Opinion
F074674
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. SHEILA TUCK, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Brian A. Segal, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15903398)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Brian A. Segal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
In 2016, appellant Sheila Tuck pleaded no contest to one count of felony possession of child pornography (Pen. Code, § 311.11, subd. (a); count 1). She was placed on three years' formal probation and ordered to register as a sex offender pursuant to section 290. Her only claim on appeal is an equal protection challenge to her mandatory registration. We find no constitutional violation and affirm.
All future statutory references are to the Penal Code unless otherwise noted.
Section 290 is part of the Sex Offender Registration Act (the Act), "which was enacted to prevent recidivism of sex offenders and facilitate their surveillance by police." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 874 (Johnson).) Section 290 is a key provision of the Act that automatically applies to certain enumerated offenses and "'"imposes on each person convicted a lifelong obligation to register." [Citations.] Registration is mandatory [citation], and is "not a permissible subject of plea agreement negotiation" [citation].'" (Johnson, supra, 60 Cal.4th at pp. 876-877.)
BACKGROUND
Because the issue raised in this appeal is a constitutional challenge to section 290, we do not provide a lengthy summary of the facts. In 2015, appellant was charged in count 1 with possession of child pornography (§ 311.11, subd. (a)). In count 2, she was charged with exhibiting a minor in pornography (§ 311.2, subd. (c)). She eventually agreed that an adequate factual basis existed in the police reports to support her plea. She pleaded no contest to count 1, and the charge in count 2 was dismissed.
DISCUSSION
Appellant argues her mandatory registration pursuant to section 290 violated equal protection. She notes that under at least five statutes a defendant may be guilty of a sex-related crime involving a minor, but the trial court still retains discretion whether the defendant must register under section 290. She asserts that, as a first-time offender, she has a very low risk of recidivism. According to appellant, data suggests a low likelihood that a person who views child pornography will then commit child molestation. She stresses that her offense did not involve contact with a minor. She maintains no rational basis exists for her mandatory registration. We find appellant's constitutional challenge unpersuasive.
These five offenses are:
(1) Knowingly distributing or exhibiting "harmful matter" to a minor. (§ 313.1, subd. (a).) "'Harmful matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." (§ 313, subd. (a).);
(2) Knowingly distributing "harmful matter" to a person that depicts a minor or minors engaging in sexual conduct intending to arouse or gratify the lust or passions of that other person or the minor. (§ 288.2, subd. (a)(1).);
(3) Sexual intercourse with a minor who is not the perpetrator's spouse. (§ 261.5, subd. (a).);
(4) Engaging in degrading, lewd, immoral, or vicious habits or practices in the presence of a child. (§ 273g.); and
(5) Knowingly procuring a minor for an obscene, indecent, or immoral purpose. (Lab. Code, § 1308, subd. (a)(3).)
While certain crimes identified in section 290 require registration as a sex offender (§ 290, subd. (c)), other crimes are discretionary if the trial court "finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification." (§ 290.006, subd. (a).) For instance, the Act allows for discretionary sex offender registration for those convicted of unlawful sexual intercourse with a minor (§§ 261.5, 290.006). (Johnson, supra, 60 Cal.4th at p. 874.)
"The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classifications of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished. [Citation.]" (Adams v. Comm'n on Judicial Performance (1994) 8 Cal.4th 630, 659.)
To prevail on an equal protection challenge, a party must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Mackenzie (1995) 34 Cal.App.4th 1256, 1269.) Using the appropriate level of judicial scrutiny, a reviewing court must decide whether the distinction is legally justified. (Ibid.) "[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. [Citations.]" (Heller v. Doe (1993) 509 U.S. 312, 319-320.)
A rational basis review is used for the lifetime registration requirements imposed by section 290, which do not involve the loss of liberty. (People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14.) Under a rational basis review, "legislation will satisfy constitutional requirements if it bears a rational relationship to a legitimate state purpose.' [Citations.]" (People v. Mackenzie, supra, 34 Cal.App.4th at p. 1269.) We review a constitutional challenge, such as an equal protection claim, de novo. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632.)
"The legislative history of section 311.11, which was enacted in 1989 (Stats. 1989, ch. 1180, § 2, p. 4568), suggests that the purpose of this law was ... to protect children from sexual exploitation." (People v. Gerber (2011) 196 Cal.App.4th 368, 381.) Pedophiles can use child pornography to break down the resistance of children, who then become victims of sexual abuse. (Ibid.) Illegal materials, such as photos and videos, may be used to induce children to engage in sexual activity. (Ibid.)
Child pornography is "intrinsically related to the sexual abuse of children," because it constitutes "a permanent record of the children's participation ...." (New York v. Ferber (1982) 458 U.S. 747, 759.) The state has a compelling interest in "'safeguarding the physical and psychological well-being of a minor,'" and in protecting minors from sexual exploitation and abuse. (Id. at pp. 756-757.) "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." (Id. at p. 757.)
Our Supreme Court has determined that the Legislature is "given wide latitude to decide who should be subject to registration requirements." (People v. McKee, supra, 47 Cal.4th at p. 1211, fn. 14.) The high court has also noted "it is settled that section 290's lifetime registration requirement legitimately intends to 'promote the "'state interest in controlling crime and preventing recidivism in sex offenders.'"' [Citation.] Moreover, there is no doubt that mandatory registration for sex offenders who prey on underage victims is rationally related to that important and vital public purpose. [Citation.]" (Johnson, supra, 60 Cal.4th at pp. 881-882.)
In People v. Gonzalez (2012) 211 Cal.App.4th 132, the appellate court addressed an equal protection challenge involving section 311.11 and those convicted of statutory rape. (Id. at p. 134.) The Gonzalez court noted that child pornography is "inherently capable of being copied or duplicated." (Id. at p. 136.) Possession of child pornography is usually part of a chain of acts, starting with creation of the offending image, followed by reproduction and transmission of the image, and then often peer-to-peer reproduction and transmission of the image. (Ibid.) The production of child pornography often involves the use of force, fear, or duress against the victim child. (Id. at p. 139.) Gonzalez held that imposition of mandatory sex offender registration on those convicted of violating section 311.11, but not those convicted of statutory rape, did not violate equal protection. It reached this holding, in part, because statutory rape is "characteristically voluntary" but child pornography often relies on force, fear or duress with the child victim. (Gonzalez, supra, at p. 139.) It is unlikely that the victim voluntarily agrees that others may possess the illegal material. (Ibid.) Even if a child voluntarily provided "'self-produced'" pornography to another person, such as a texted picture, the child can never be sure who else will ultimately possess the image "because pornography can be reproduced and transmitted indefinitely, as discussed above." (Ibid.) Finally, Gonzalez determined that, "because in many instances it is impracticable to locate the child to determine whether he or she acted voluntarily, the Legislature could reasonably make the possession of all child pornography subject to the registration requirement." (Ibid.)
Appellant argues that violating section 311.11 involves possession of illegal images, and it does not involve their reproduction, sale, distribution, or transmission, which are covered in other criminal statutes. She urges this court to reject Gonzalez, supra, 211 Cal.App.4th 132. She contends its reasoning contradicts the stated purpose of sex offender registration under section 290, which she claims is "to track offenders who are likely to re-offend."
We disagree with appellant's limited interpretation of section 290's purpose. Our high court has stated that "[s]ection 290 'is intended to promote the "'state interest in controlling crime and preventing recidivism in sex offenders'"' [citation] and serves 'an important and vital public purpose by compelling registration of many serious and violent sex offenders who require continued public surveillance' [citations]. Children, in particular, 'are a class of victims who require paramount protection' from sex offenders [citation], and mandating lifetime registration of those who prey on underage victims serves 'to notify members of the public of the existence and location of sex offenders so they can take protective measures' [citation]." (Johnson, supra, 60 Cal.4th at p. 877.)
We decline to reject Gonzalez. In any event, our affirmance of appellant's judgment is not based on Gonzalez, but, rather, the reasonable facts that could provide a rational basis for the Legislature's classification. (See Heller v. Doe, supra, 509 U.S. at p. 320.)
In this matter, the Legislature could conclude that possessing child pornography perpetuates the exploitation of children and constitutes a continuing danger to them. (See Shoemaker v. Harris (2013) 214 Cal.App.4th 1210, 1230.) Such materials may be used to solicit and encourage other children to engage in sexual activity. (People v. Gerber, supra, 196 Cal.App.4th at p. 381.) The Legislature could rationally decide to require mandatory registration for possessing child pornography while making registration for other sex-related crimes involving minors, such as those highlighted by appellant, subject to discretionary registration. The Legislature is "given wide latitude to decide who should be subject to registration requirements." (People v. McKee, supra, 47 Cal.4th at p. 1211, fn. 14.)
The United States Supreme Court has held that "a classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' [Citations.]" (Heller v. Doe, supra, 509 U.S. at p. 320.) Based on the legislative concerns noted above, the mandatory registration requirement for violation of section 311.11, subdivision (a), bears a rational relationship to a legitimate state purpose. The Legislature could rationally conclude that, to prevent the exploitation of children through possession of child pornography, violators of section 311.11 should be subject to the continuing scrutiny represented by lifetime sex offender registration. (See Shoemaker v. Harris, supra, 214 Cal.App.4th at p. 1231.) Thus, this mandatory registration requirement does not violate equal protection. Accordingly, constitutional error is not present, and this claim fails.
DISPOSITION
The judgment is affirmed.