The Hofsheier court recognized the negative consequences of registration as a sex offender, but reiterated that it is not considered a form of punishment under the federal and state constitutions. (Hofsheier, supra, 37 Cal.4th at p. 1197.) In Jeha, supra, 187 Cal.App.4th 1063, the court concluded that the sex offender registration requirement of section 290 "does not serve an arbitrary and unreasonable purpose." (Id. at p. 1080.) Instead it found the requirement regulatory and nonpunitive. (Ibid.)"'"'"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.]"'" [Citations.] 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 so they can take protective measures. (See Stats. 1996, ch. 908, § 1, subd. (b), p. 5105.)' (Hofsheier, supra, at p. 1196.) These purposes are rational and within the domain of the Legislature to require of convicted sex offenders." (Jeha, supra, 187 Cal.App.4th at 1080.)
We follow Jeha, supra, 187 Cal.App.4th at page 1080 and find the mandatory lifetime sex offender registration under section 290 does not violate appellant's right to substantive due process because it is reasonably related to a proper legislative goal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.