THE PEOPLE v. VIKKI LYNN PORTER

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. VIKKI LYNN PORTER, Defendant and Appellant.

B228381

Decided: October 24, 2011

Frank D. Rorie, 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, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Vikki Lynn Porter appeals the denial of a motion for relief from the requirement that she register as a sex offender based on her 1991 conviction of oral copulation of a person under the age of 16 years.  (Pen.Code, § 288a, subd. (b)(2).) 1  We affirm the order of the trial court without prejudice to Porter's ability to institute further proceedings in mandate.

FACTS AND PROCEDURAL BACKGROUND

According to the factual summary contained in the report of the probation officer, in 1991, 26–year–old Porter commenced a sexual relationship with a 14–year–old female whose father lived across the street from Porter.   The victim ran away from home and was found in the company of Porter.   The victim stated she voluntarily had engaged in the relationship.

In September of 1991, Porter plead guilty to one count of oral copulation of a person under the age of 16 years. (§ 288a, subd. (b)(2)).   As an automatic consequence of this conviction, Porter was required to register as a sex offender for the rest of her life.  (Former § 290, subd. (a), now § 290, subd. (c).)

On June 22, 2010, Porter filed a motion requesting relief from mandatory lifetime registration as a sex offender, citing People v. Hofsheier (2006) 37 Cal.4th 1185 and People v. Garcia (2008) 161 Cal.App.4th 475, disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4. The trial court conducted a hearing on the motion and thereafter denied the request.2

CONTENTION

Porter contends the mandatory requirement to register as a sex offender violates equal protection because she is similarly situated to those who are not subject to mandatory registration.

DISCUSSION

People v. Hofsheier, supra, 37 Cal.4th 1185, held the requirement of mandatory registration for adults convicted of oral copulation of a minor 16 years of age or older in violation of section 288a, subdivision (b)(1) constitutes an equal protection violation because adult offenders convicted of voluntary sexual intercourse with a minor 16 years of age or older are not subject to mandatory registration.   Thus, the statutory classification affected two or more similarly situated groups in an unequal manner in violation of the equal protection clause of the federal and state Constitutions.  (People v. Hofsheier, supra, at p. 1200.)  Hofsheier remanded the matter to the trial court for a determination whether the defendant should be ordered to register as a sex offender under the discretionary registration provision of former section 290, subdivision (a)(2)(E), now section 290.006.3  (People v. Hofsheier, supra, at pp. 1208–1209.)

People v. Garcia, supra, 161 Cal.App.4th 475, extended Hofsheier to persons convicted of oral copulation of a 14 year old in violation of section 288a, subdivision (b)(2), noting an adult convicted of unlawful sexual intercourse with a 14 year old in violation of section 261.5 is not subject to mandatory registration.  Garcia reasoned:  “If there is no rational reason for this disparate treatment when the victim is 16 years old, there can be no rational reason for the disparate treatment when the victim is even younger, 14 years old.   Accordingly, Hofsheier applies whether the conviction is under subdivision (b)(2) or (b)(1) of section 288a.”   (People v. Garcia, supra, at p. 482.)   A similar result was reached in People v. Hernandez (2008) 166 Cal.App.4th 641, 650 disapproved on other grounds in People v. Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4.)

People v. Manchel (2008) 163 Cal.App.4th 1108, disapproved on other grounds in People v. Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4, declined to extend Hofsheier in the case of an adult convicted of violating section 288a, subdivision (b)(2) who was more than 10 years older than the victim.   Manchel reasoned that, because the defendant's conduct also constituted a lewd act in violation of section 288, subdivision (c)(1), and defendants convicted of that offense are subject to mandatory sex offender registration, Hofsheier's analysis did not apply.  (People v. Manchel, supra, at p. 1114.)

Here, the People cited Manchel in opposition to Porter's motion and the trial court relied on Manchel in denying the motion, noting Porter was more than 10 years older than the victim in this case.

Subsequent appellate opinions have criticized Manchel for assuming the facts underlying a violation of section 288a, subdivision (b)(2) could also support a conviction of lewd conduct with a 14 or 15 year old by a person more than 10 years older under section 288 subdivision (c)(1).  (See People v. Luansing (2009) 176 Cal.App.4th 676, 684–685 disapproved on other grounds in People v. Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4;  People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374–1375;  In re J.P. (2009) 170 Cal.App.4th 1292, 1299.)   Ranscht noted Manchel “overlooks Hofsheier's plain language, 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.’  [Citation.]”  Ranscht concluded the appropriate focus was on the offense of which the defendant had been convicted, not a “hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge.”  (People v. Ranscht, supra, at pp. 1374–1375.)

Although the People cited Manchel in opposition to Porter's motion in the trial court, the People now concede Porter has shown an equal protection violation.   We accept the People's concession on this point and agree with the decisions that have criticized Manchel.

However, this does not mean Porter has demonstrated she is entitled to be free of the registration requirement.  Hofsheier held that, where a defendant has shown he or she cannot constitutionally be subjected to mandatory requirement, the trial court must then consider whether the discretionary registration provision of section 290.006 applies.  Picklesimer rejected various contentions aimed at avoiding the discretionary registration provision of section 290.006 (People v. Picklesimer, supra, 48 Cal.4th at pp. 341–345) and concluded that, because the defendant in that case failed to establish a right to be free from registration as a matter of law, the appropriate result was to affirm the judgment without prejudice to the filing of an original writ petition in the trial court seeking further relief under Hofsheier.   (People v. Picklesimer, supra, at p. 346).

We conclude the same result should obtain here.   The motion Porter filed in the trial court failed to address the discretionary provision of section 290.006.   Because persons seeking relief from the registration requirement must establish they cannot be subjected to mandatory registration or discretionary registration, Porter failed to demonstrate that she was entitled to issuance of a writ of mandate directing her removal from the state sex offender registry.   It follows that the trial court properly denied the motion/petition.   (People v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14 [appellate court affirms trial court's ruling if correct on any ground];  People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11;  People v. Geier (2007) 41 Cal.4th 555, 582 [“ ‘[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.’ “].)

DISPOSITION

The order of the trial court is affirmed without prejudice to Porter's ability to file a petition for writ of mandate in the trial court seeking whatever relief she may be entitled to under People v. Hofsheier, supra, 37 Cal.4th 1185.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Penal Code..  FN1. Subsequent unspecified statutory references are to the Penal Code.

FN2. People v. Picklesimer, supra, 48 Cal.4th 330, held claims for Hofsheier relief “must be brought by way of petition for writ of mandate in the trial court.”  (Id. at p. 335.)   However, Picklesimer acknowledged that a court may, in its discretion, treat a postjudgment motion for Hofsheier relief as a petition for writ of mandate.   (People v. Picklesimer, supra, at pp. 340–341.)   Given that Picklesimer was filed three months before Porter filed her motion in the trial court, it appears the trial court adopted this approach and considered Porter's motion on the merits as a writ petition.   An order denying a petition for writ of mandate is appealable.  (See Public Defenders' Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.).  FN2. People v. Picklesimer, supra, 48 Cal.4th 330, held claims for Hofsheier relief “must be brought by way of petition for writ of mandate in the trial court.”  (Id. at p. 335.)   However, Picklesimer acknowledged that a court may, in its discretion, treat a postjudgment motion for Hofsheier relief as a petition for writ of mandate.   (People v. Picklesimer, supra, at pp. 340–341.)   Given that Picklesimer was filed three months before Porter filed her motion in the trial court, it appears the trial court adopted this approach and considered Porter's motion on the merits as a writ petition.   An order denying a petition for writ of mandate is appealable.  (See Public Defenders' Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.)

FN3. Section 290.006 provides:  “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the 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.   The court shall state on the record the reasons for its findings and the reasons for requiring registration.”.  FN3. Section 290.006 provides:  “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the 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.   The court shall state on the record the reasons for its findings and the reasons for requiring registration.”

CROSKEY, J. ALDRICH, J.