THE PEOPLE v. JAMIE RAMIREZ GOMEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JAMIE RAMIREZ GOMEZ, Defendant and Appellant.

B224291

Decided: February 24, 2011

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar, Janet Neely and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

During the summer of 2009, 29-year-old Jamie Ramirez befriended 15-year-old Jane Doe. He lied to her and said that he was a 17-year-old gang member and then engaged in sexual intercourse with her “about four times.”   In October 2009, the People filed an information charging Gomez with three offenses:  unlawful sexual intercourse with a minor under the age of 16 years (count 1;  Pen.Code, § 261.5, subd. (d)); 1  sexual

penetration by foreign object of a minor under the age of 16 years (count 2;  § 289, subd. (i));  and attempting to dissuade a witness (count 3;  § 136.1, subd. (a)(2)).

On April 14, 2010, Gomez waived his constitutional trial rights, and pleaded no contest to all three counts.   On May 10, 2010, the trial court sentenced Gomez to a total aggregate term of 15 years 4 months, and ordered him to register as a sex offender based upon his conviction for sexual penetration in violation of section 289, subdivision (i), as alleged in count 2.

DISCUSSION

At the time of his plea, the trial court and counsel discussed whether Gomez was subject to mandatory sex offender registration.   At the time of sentencing, the trial court noted Gomez's position that mandatory sex offender registration was not required, but ruled that it was.   Gomez's sole contention on appeal is that sex offender registration was not mandatory on his conviction for sexual penetration of a minor under the age of 16 years in violation of section 289, subdivision (i).   He contends the matter should be remanded to the trial court with directions to exercise its discretion in determining whether sex offender registration is appropriate in his case.   The People submit that Gomez's contention is well-taken.   We agree.

Under section 290, all persons who commit enumerated sex offenses are required to register as sex offenders for life.   The list of registrable offenses is set forth in section 290, subdivision (c);  the listed offenses do not include unlawful sexual intercourse with a minor (§ 261.5), but do include sexual penetration of a minor (§ 289, subd. (i)).

In People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier ), the Supreme Court held that the application of section 290's mandatory registration scheme may -- depending upon the circumstances of a particular case -- violate a defendant's equal protection rights where it would result in similarly situated offenders being subjected to different registration outcomes without any rational basis.   In Hofsheier, the Supreme Court addressed section 290's mandatory sex offender registration requirement as applied to a defendant who had been convicted of oral copulation of a minor in violation of 288a, subdivision (b)(1).   It ruled that mandatory registration for that offense would violate the defendant's equal protection rights.  Hofsheier noted that if the defendant had engaged in sexual intercourse with his underage victim, rather than oral copulation, he would not have been subject to mandatory sex offender registration.   It held that there was no rational basis for treating a defendant convicted of the crime of oral copulation differently from a defendant convicted of the crime of sexual intercourse.  (Hofsheier, at p. 1195.)

Following Hofsheier, a number of cases have addressed its applicability to various sex crimes involving minors.   In People v. Garcia (2008) 161 Cal.App.4th 475, Division One of our court ruled that Hofsheier applied to a defendant who was convicted of oral copulation with a minor under the age of 16 in violation of section 288a, subdivision (b)(2).   In People v. Manchel (2008) 163 Cal.App.4th 1108, Division Seven of our court came to a different conclusion, declining to apply Hofsheier to a defendant who was convicted of oral copulation with a minor under the age of 16 years in violation of section 288a, subdivision (b)(2).

In re J.P. (2009) 170 Cal.App.4th 1292 involved a ward of the juvenile court who was adjudged to have committed the crime of oral copulation with a minor in violation of section 288a, subdivision (b)(1).   Division Five of the First District Court of Appeal ruled that Hofsheier applied.

People v. Ranscht (2009) 173 Cal.App.4th 1369 involved a defendant convicted of sexual penetration of a minor in violation of section 289, subdivision (h).  Division One of the Fourth District Court of Appeal applied Hofsheier.

In People v. Luansing (2009) 176 Cal.App.4th 676, Division Two of our court applied Hofsheier to a defendant convicted of oral copulation with a minor under the age of 16 years in violation of section 288a, subdivision (b)(2).

In Gomez's current case, the issue is whether Hofsheier should be applied when a defendant stands convicted of sexual penetration of a minor under the age of 16 years in violation of section 289, subdivision (i).   The Attorney General submits that the “weight of authority,” in the form of the cases noted above, supports Gomez's contention that the Hofsheier analysis should apply.   We agree.   In reaching our conclusion, we understand Division Seven's perspective that a defendant convicted of a sex offense with a very young minor (under the age of 16 years) may not be in the same circumstance as a defendant convicted of a sex offense with a minor.  (People v. Manchel, supra, 163 Cal.App.4th 1108.)   However, it remains true that Gomez is not subject to mandatory sex offender registration based upon his conviction for sexual intercourse with Jane Doe, and we agree with the weight of the cases that it may violate equal protection principles to subject him to mandatory sex offender registration because he sexually penetrated his victim during the commission of sexual intercourse.

DISPOSITION

The judgment is conditionally reversed and the cause is remanded to the trial court with directions to hold a new sentencing hearing at which it shall consider, in an exercise of its discretion, whether Gomez shall be ordered to register as a sex offender under the discretionary registration statute. (§ 290.005;  see Hofsheier, supra, 37 Cal.4th at p. 1209.)   If the trial court determines that Gomez is subject to sex offender registration, it shall then reinstate the judgment.

We concur:

RUBIN, J. GRIMES, J

FOOTNOTES

FN1. All further section references are to the Penal Code..  FN1. All further section references are to the Penal Code.

BIGELOW, P. J.