In People v. Brandao (2012) 203 Cal.App.4th 436 [137
Cal.Rptr.3d 672], the mandatory sex registration requirement for defendants
convicted of misdemeanor annoying or molesting a child (Pen. Code, § 647.6,
subd. (a)) does not violate equal protection of the law. Darren Chaker notes
that Appellant pled guilty to misdemeanor annoying or molesting a child for
sending amorous text messages to a 15-year-old girl. (Pen. Code, § 647.6, subd.
(a).)
On appeal he challenged the mandatory sex registration
requirement for that offense (Pen. Code, § 290, subd. (c)) on state and federal
equal protection grounds, citing People v. Hofsheier (2006) 37 Cal.4th 1185.
Appellant's case was transferred to the Court of Appeal. In Hofsheier, the mandatory
registration requirement for persons convicted of oral copulation with a minor
(Pen. Code, § 288b, subd. (b)(1)) was held to violate equal protection because
persons convicted of sexual intercourse with a minor (Pen. Code, § 261.5, subd.
(c)) faced only discretionary registration.
The Court of Appeal noted that those cases refusing to
extend Hofsheier to other sexual offenses "focused on the dissimilarities
between the two classes of offenders, distinguishing" their crimes from
Hofsheier-type offenses. While it is true that a violation of section 647.6,
subdivision (a) may involve conduct less overtly sexual than other offenses for
which registration is discretionary, nonetheless, the defendant's conduct must
have objectively irritated or disturbed a reasonable person "regardless of
the defendant's intent." This distinguishes the crime from Hofsheier-type
offenses. The fact that a section 647.6, subdivision (a) offense is a
misdemeanor does not render it less deserving of mandatory registration because
"the unique motivational requirement” (an unnatural or abnormal sexual
interest or intent with respect to children) sets the statute apart. Thus,
those defendants convicted of violating 647.6, subdivision (a) are not
similarly situated to defendants convicted of Hofsheier-type offenses.
© 2011 Darren Chaker. All Rights Reserved.
