Opinion
D072027
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL BENHOFF, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN324140) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Thomas Michael Benhoff pleaded guilty to two counts of annoying or molesting children, as violations of Penal Code section 647.6, subdivision (a)(1). He also pleaded guilty to one count of indecent exposure under section 314, subdivision (1). He further admitted to the existence of several prior convictions, including one under section 288, subdivision (a) (felony lewd intent touching of child under 14 years old). As allowed under section 647.6, his prior conviction under section 288, subdivision (a) "was used to impose the alternative felony sentencing provision of section 647.6, subdivision (c)(2) due to his status as a repeat offender." (People v. Johnson (2002) 96 Cal.App.4th 188, 203.)
All further statutory references are to the Penal Code unless noted. Section 647.6, subdivision (a)(1) provides that "[e]very person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment."
Accordingly, Benhoff was sentenced to 12 years in state prison, comprised of the upper term of six years on count 1, pursuant to section 647.6, subdivision (c)(2). The term was doubled in compliance with the three strikes law. (§§ 667, subd. (b)-(i), 1170.12, 668.) A concurrent 12-year term was imposed on count 2. His sentence for indecent exposure (count 3) was stayed pursuant to section 654.
Under section 647.6, subdivision (c)(2), the following prior felony convictions are specified as requiring such a reclassification of a current subdivision (a) offense to felony status: "Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or 289, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288 , or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years." (Italics added; see pt. III.B, post, for description of the enumerated previous felony conviction categories.)
Pursuant to the plea agreement, count 4 was dismissed, unlawful possession of child pornography under section 311.11, subdivision (a).
On appeal, Benhoff invokes equal protection principles to contend the use of his prior conviction under section 288, subdivision (a), to elevate his offenses of annoying or molesting children to felony status pursuant to the terms of section 647.6, subdivision (c)(2), was an unlawful one. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) He reasons that another defendant who might be subject to the application of this felony reclassification system, under section 647.6, subdivision (c)(2), might escape such elevation, because its statutory list of potential elevating prior convictions does not include a similar, even more serious sex offense, the one prohibited by section 288.7 (an adult's sexual intercourse, sodomy, oral copulation or sexual penetration, with a child 10 years old or younger). Under either strict scrutiny or rational basis analysis, Benhoff claims entitlement to a remedy of reversal of his felony convictions, with a reduction to misdemeanor status under section 647.6, subdivision (a)(1), and a remand for resentencing.
Section 288.7 was enacted in 2006. Its subdivision (a) provides that a person 18 years of age or older "who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life." Under this section's subdivision (b), "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." (§ 288.7, subds. (a), (b); italics added.)
This challenge to the constitutionality of the felony reclassification system established by section 647.6, subdivision (c)(2) presents questions of law that we review de novo. (Raef v. Superior Court (2015) 240 Cal.App.4th 1112, 1120; California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 208.) Both parties have also discussed the potential application of the judicial reformation doctrine in this context. (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 661.)
The Legislature traditionally has been understood to exercise a broad discretion in defining crimes and specifying punishment. (People v. Wilkinson (2004) 33 Cal.4th 821, 837-838 (Wilkinson).) "A defendant . . . 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' " (Id. at p. 838.) In conducting rational basis review of a legislative choice, a court may engage in " ' "rational speculation" ' " as to the justifications for the choice made, and need not ensure that every possible basis for any such judicial speculation have foundation in the record. (People v. Turnage (2012) 55 Cal.4th 62, 74-75.)
We determine that the rational basis test applies to Benhoff's claims of denial of equal protection in this sentencing context. "Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ' [Citations.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. . . . To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881, 888-889 (Johnson) [overruling a recent case applying equal protection principles in the sex offender registration context, People v. Hofsheier (2006) 37 Cal.4th 1185].)
Having considered this equal protection challenge against the potential imposition of different sentences for allegedly comparable crimes, we discern no equal protection violation. We have no occasion to invoke the judicial reformation doctrine. The judgment of conviction is affirmed.
I
UNDERLYING FACTS
Since this matter was resolved by way of a plea agreement, the following factual background section is taken from the probation report. On an afternoon in September 2013, Benhoff exposed his genitals to two six-year-old girls outside a restroom at an Escondido park. He was immediately spotted by nearby adults, tackled, held and arrested.
The information filed against Benhoff alleged two counts of annoying or molesting children (§ 647.6, subd. (a)(1)), and further pled he had been previously convicted of a felony violation of section 288, subdivision (a). That was a 1992 lewd act with a child (among other counts), culminating in his guilty plea. That previous felony conviction, within the meaning of section 647.6, subdivision (c)(2), elevated the instant annoyance charges to felonies. (See fn. 2, ante.) Specifically, his "conviction under Section 288 " qualified under section 647.6, subdivision (c)(2) to elevate the allegations to felonies. (Ibid., italics added.)
Benhoff's same prior conviction under section 288, subdivision (a) was also pled as a strike prior. (§§ 667, subds. (b)-(i), 1170.12.) As to count 3, indecent exposure, the same prior conviction was alleged, as well as a 1996 prior conviction under section 314, subdivision (1). At various times throughout the trial court proceedings, Benhoff unsuccessfully raised equal protection claims, as the People now acknowledge.
Upon Benhoff's guilty plea to current counts 1 through 3, count 4 was dismissed. He admitted to the prior conviction under section 288, subdivision (a) and also admitted it was a strike offense, and that he had a prior conviction under section 314, subdivision (1). A 12-year term was imposed, as described above. Benhoff obtained a certificate of probable cause to appeal.
II
REQUIREMENT OF SIMILARLY SITUATED CLASSES
A. Purpose of the Law Being Challenged
" 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley); People v. Jacobs (1984) 157 Cal.App.3d 797, 801-803.) " 'The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' [Citation.] [¶] 'The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only . . . that he will receive like treatment with all other persons similarly situated.' " (Id. at p. 801.)
Our initial inquiry "is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " (Cooley, supra, 29 Cal.4th 228, 253; italics added.) For these purposes of identifying the law that is being challenged, in this context of elevating misdemeanors to felonies, the parties view the subject statutory classifications in different ways. Benhoff focuses on the terms of section 647.6, subdivision (c)(2), while the People mainly discuss the effect of sections 288, subdivision (a) and 288.7, insofar as the "similarly situated" requirement is concerned. (Cooley, supra, at p. 253.)
Benhoff flatly states that section 647.6 violates equal protection in providing for disparate treatment of similarly situated individuals who have committed a current violation of its subdivision (a). Specifically, he claims it "irrationally provides for elevated felony treatment for individuals such as appellant who have a prior conviction for committing a non-forcible lewd touching of a child under the age of 14 years in violation of [] section 288, subdivision (a), while providing for misdemeanor treatment of individuals who have a prior conviction for committing the indisputably more serious offense of engaging in sexual intercourse, sodomy, oral copulation, or sexual penetration with a child who is 10 years of age or younger by a person 18 years of age or older in violation of [] section 288.7."
The People respond that the classes of defendants created by sections 288 and 288.7 are not similarly situated in a manner that implicates equal protection, because those two sections contain different provisions in several respects. These include the intent required (specific in § 288, subd. (a) v. general in § 288.7); the specified ages of victims to be protected by the sections (children under 14 in § 288, subd. (a) v. children under 10 in § 288.7); and the imposition of determinate sentencing (§ 288, subd. (a) v. indeterminate sentencing (§ 288.7)). For example on the age factor, the People argue, "Although section 288 covers children under the age of 14, section 288.7 does not cover victims age 11 and older. As a result, no defendant exists under section 288 .7 who is similarly situated to an individual convicted of committing a lewd act on an 11-year-old, in violation of section 288." (Italics added; see Smith v. Municipal Court (1978) 78 Cal.App.3d 592, 601 ["[I]t is one thing to hold . . . that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally. The latter are not similarly situated for equal protection purposes." (Italics omitted.)].)
The People's respondent's brief discusses to some extent the differences between sections 288.7 and 288, subdivision (b)(1) (force or fear) and subdivision (c)(1) (age gap). Here, Benhoff's prior conviction was identified only as being a violation of section 288, subdivision (a), and we shall limit our analysis to that subdivision. We note, however, that the probation report shows that two counts of use of force in lewd touching were originally charged in Benhoff's 1992 case, but his plea agreement resulted in the dismissal of the counts involving force.
In Johnson, supra, 60 Cal.4th at page 878, footnote 4, the Supreme Court acknowledged that equal protection analysis, involving prior offenses that give rise to subsequent sentencing consequences, will allow the court to compare the various types of underlying prior convictions. (People v. Kennedy (2009) 180 Cal.App.4th 403, 409-410; People v. Singh (2011) 198 Cal.App.4th 364, 366-367.) Arguably, we could identify the laws being "challenged" in this instance only as section 288, subdivision (a) as compared to section 288.7. Benhoff was subject to only section 288, subdivision (a), and it could be said that he is not similarly situated to those other defendants currently charged under section 647.6, subdivision (a), but who have other prior convictions that are not enumerated in section 647.6, subdivision (c)(2). Since its enactment in 2006, a section 288.7 conviction could theoretically operate to elevate a current offense in this sentencing context. But arithmetically speaking, even a conviction under that section 288.7, if it were promptly reached in 2007, would only initiate a 15-years-to-life sentence, such that no "similarly situated" person (one who might eventually be released and then reoffend under section 647.6, subdivision (a)) could be identified until at least the year 2022.
Courts are reluctant to resolve constitutional issues unless required to do so. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66 [constitutional questions not reached where other grounds are available to dispose of the issues presented].) Benhoff cannot yet show the existence of a reoffending person similarly situated to him, for purposes of analyzing the sentencing consequences of a prior conviction under section 288.7. However, when we identify the law being "challenged" in this instance as the reclassification system in section 647.6, subdivision (c)(2) as a whole, a constitutional issue is fairly presented on whether it applies differently and unequally to different defendants who are currently being charged under section 647.6, subdivision (a), but who have suffered different types of prior convictions. It is conceivable that such persons might be subject to disparate sentencing treatment, depending on whether the identified prior conviction fell within a specific category enumerated in section 647.6, subdivision (c). We therefore shall assume that Benhoff and/or another such recidivist defendant, each facing charges under section 647.6, are sufficiently " 'similarly situated for purposes of the law challenged.' " (Cooley, supra, 29 Cal.4th 228, 253.)
B. No Strict Scrutiny Analysis Required Here
The same basic analysis is utilized for state and federal equal protection claims, under California Constitution, article I, section 7 and United States Constitution, Fourteenth Amendment. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572; Wilkinson, supra, 33 Cal.4th at pp. 836-837.) Benhoff cannot properly rely upon People v. Olivas (1976) 17 Cal.3d 236 in support of an argument that strict scrutiny must be applied to these legislative classifications. (Id. at pp. 242-243, 250-251.) In Wilkinson, supra, 33 Cal.4th at page 837, the Supreme Court explained that Olivas should not be read as requiring strict scrutiny review "whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes." Its actual focus was instead upon the distinctions between treatment of juvenile or adult offenders. (Olivas, supra, at pp. 245, 250-251.) Because Benhoff does not challenge the validity of his plea bargain admitting to the underlying violation of section 647.6, subdivision (a), he has no grounds here to assert a violation of his fundamental liberty interests, as against the sentencing consequences flowing from his prior conviction under section 288, subdivision (a). (People v. Flores (1986) 178 Cal.App.3d 74, 88 [rational basis test applied to sentencing disparity objection].)
As in Johnson, supra, 60 Cal.4th at page 881, this asserted statutory disparity has not been shown to implicate any suspect class or fundamental right. We accordingly inquire whether there is any rational relationship between the disparate treatment alleged and legitimate governmental purposes. (Heller v. Doe (1993) 509 U.S. 312, 321 [some footing in reality required in rational basis review, to justify a disparate legislative treatment].)
III
RATIONAL BASIS ANALYSIS
As a backup position, the People contend that even if the identified classes are held to be similarly situated, rational bases exist for treating the two classes differently, as individuals who were previously convicted of different crimes that ultimately resulted in different specified punishments for their subsequent offenses. Benhoff's equal protection claim must be tested for its showing that the two identified types of defendants "are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
A. Effect of People v. Tirey Authority
Much of Benhoff's argument is grounded in People v. Tirey (2015) 242 Cal.App.4th 1255 (Tirey III), the third in a series of opinions arising in a comparable factual context. In the Tirey litigation, the defendant had a prior conviction of section 288, subdivision (a) and he sought to obtain a certificate of rehabilitation pursuant to section 4852.01. Originally, the court issued a nonpublished opinion (Tirey I), then granted rehearing and issued a second opinion reaching the same conclusion (Tirey II). Originally, in Tirey I and Tirey II, the appellate court had found that an equal protection violation was shown by a then-effective disparate treatment of persons violating section 288, subdivision (a), as opposed to persons violating section 288.7, "vis-à-vis their right to petition for a certificate of rehabilitation." (Tirey III, supra, at p. 1261.) The court's original decisions identified this issue as one the Legislature should review and consider, as a statutory anomaly. (Id. at pp. 1261-1263.)
In Tirey I, rehearing was granted December 11, 2013. The subsequent opinion, Tirey II, was filed April 25, 2014, G048369, but was superseded by a grant of review by the California Supreme Court on August 20, 2014 (S219050). The cause was then transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions, resulting in the issuance of Tirey III, supra, 242 Cal.App.4th 1255.
However, once the California Supreme Court granted a petition for review in Tirey II and transferred the case back to the appellate court for reconsideration in light of Johnson, supra, 60 Cal.4th 871, a different result ensued. As described in Tirey III, the Legislature took action to eliminate the equal protection problem, and the relevant legislative history clearly showed that the Legislature viewed the new enactment as "clarifications necessary" in response to the Tirey litigation. (Assem. Bill No. 1438 (2013-2014 Reg. Sess.); Tirey III, supra, 242 Cal.App.4th at p. 1261.) "Under the language of the relevant statutes as they now read, neither defendant nor a person convicted of committing a similar or more heinous sex crime against a minor would be eligible to apply for a certificate of rehabilitation; as a consequence, no constitutional issues are implicated." (Tirey III, supra, at p. 1258; italics added.) The court further determined that there was no retroactivity problem in applying the legislation in that manner. (Id. at p. 1263.)
Benhoff is urging this court to use the same reasoning as in the original, superseded Tirey I and II opinions, and to find disparate treatment exists between similarly situated persons violating section 288, subdivision (a), as opposed to persons violating section 288.7, "vis-à-vis" the elevation of a subsequently committed offense under section 647.6, subdivision (a), to felony status due to the operation of section 647.6, subdivision (c)(2). The problem with this flat reliance on Tirey III, supra, 242 Cal.App.4th at page 1261, is that the current and final version of that opinion declined to decide the equal protection arguments. (Id. at p. 1263.)
B. Development of List of Elevating Prior Convictions;
Section 647.6, Subdivision (c)(2)
In Tirey III, supra, 242 Cal.App.4th 1255, the court summarized its history of the case, which motivated prompt action by the Legislature to make a significant change in the sex offenders' rights that were under discussion there, "vis-à-vis their right to petition for a certificate of rehabilitation." (Id. at p. 1261.) In our case, neither party has provided any significant discussion of the legislative history of section 647.6, subdivision (c)(2). However, from the historical and statutory notes provided in the code, it is evident that section 647.6 dates back to 1929 as an anti-vagrancy law. The portion adding an elevating prior was first enacted in 1949 (to make a § 288 prior conviction, lewd conduct toward a minor under 14 years old, have the effect of imposing a prison sentence). (Historical and Statutory Notes, 48C West's Ann. Pen. Code (2010 ed.) foll. § 647.6, p. 410.) In 1987, an addition was made to section 647.6, subdivision (c)(2) to designate two additional elevating priors, those based on a felony conviction under the same section (§ 647.6), or based on a felony conviction of section 311.4 (using minor under 14 years of age in distribution of obscene matter; Historical and Statutory Notes, 48C West's Ann. Pen. Code (2010 ed.) foll. § 647.6, p. 411).
As the People point out, the Legislature in 2000 significantly expanded this list of elevating prior convictions, as found in section 647.6, subdivision (c)(2), to include a number of more specific sex crimes. (Sen. Bill No. 1784 (Reg. Sess. 1999-2000); Stats. 2000, ch. 657, § 1, p. 4329.) Thus, Senate Bill No. 1784 expanded the list of elevating priors to include the following categories of felony convictions that involved a minor under 16 years of age, and that have determinate sentencing provisions: rape (§ 261 [§ 264 requires determinate sentence]); rape in concert (§ 264.1 [its subds. (a), (b) require determinate sentence]); incest (§ 285 [determinate sentence]); sodomy (§ 286 [multiple subdivisions require determinate sentence]); oral copulation (§ 288a [multiple subdivisions require determinate sentence]); and/or rape with a foreign object (§ 289 [multiple subdivisions require determinate sentence]). Senate Bill No. 1784 even more specifically expanded this list of elevating prior felonies to include the following special category of a prior conviction involving a minor: substantial sexual conduct with a child under 14 (§ 288.5, subd. (a) [requires determinate sentence]).
From this history of additions to the list of elevating prior convictions, the People argue the legislative purpose of section 647.6 is clearly to increase penalties for such "second offenders," and that it is possible the Legislature intended to keep section 288.7 out of this scheme, because it has indeterminate sentencing provisions. Those are said to be factors that show a convicted person's differing risks of reoffending, depending on whether the prior conviction carried a determinate or an indeterminate sentence.
There was another addition in Senate Bill No. 1784, in 2000, to expand this list of elevating prior convictions in section 647.6, to include section 269 (aggravated sexual assault of minor under 14, and seven years younger than the offender; prior version enacted in 1994), as a category of prior felony convictions involving a minor under 16 years of age. This section 269, however, has an indeterminate sentencing provision (§ 269, subd. (b) [15 years to life]). Section 647.6, subdivision (c)(2) has thus included, since the 2000 enactment of Senate Bill No. 1784, an elevating prior felony conviction that involved a minor and that carries an indeterminate sentencing provision, i.e., section 269. The People's argument based on risks of reoffending, as greater for section 288, subdivision (a) offenders, is slightly weakened by the presence of another indeterminate sentencing elevating felony in the section 647.6, subdivision (a) list.
As shown in the Historical and Statutory Notes to section 269, the prior version of section 269, as enacted in 1994, was rewritten in 2006 (Stats. 2006, ch. 337, § 6, p. 2589), both by statute and by initiative. (Historical and Statutory Notes, 47G West's Ann. Pen. Code (2014 ed.) foll. § 269, p. 51.) However, the subdivision (b) provision for indeterminate sentencing appears in all those versions.
However, the People acknowledge that when the Legislature took its action in 2000 with Senate Bill No. 1784, the section under dispute here, section 288.7, had not yet been enacted (since it was added in 2006). Benhoff responds that the issuance of the various opinions in Tirey I, II and III, from 2013 to 2015, served to alert the Legislature to a potential equal protection problem, between such a treatment of section 288, subdivision (a) prior convictions that is different from a treatment of prior convictions under section 288.7. Although the Legislature took action in response to the problem pointed out in Tirey in that context (i.e., sex offender certificates of rehabilitation), it has not done so with respect to the section under dispute here, section 647.6, subdivision (c)(2), i.e., by expanding the list of elevating prior convictions to include section 288.7. Benhoff argues, "Thus, it is not clear the Legislature wants the statute rewritten since the Legislature has already had ample opportunity and has not done so." There is no pending legislative action of which we are aware that would address any possible discrepancy, for purposes of elevating an offense, as between defendants who have prior convictions under section 288, subdivision (a), or under section 288.7.
Thus, after 2006, it may have been a legislative oversight not to include the newly created section 288 .7 within the elevating felony category of section 647.6, subdivision (c)(2), for purposes of establishing subsequent sentencing consequences. (See People v. Noyan (2014) 232 Cal.App.4th 657, 671, citing to Newland v. Board of Governors (1977) 19 Cal.3d 705, 712-713, for the proposition that a statutory classification that has no rational relationship to legitimate state purposes is in violation of equal protection principles, even when resulting from legislative oversight.) Beginning in 2013, Tirey I, II and III (supra, 242 Cal.App.4th 1255) only described a different such problem in a different context, subsequent certificates of rehabilitation. (§ 4852.01.)
However, legislative inattention is not necessarily a persuasive factor in statutory interpretation. (Johnson, supra, 60 Cal.4th 871, 882.) Legislative inaction alone does not necessarily imply legislative approval. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1156; Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 942.) It may well be anomalous in some respects for the Legislature now to require that defendants charged with section 647.6, subdivision (a) as a misdemeanor, but having prior convictions of section 288, subdivision (a), shall have their offenses elevated to felony status, while those other defendants charged with section 647.6, subdivision (a) as a misdemeanor, but having prior convictions of section 288.7, shall not have their offenses elevated to felony status. The Legislature obviously had the ability to impose such a prior conviction reclassification scheme upon a defendant serving an indeterminate sentence, as shown by its inclusion in the list created by section 647.6, subdivision (c)(2) of a prior conviction under section 269 (where that prior conviction effectively subjected the defendant to an indeterminate sentence of 15 years to life; § 269, subd. (b)). We do not find this identified anomaly to be dispositive, and proceed to the additional factors relevant to the rational basis analysis, as identified by existing equal protection authorities.
C. Evaluation of Factors
1. Different Risks of Reoffending
Accepted equal protection standards require the courts to pay some deference to existing legislative choices, in view of the evident purposes of the challenged law. Under section 288.7, very long indeterminate sentences are already being provided for those offenders, which would itself operate to diminish their opportunities to reoffend against children by annoying or molesting them (15 or 25 years to life after their initial offense). We do not find Benhoff's hypothesis persuasive, that an already incarcerated such defendant could still annoy or molest children remotely, by mail or the Internet, either as a direct perpetrator or an aider and abettor. The relevant point, in view of the evident statutory purposes of section 647.6 to punish second offenders, is that an offender incarcerated for a violation of section 288.7 will only be released on parole and subject to the discretion of the Board of Parole Hearings. (§ 3041; In re Lawrence (2008) 44 Cal.4th 1181, 1202 [subject determination is whether inmate poses "an unreasonable risk of danger to society if released from prison"].) The same would be true of an offender incarcerated for a violation of section 269, who might reoffend upon release, and become subject to the operation of section 647.6, subdivision (c)(2). Under section 1203.065, no probation can be granted, "nor shall the execution or imposition of sentence be suspended for, a person who is convicted of violating [either § 269 or 288.7]."
In contrast, previous section 288, subdivision (a) offenders would logically be at a higher risk of reoffending than a hypothetical section 288.7 offender, since section 288, subdivision (a) allowed less rigorous determinate felony sentencing for them. Upon their completion of a determinate sentence, such section 288 offenders are not subject to the higher level of parole supervision when released, as would be the case with an indeterminate term. The Legislature could reasonably have decided to target them in particular, as potential second offenders in this respect, while ignoring the section 288.7 possibility.
Benhoff's reply brief adds that many of the prior convictions enumerated in section 647.6, subdivision (c)(2) make a recidivist defendant eligible for one strike sentencing under section 667.61, under certain circumstances. It is beyond the scope of this opinion to speculate, as he requests, on whether "many people with such a prior conviction are subject to longer prison sentences than those convicted of a violation of Penal Code section 288.7." --------
2. Different Types of Intent Required in Underlying Prior Convictions
In addition to taking different risks of reoffending into account, the Legislature could rationally have distinguished between these two types of elevating felonies, because they specify different types of unlawful intent. Section 288, subdivision (a) contains a specific intent requirement, to punish an act done "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) Section 288.7 is stated in general intent language (e.g., its subd. (a) ["Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life."].) Although Benhoff cites to People v. Ngo (2014) 225 Cal.App.4th 126, 157 as showing that sexual penetration with a child is a specific intent crime under section 288.7, subdivision (b) (because that statute incorporates a definition of "sexual penetration" set forth in section 289), that point was made in the context of discussing instructional error for an attempted crime as a lesser included offense, and is not of much significance here.
Generally, a higher mental state required for a conviction of a specific intent crime is "a distinction that is meaningful" in determining whether that defendant is similarly situated to a defendant convicted of a general intent crime. (People v. Cavallaro (2009) 178 Cal.App.4th 103, 114-115 [discussing equal protection issues under §§ 288 and 261.5, which penalizes unlawful sexual intercourse with person under 18]; see People v. Kennedy, supra, 180 Cal.App.4th 403, 410.) Also in People v. Alvarado (2010) 187 Cal.App.4th 72, 79, the court held that section 288, subdivision (a) offenders are not similarly situated to section 261.5 offenders, because of the differences in the respective intent requirements. Those authorities predate Johnson, supra, 60 Cal.4th 871, which overruled the authority they relied upon (People v. Hofsheier, supra, 37 Cal.4th 1185), but the cases apparently remain good authority on the significant distinctions that exist between two types of prior offenses having different intent requirements. We are concerned here with how the subject prior convictions would each affect a later sentencing proceeding. With regard to their intent requirements, disparate treatment can qualify as a rational legislative choice.
3. Different Ages of Victims in Underlying Prior Convictions; Rationales
Certainly, it is intuitively appealing to claim that the more heinous offense described by section 288.7 could readily have been placed into the list of elevating felonies found in section 647.6, subdivision (c)(2), as an equivalent or greater offense, as compared to others specifically enumerated in that list. Section 288.7 contains a different definition of the victim as under 10, whereas section 288, subdivision (a) protects children under 14. Moreover, in Benhoff's current offense, the two victims were very young, only six years old, justifying a serious sentencing consequence. A seven-year-old victim was also involved in his prior conviction.
We are mindful that for purposes of section 647.6,the sentencing consequences of section 288.7 as an underlying prior conviction will not, as a practical matter, arise until several years hence, since section 288.7 was not enacted until 2006 and a conviction under it requires that a sentence of at least 15 or 25 years to life be served. The Legislature traditionally has been understood to exercise a broad discretion in defining crimes and specifying punishment. (Wilkinson, supra, 33 Cal.4th 821, 837-838.) With respect to section 647.6, subdivision (c)(2), it is not necessary to establish that the "lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] . . . To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' " (Johnson, supra, 60 Cal.4th 871, 881; Federal Communications Commission v. Beach Communications, Inc. (1993) 508 U.S. 307, 314-315 [statutory classifications are presumed to be valid under rational basis review].)
We are bound to presume that the Legislature had some policy rationale for including within section 647.6, subdivision (c)(2), such a section 288, subdivision (a) prior conviction as an elevating and reclassifying factor, but omitting from that scheme a prior conviction under section 288.7. In rational basis review, " 'we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends" ' [citation], or 'because it may be "to some extent both underinclusive and overinclusive." ' " (Johnson, supra, 60 Cal.4th at p. 887.)
Here, Benhoff cannot negate every conceivable basis that might support the Legislature's decision to elevate a section 647.6 conviction to a felony, for a previous section 288, subdivision (a) offender, but its decision not to prescribe the same elevating treatment for a person being convicted under section 647.6 who has a previous section 288.7 offense on record. (Johnson, supra, 60 Cal.4th at p. 881.) These basic principles of equal protection, that persons similarly situated with respect to the legitimate purpose of the law must receive like treatment, are not offended because Benhoff's own actions and demonstrated intent qualified him to receive an elevated sentence, due to his status as a repeat offender within the meaning of section 647.6, subdivision (c)(2). Even assuming that Benhoff, with his prior section 288, subdivision (a) offense, and a different recidivist defendant facing charges under section 647.6 would be " 'similarly situated for purposes of the law challenged,' " there is a rational basis apparent for the legislative choices made in section 647.6, subdivision (c)(2), that operate to elevate a current offense to felony status. (Cooley, supra, 29 Cal.4th 228, 253.)
In view of the above conclusions, we discern no need for any judicial reformation of section 647.6, subdivision (c)(2), to add (or to construe as impliedly added) a category of prior section 288.7 convictions, that would qualify as an additional elevating factor. (Kopp v. Fair Pol. Practices Com., supra, 11 Cal.4th 607, 661 [judicial reformation appropriate to promote statutorily established policy judgments, as alternative to invalidating a challenged provision].) Whether to incorporate section 288.7 into the elevating categories stated in section 647.6, subdivision (c)(2) remains a policy decision that is properly deferred to the legislative body. (See Tirey III, supra, 242 Cal.App.4th at pp. 1261-1263 [Legislature was previously requested to review and consider an identified statutory anomaly].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. HALLER, J.