Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF099771 Ronald L. Taylor, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Janet E. Neeley and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant James Harold Powell III appeals from the denial of his motion for relief from the mandatory lifetime registration requirement as a sex offender under Penal Code section 290. Defendant contends (1) the registration requirement is unconstitutional because it violates the Equal Protection Clause, and (2) the trial court erred in relying on hearsay evidence from the preliminary hearing transcript to establish the circumstances of the crime. The People agree that the trial court erred in upholding the mandatory lifetime registration requirement and concede that the matter should be remanded to the trial court for a determination whether defendant should be required to register under the discretionary principles of section 290.006. The People also appear to concede the validity of defendant’s challenge to the use of testimony at the preliminary hearing taken under Proposition 115. We accept the People’s concessions of error, and we therefore reverse.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
In 2001, defendant was charged with multiple sex offenses, including oral copulation and statutory rape, committed against defendant’s wife’s cousin, who lived with the couple. The victim had been 16 years old at the time of the oral copulation offense, and defendant was 13 years older than the victim.
At the preliminary hearing, the only witness was an officer, who testified pursuant to Proposition 115 as to what the victim had told him in an interview about the incidents. The victim was not available for cross-examination.
In June 2002, defendant entered into a plea agreement pursuant to People v. West (1970) 3 Cal.3d 595, 613, under which he pleaded guilty to one count of voluntary oral copulation (§ 288a, subd. (b)(1)) and multiple counts of statutory rape (§ 261.5). With respect to a factual basis for the plea, the trial court stated, “I will note that [defendant’s] plea is pursuant to People versus West, and that he does not wish to run the risk of taking the matter further, including going to trial, and would rather minimize his potential liability at this point in time by this plea. That is the factual basis then of the plea. [¶] So, then, I will determine that there is a factual basis for the plea.” Defendant was sentenced to prison for 15 years. Based on his conviction of a violation of section 288a, subdivision (b)(1), defendant was ordered to register as a sex offender under section 290, former subdivision (a)(1).
“[W]e use the term ‘voluntary’ in a special and restricted sense to indicate both that the minor victim willingly participated in the act and to the absence of various statutory aggravating circumstances: the perpetrator’s use of ‘force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person’ (§ 288a, subd. (c)(2)); the perpetrator’s ‘threatening to retaliate in the future against the victim or any other person’ (§ 288a, subd. (c)(3)); and the commission of the act while the victim is unconscious (§ 288a, subd. (f)) or intoxicated (§ 288a, subd. (i)).” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1193, fn.2 (Hofsheier)).
The registration statutes were renumbered in 2007. “The mandatory lifetime sex offender registration requirement is now found in section 290, subdivision (c). (Stats. 2007, ch. 579, § 8, p. 3741.) The discretionary provision is found in section 290.006, which contains the provisions of former section 290, subdivision (a)(2)(E) without substantive change. (Stats. 2007, ch. 579, § 14, p. 3742.)” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 76, fn. 4.)
Defendant’s convictions of section 261.5 did not subject him to mandatory registration. (See Hofsheier, supra, 37 Cal.4th at pp. 1195-1196.)
Defendant filed an appeal (No. E032091), although his sole contention related to an issue in a domestic violence case for which he had been sentenced to a prison term concurrent with his sentence for the sexual abuse offenses. This court affirmed the judgment. We have taken judicial notice of our record in No. E032091.
In 2006, the California Supreme Court held in Hofsheier that it was a violation of equal protection to impose mandatory sex offender registration on a person convicted of voluntary oral copulation with a minor aged 16 or 17 when no such requirement applied for a conviction of voluntary sexual intercourse with an identical victim. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1206-1207.) In August 2008, defendant filed a motion for relief from the section 290 registration requirement pursuant to Hofsheier.
The trial court conducted a hearing on defendant’s motion. At the hearing, the trial court stated it was relying on information from the preliminary hearing in the underlying case. Following the hearing, the trial court denied the motion. The trial court stated that the case did not come “within the holding of the Hofsheier case, because it is not a voluntary consensual situation, it is a situation where you have forcible behavior that amounts to the factual basis for the plea.” The court reiterated that it did not consider defendant’s rehabilitative efforts or conduct after the plea because it did not believe that Hofsheier applied.
Additional facts are set forth in the discussion of the issues.
III. DISCUSSION
A. Equal Protection
As noted, in Hofsheier, the California Supreme Court held that it was a violation of equal protection to impose mandatory sex offender registration on a person convicted of voluntary oral copulation with a minor aged 16 or 17 when no such requirement applied for a conviction of voluntary sexual intercourse with an identical victim. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1206-1207.) The court reasoned that defendants convicted of the two offenses were similarly situated because “both [offenses] concern sexual conduct with minors. The only difference between the two offenses is the nature of the sexual act.” (Id. at p. 1200.) The court then held there was no rational reason for mandating registration for one offense but not the other. (Id. at pp. 1203-1204.) The court noted, however, that such offenders could be required to register in the discretion of the trial court and therefore remanded the case for a determination whether the defendant should be required to register under the discretionary registration provision of former section 290, subdivision (a)(2)(E), now section 290.006. (Hofsheier, supra, at p. 1209.)
Very recently, the court in People v. Ranscht (2009) 173 Cal.App.4th 1369, 1371, 1374 (Ranscht), held that under the plain language of Hofsheier, “which focused on ‘persons who are convicted of voluntary oral copulation..., as opposed to those who are convicted of voluntary intercourse with adolescents in [the] same age group,’” “the more appropriate course is to focus on the offense of which the defendant was convicted, as opposed to a hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge.” (Ranscht, supra, at pp. 1374-1375.) The court in Ranscht,at p. 1374, disagreed with People v. Manchel (2008) 163 Cal.App.4th 1108, in which the court held that Hofsheier did not extend to a person convicted of a violation of section 288a, subdivision (b)(2) (oral copulation by a person over 21 years old of a person younger than 15 years old) when the defendant’s actual conduct would also have violated another statute requiring mandatory registration. (Manchel, supra, at p. 1110.)
Similarly, in In re J.P. (2009) 170 Cal.App.4th 1292, the court rejected the reasoning of Manchel and held that with regard to a juvenile adjudication for oral copulation with a person under the age of 18 in violation of section 288a, subdivision (b)(1), the trial court could not look beyond the statutory elements of the offense of which the defendant was convicted for purposes of imposing a registration requirement. Because the mandatory registration requirement did not apply to juvenile adjudications of the defendant’s offense, the appellate court reversed the trial court’s order denying the defendant’s motion to set aside his registration requirement and directed the trial court to enter a new order relieving him of that requirement. (In re J.P., supra, at p. 1299-1300.)
Here, the People concede that the trial court erred in holding that Hofsheier did not apply. The People therefore request that “the order denying [defendant’s] equal protection claim on the basis that Hofsheier has no application should be reversed and the case remanded to the trial court for determination of the remaining issue of whether [defendant] should be ordered to register under the discretionary principles” of section 290.006. We accept the People’s concession of error.
The People agree that under Hofsheier, when there has been an equal protection violation, the trial court should make a determination pursuant to its discretion under section 290.006 as to whether the defendant should be required to register as a sex offender. As the People note, however, the proper procedure for making such a discretionary determination is unsettled; the issue whether the trial court has jurisdiction to entertain a postjudgment motion to vacate an order requiring a defendant to register as a sex offender after the judgment is final is currently pending before the California Supreme Court. (People v. Pickelsimer (2008) 164 Cal.App.4th 723, rev. granted Oct. 16, 2008, S165680.)
B. Relevant Evidence to Support Exercise of Discretion
In ruling that Hofsheier did not apply, the trial court relied on the circumstances of defendant’s case as shown by the preliminary hearing transcript in the underlying case, over defense counsel’s objection. Defendant contends the trial court erred in doing so. For the benefit of the trial court on remand, we will address defendant’s contention.
When imposing a discretionary registration requirement under section 290.006, “the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case.” (Hofsheier, supra, 37 Cal.4th at p. 1197.)
Here, the trial court based its decision on the preliminary hearing transcript. However, all the evidence at the preliminary hearing was presented pursuant to Proposition 115. The People concede that “[c]oncerns regarding the fact that the preliminary hearing was conducted pursuant to Proposition 115 are valid ones.” In People v. Trujillo (2006) 40 Cal.4th 165, the court held that in determining whether a prior conviction was a strike, the trial court could consider those parts of the record of a prior conviction that “‘reliably reflect[] the facts of the offense for which the defendant was convicted.’” (Id. at p. 177.) The court stated that the transcript of the preliminary hearing was a part of such record “‘because the procedural protections afforded the defendant during a preliminary hearing tend to ensure the reliability of such evidence. Those protections include the right to confront and cross-examine witnesses and the requirement those witnesses testify under oath, coupled with the accuracy afforded by the court reporter’s verbatim reporting of the proceedings.’” (Ibid., quoting People v. Reed (1996) 13 Cal.4th 217, 223.)
However, preliminary hearing testimony taken under Proposition 115 does not meet the “reliable reflection” definition established by Reed. (See People v. Best (1997) 56 Cal.App.4th 41, 43-46, abrogated on another ground recognized in People v. Golde (2008) 163 Cal.App.4th 101, 112.) Penal Code section 872 and Evidence Code section 1203.1 create an exception to the hearsay rule for such testimony only for the purposes of the preliminary hearing. Thus, we conclude the trial court may not rely on the preliminary hearing transcript when considering whether to impose a discretionary registration requirement under Penal Code section 290.006.
IV. DISPOSITION
The order is reversed and the matter is remanded to the trial court for a determination whether defendant should be required to register under the discretionary principles of section 290.006.
We concur: RICHLI J., KING J.