Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050713776
Siggins, J.
Michael Angel Padilla appeals from a judgment that convicted him of two counts of felony lewd and lascivious conduct with a child 15 years of age by a person at least 10 years older, with a jury finding that the second count was committed by use of force or fear. Padilla contends he was erroneously denied his right to present mistake of fact as a defense, and that requiring him to register as a sex offender violates his right to equal protection of the laws. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Padilla, who at the time of the charged offense was 39 years old, had a sexual encounter in an athletic club steam room with a 15-year-old boy. The boy claimed Padilla touched his penis and threatened him not to say anything about the encounter. Padilla did not deny that the incident occurred, but claimed it was the victim who initiated consensual sexual contact, that he never used force or threatened the victim, and that he had “no idea” of the victim’s age.
The jury convicted Padilla of two counts of violating Penal Code section 288, subdivision (c)(1), lewd and lascivious conduct with a 14 or 15-year-old boy by an adult at least 10 years older, and determined he committed one of the counts through the use of force or fear. He was thus ineligible for probation. The trial court sentenced Padilla to concurrent two-year terms in state prison, and ordered him to register as a sex offender under section 290. He timely appeals.
All further statutory references are to the Penal Code.
DISCUSSION
A. Availability of Mistake of Fact Defense
Padilla contends it was error for the trial court to deny his pretrial motion to present evidence that he mistakenly believed the victim was 18 years old. Padilla intended to corroborate the defense with evidence that he believed the victim was at least 18 years old because the athletic club had a policy that people under the age of 16 must be accompanied by an adult at all times, and Padilla “independently thought that people under 18 would not be [in] a steam room in a gym by themselves.” The trial court relied on People v. Paz (2000) 80 Cal.App.4th 293, which held that a mistaken belief of the victim’s age is not a defense to charges under section 288, subdivision (c)(1). Padilla contends we should disregard Paz because it was wrongly decided and is factually distinguishable. We disagree.
Section 288 proscribes “willfully and lewdly commit[ting] any lewd or lascivious act” upon a minor under the age of 16 “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of either the perpetrator or the child. (§ 288, subds. (a), (c)(1).) If the victim is under the age of 14, the crime is a felony punishable by three, six, or eight years in state prison. (§ 288, subd. (a).) If the victim is 14 or 15 years old, and the perpetrator is at least 10 years older than the victim, the crime may be prosecuted as either a misdemeanor or a felony. If it is prosecuted as a felony, the crime is punishable by one, two, or three years in state prison. (§ 288, subd. (c)(1).)
In People v. Olsen (1984) 36 Cal.3d 638, 644-649, our Supreme Court held that a good faith, reasonable mistake of age is not a defense to a prosecution under section 288, subdivision (a) when the victim is under 14 years old. In so holding, the court declined to extend a rule it had announced 20 years earlier in People v. Hernandez (1964) 61 Cal.2d 529 that a reasonable but mistaken belief that the victim was at least 18 years old could provide a defense to statutory rape (now known as unlawful sexual intercourse with a minor under § 261.5). In refusing to extend the Hernandez rule, the Olsen court observed that “ ‘the philosophy applying to violations of [section 288] is entirely different from that applying to [statutory rape].’ ” (Olsen, supra, at p. 645.)
The Legislature amended section 288 after Olsen was decided to add subdivision (c) (now (c)(1)), to criminalize lewd or lascivious acts when the victim is 14 or 15 years old and the perpetrator is at least 10 years older. (See People v. Paz, supra, 80 Cal.App.4th at p. 300, fn. 15.) In Paz, the defendant argued that notwithstanding Olsen, he was entitled to present a mistake of age defense to a prosecution under section 288 on the ground that a victim who is 14 or 15 years old “does not warrant the same public policy child protection given by the law to victims under the age of 14.” (Paz, supra, at p. 295.) After reviewing the legislative history of subdivision (c)(1), the Court of Appeal disagreed and concluded that a mistake of age defense would undermine the Legislature’s objective “to protect 14- and 15-year-olds from predatory older adults to the same extent children under 14 are protected by subdivision (a)....” (Id. at pp. 295, 297.)
The Paz court also found the absence of a consent element in section 288 “strongly suggests the Legislature did not intend the ‘understanding’ of the perpetrator to affect the application of the subdivision.” (People v. Paz, supra, 80 Cal.App.4th at p. 297.) The Paz court explained that mistake of fact could be considered in sentencing: “if in a particular case there exist extenuating circumstances, such as a mistake about the victim’s age, the statute allows for consideration of the factor for sentencing purposes.” (Id. at pp. 297-298.) Olsen was also decided four years before the enactment of subdivision (c)(1), and the Legislature could have included a mistake of age defense in subdivision (c)(1) had it desired “to forbid application of the Olsen rationale to this later subdivision, a part of the same statute dealt with in Olsen.” (Paz, supra, at p. 298.)
Padilla disagrees with this inference regarding the relevance of Olsen, and instead contends the Legislature’s silence indicates that it intended the rule in Hernandez to apply. We find the Paz court’s reasoning more persuasive.
The Paz court concluded “the public policy rationale of Olsen for rejecting good faith mistake of age in section 288 cases involving victims under age 14 holds true for victims of ages 14 and 15 as well-‘to protect children against harm from amoral and unscrupulous [adults] who prey on the innocent.’ ” (People v. Paz, supra, 80 Cal.App.4th at p. 298.) The Paz court also noted “[t]he courts have regularly refused to extend People v. Hernandez... to section 288 crimes, ” and reiterated the Olsen court’s observation that the analysis that applies to prosecutions for child molestation is “entirely different” from the analysis that applies to statutory rape. (Id. at pp. 300-301.)
Padilla cites no authority that has questioned or criticized the Paz case in the 10 years since it was decided, nor has our independent research uncovered any. Like the Paz court, we reject Padilla’s argument that the rule in Hernandez mandates availability of a mistake of age defense in a case charging lewd acts on a 15 year old by a person at least 10 years older. (People v. Paz, supra, 80 Cal.App.4th at pp. 300-301; cf. People v. Hernandez, supra, 61 Cal.2d at p. 530.)
Padilla also seeks to factually distinguish Paz because the defendant there believed the victim was 16 years old, and if she were, his conduct would have been criminal even if it did not violate section 288, subdivision (c)(1). The Paz court observed in a separate section of its opinion that “even under the most favorable interpretation of the relevant facts” the defendant’s actions could not be construed as “entirely innocent.” (People v. Paz, supra, 80 Cal.App.4th at p. 299.) The court’s comments cannot be reasonably interpreted to limit its explicit holding that the Legislature did not intend to permit a mistake of age defense when it enacted subdivision (c)(1). (Paz, supra, at p. 298.) The trial court correctly concluded Padilla was not entitled to present a mistake of age defense, regardless of how old he allegedly believed his victim to be.
B. Equal Protection Claim Regarding Mistake of Fact Defense
Padilla also contends the court’s refusal to allow the mistake of age defense denied him equal protection of the laws, because such a defense is available to those charged with crimes other than section 288, subdivision (c)(1) that also involve sexual conduct with minors. But Padilla recognizes that “[t]he first prerequisite to establishing a claim under the state and federal equal protection clauses is to show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” He has not shown that he was similarly situated with others charged with sex crimes against children such as unlawful intercourse with a minor (§ 261.5), sodomy with a minor (§ 286), oral copulation with a minor (§ 288a), or molesting a minor (§ 647.6). None of those offenses requires proof that the defendant was at least 10 years older than his or her 14- or 15-year old victim. (See People v. Cavallaro (2009) 178 Cal.App.4th 103, 114-115 [rejecting equal protection challenge to mandatory sex offender registration for persons convicted under § 288, subd. (c)(1), on the basis they are not similarly situated with persons convicted of unlawful intercourse with a minor under § 261.5].)
Padilla supports his argument that he is similarly situated with other child sex offenders with People v. Hofsheier (2006) 37 Cal.4th 1185. In Hofsheier, the Supreme Court held that persons convicted of voluntary oral copulation with 16- or 17-year olds and those convicted of voluntary sexual intercourse with minors of the same age were similarly situated for purposes of mandatory sex offender registration under section 290 where the only difference between the two offenses was the nature of the sexual act. (Hofsheier, supra, at pp. 1200, 1206-1207.) But subsequent cases have held that Hofsheier’s rationale has no effect on defendants convicted under section 288, subdivision (c)(1), because they are “not similarly situated with another group of convicted persons who receive different treatment under the sex offender registration statute.” (People v.Cavallaro, supra, 178 Cal.App.4th at p. 114, citing People v. Anderson (2008) 168 Cal.App.4th 135, 142; People v. Manchel (2008) 163 Cal.App.4th 1108, 1114; see also People v. Alvarado (2010) 187 Cal.App.4th 72, 76-79 [declining to extend Hofsheier to conviction under § 288, subd. (a)]; People v. Kennedy (2009) 180 Cal.App.4th 403, 409-410 [concluding Hofsheier did not extend to defendant convicted of attempted distribution of harmful matter to a minor under § 288.2, subd. (b)].)
The Cavallaro court recognized that Manchel had been criticized for focusing on a charge against the defendant rather than his conviction, but found the reasoning of Manchel “of value” when analyzing the equal protection claim of a defendant convicted under section 288, subdivision (c)(1). (People v. Cavallaro, supra, 178 Cal.App.4th at p. 113.)
The Cavallaro court provided several reasons why a defendant convicted under section 288, subdivision (c)(1) was not similarly situated with a defendant convicted of unlawful intercourse with a minor and thus must register as a sex offender. First, section 288, subdivision (c)(1) includes a specific intent requirement that section 261.5, subdivision (d) does not. “The higher mental state required for a conviction under section 288 is a distinction that is meaningful in deciding whether a person convicted under that statute is similarly situated with one convicted under section 261.5.” (People v. Cavallaro, supra, 178 Cal.App.4th at p. 114.) Second, section 288, subdivision (c)(1) requires the defendant to be at least 10 years older than the victim, and “[t]he Legislature could have properly concluded that it was necessary to specifically prohibit sexual conduct between a 14 or 15 year old and an adult at least 10 years older and to include mandatory sex offender registration based upon a conviction for the offense, because of the potential for predatory behavior resulting from the significant age difference between the adult and the minor.” (Cavallaro, supra, at p. 114.) Third, section 288, subdivision (c)(1) protects younger children than the victim in Hofsheier, and subdivision (c)(1) “ ‘was enacted to make the lewd conduct proscribed by subdivision (a) subject to felony punishment when committed on slightly older victims by considerably older adults, ” reflecting “ ‘a recognition that a “sexually naïve” [citation] child of 14 or 15 could fall victim to a more experienced adult, a vice the Legislature was attuned to and took action to prevent.’ ” (Cavallaro, supra, at pp. 114-115, quoting People v. Paz, supra, 80 Cal.App.4th at p. 297.)
Persons convicted of violating section 288, subdivision (c)(1) are subject to mandatory sex offender registration under section 290, subdivision (c), while persons convicted of violating section 261.5 are subject to discretionary sex offender registration under section 290.006 when the court finds the offense was committed “as a result of sexual compulsion or for the purpose of sexual gratification.” (See People v. Cavallaro, supra, 178 Cal.App.4th at pp. 109-110 & fn. 7.)
Section 288, subdivision (c)(1) requires that the lewd or lascivious act be committed “with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child....” Section 261.5, subdivision (d) provides: “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.”
Padilla seeks to distinguish Cavallaro on the ground that it “did not involve an issue of allowable substantive defenses, ” but he has argued this very issue by saying his claim is analogous to Hofsheier which also did not involve an issue of allowable substantive defenses. We see no reason to reject the approach of the courts that have concluded that defendants convicted of lewd or lascivious conduct with a 14- or 15-year-old by a person at least 10 years older are not similarly situated with defendants convicted of other sexual offenses against minors that do not specify age requirements. Padilla has not shown the disallowance of his mistake of age defense to the charges under section 288, subdivision (c)(1) deprived him of equal protection. (See In re Eric J. (1979) 25 Cal.3d 522, 530, 532.)
Because we conclude Padilla has not shown he was subject to unequal classification with any similarly situated groups, we do not address the parties’ additional arguments regarding whether the rational basis standard of review or strict scrutiny should apply to his equal protection challenge.
C. Equal Protection Claim Regarding Mandatory Registration as a Sex Offender
As discussed in the preceding section of this opinion, section 290 requires that persons convicted of certain sex offenses register as sex offenders for life with the appropriate law enforcement agency. (See People v. Hofsheier, supra, 37 Cal.4th at p. 1192.) “ ‘ “ ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ ” ’ [Citations.] In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures.” (Id. at p. 1196.) The list of designated offenses that require mandatory registration includes lewd or lascivious conduct prohibited by section 288, but not statutory rape of a victim under the age of 16 by a person over the age of 21 as prohibited by section 261.5, subdivision (d). (§ 290, subd. (c).)
For the text of section 261.5, subdivision (d), see footnote 5, ante.
Padilla contends persons convicted under sections 288 and 261.5, subdivision (d) are similarly situated for purposes of section 290’s registration requirements, because both crimes “are aimed at the protection of minors with respect to sexual conduct... [and the differences between the statutory offenses] are insufficient to overcome what is ‘intrinsically the same quality of offense.’ ” Padilla’s argument was implicitly rejected in Cavallaro, as discussed in the preceding section, where we explained at length why we would not extend the reasoning of Hofsheier to persons convicted of violations of section 288, subdivision (c)(1). (People v. Cavallaro, supra, 178 Cal.App.4th at pp. 111-115.)
When it rejected the claim that mandatory registration for people convicted under section 288, subdivision (c)(1) violated equal protection principles, the Cavallaro court noted that “had defendant had sexual intercourse with [the 14- and 15-year-old victims in that case], he would still have been subject to prosecution under section 288(c)(1) for the commission of a lewd act, a crime for which sex offender registration is mandatory.... In Hofsheier, the equal protection analysis hinged on the fact that the defendant-had he engaged in unlawful, nonforcible sexual intercourse with the 16-year-old girl instead of oral copulation-would have under no circumstances been subject to mandatory registration. [Citation.] That is not the case here.” (People v. Cavallaro, supra, 178 Cal.App.4th at p. 115.)
Padilla contends Cavallaro was wrongly decided, but he cites no legal authority that criticizes or disagrees with it. Instead, he relies on cases where the Hofsheier rule barred registration for a defendant convicted of oral copulation with a minor under the age of 16 under section 288a, subdivision (b)(2). (See People v. Luansing (2009) 176 Cal.App.4th 676; People v. Garcia (2008) 161 Cal.App.4th 475; see also People v. Ranscht (2009) 173 Cal.App.4th 1369, 1371 [applying Hofsheier to a conviction for voluntary sexual penetration of a minor under § 289, subd. (h), because “a similarly situated offender convicted of unlawful sexual intercourse with a victim the same age would not face mandatory lifetime registration”].) But we agree with the court in Cavallaro. Such cases do not apply when a defendant was convicted under “an entirely different statute, section 288(c)(1), that has a specific intent requirement not present under section 288a, subdivision (b)(2)[or section 289, subd. (h), and] the crime under which defendant was charged... contained as a distinct element that the offender be at least 10 years older than the 14- or 15-year-old victim.” (People v.Cavallaro, supra, 178 Cal.App.4th at pp. 117-118.) People v. Thompson (2009) 177 Cal.App.4th 1424 is also distinguishable, as it involved a conviction for voluntary sodomy with a 17-year-old minor under section 286, subdivision (b)(1), a statute that requires neither specific intent nor an age differential as specified in section 288, subdivision (c)(1), and where the equal protection violation was conceded by the Attorney General. (Thompson, supra, at p. 1427.)
Section 288a, subdivision (b)(2) provides: “Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony.”
The charges brought against Padilla, and the factual circumstances of his offense, are significantly different than those at issue in Hofsheier and its progeny, and Padilla has not shown that he is similarly situated with persons subject to discretionary rather than mandatory sex offender registration. (See People v.Cavallaro, supra, 178 Cal.App.4th at pp. 113-115; see also People v. Alvarado, supra, 187 Cal.App.4th at pp. 76-79 [distinguishing Hofsheier and rejecting equal protection challenge to mandatory registration for offenders convicted under § 288, subd. (a)].) We reject Padilla’s claim that mandatory registration as a sex offender due to his conviction under section 288, subdivision (c)(1) violates his right to equal protection of the law.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.