Opinion
F074673
10-19-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO RUIZ, Defendant and Appellant.
Hammerschmidt Broughton and Mark A. Broughton for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F15907129)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brant K. Bramer, Commissioner. Hammerschmidt Broughton and Mark A. Broughton for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
Appellant Armando Ruiz pled no contest to one count of possession of child pornography and was sentenced to formal probation. Ruiz was ordered to register pursuant to Penal Code section 290. Ruiz challenges the requirement that he register pursuant to section 290 as a violation of equal protection, contending there is no rational basis to treat misdemeanor noncontact possession offenses the same as contact offenses with minors. He also contends requiring registration under section 290 violates his First Amendment rights, as it is compelled speech. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Because the issues raised by Ruiz in this appeal are legal challenges to section 290, we provide only a brief recitation of facts.
An investigation of distribution of child pornography via peer-to-peer file sharing software disclosed that Ruiz's computer was linked to this network. Pursuant to a search warrant, Ruiz's computer was seized and a video file containing five thumbnail images depicting child pornography was found. Ruiz admitted viewing child pornography files.
On December 2, 2015, a complaint was filed charging Ruiz with one count of possession of child pornography, a violation of section 311.11 subdivision (a). Ruiz pled no contest to possession of child pornography. Prior to sentencing, Ruiz filed a motion seeking to have the trial court declare section 290 unconstitutional, or alternatively, that he not be required to register as a sex offender under section 290. In his motion, Ruiz argued that section 290 was overbroad and violated due process and equal protection.
The charge was reduced to a misdemeanor at the October 19, 2016, sentencing hearing and Ruiz was sentenced to formal probation. Ruiz's motion pertaining to section 290 registration was denied, and he was ordered to register pursuant to section 290.
On November 14, 2016, Ruiz appealed the requirement that he register pursuant to section 290.
DISCUSSION
In this appeal, Ruiz contends section 290 violates equal protection as applied to persons convicted of violations of section 311.11 because no rational basis exists to treat misdemeanor noncontact possession offenses the same as contact offenses with minors. He also contends the section 290 registration requirement constitutes compelled speech in violation of his First Amendment rights. We reject his contentions.
I. First Amendment Challenge
The First Amendment guarantees freedom of speech, a concept that necessarily comprises both what to say and what not to say. (Riley v. National Federation of the Blind of North Carolina, Inc. (1988) 487 U.S. 781, 796-797.) The free speech clause restricts government regulation of private speech; it does not regulate government speech. (See Pleasant Grove City v. Summum (2009) 555 U.S. 460, 467.) The information contained in the state's registry of sex offenders is unquestionably government speech.
We find the analysis in Doe v. Kerry (N.D. Ca. 2016), 2016 WL 5339804 persuasive. In this case, the district court addressed a constitutional challenge to the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Travelling Sex Offenders (IML), codified at 42 U.S.C. 14071, and the Sex Offender Registration and Notification Act (SORNA), codified at 42 U.S.C. § 16901 et seq. Persons coming under the IML and SORNA are required to have a unique identifier on their passports, identifying them as registered sex offenders. The plaintiff challenged this identifier as compelled speech. The district court concluded that to the extent a passport communicates information, it does so on behalf of the government and not the individual. The inclusion of the sex offender identifier on the passport did not constitute compelled speech of the passport holder and did not violate the passport holder's First Amendment rights.
The sex offender registry challenged by Ruiz is created by the state and maintained by the state. To the extent the registry communicates information, it does so on behalf of the state and not the individuals listed in the registry. Moreover, Ruiz's inclusion in the sex offender registry is not a public communication and will not be displayed to the public. Because his offense is classified as a misdemeanor, not a felony, his conviction will not be included in the information available to members of the public. (§ 290.46.) His inclusion in the registry will be known only to law enforcement personnel, as Ruiz himself concedes.
Furthermore, the test of whether the state has violated an individual's right to refrain from speaking is "whether the individual is forced 'to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.' [Citation.]" (Wooley v. Maynard (1977) 430 U.S. 705, 721.) The state's sex offender registry is not advancing any political or ideological point of view with which Ruiz is forced to agree.
Moreover, the state has an "interest in protecting children that justifies restricting free speech." (People v. Gerber (2011) 196 Cal.App.4th 368, 385.) Thus, the state's interest in protecting children justifies any infringement on free speech flowing from mandatory section 290 registration.
Consequently, Ruiz's First Amendment rights are not implicated by his inclusion in the sex offender registry as the registry is government speech, not compelled speech from an individual, and any infringement on Ruiz's constitutional right to freedom of speech is warranted by the state's interest in protecting children.
II. Equal Protection Challenge
Ruiz contends mandatory application of section 290 to those convicted of violating section 311.11 violates equal protection principles because section 311.11 is a noncontact offense, whereas some contact offenses do not require mandatory registration. There is no equal protection violation.
Ruiz seems to base his equal protection argument largely on the premise that a violation of section 311.11, as a noncontact offense, is much less onerous an offense than physical contact with a minor. The Legislature, however, is not required to make all contact offenses of a sexual nature against minors subject to mandatory registration in order to justify a rational basis for including violations of section 311.11 in mandatory registration. The "Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses. [Citations.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887 (Johnson).)
The purpose of section 311.11 is to protect children from sexual exploitation. (People v. Gerber, supra, 196 Cal.App.4th at p. 381.) The Gerber court noted that the legislative history of the section stated, " 'child pornography involves the physical, mental, and sexual abuse, seduction, and harmful exploitation of children.' " It further stated, "[I]t is well documented that collections maintained by pedophiles are used to break down the resistance of children who become victims of sexual abuse. Photos, videos, and other materials, the production of which requires the use of a child, are used to solicit, intimidate and control children; these materials are then used to induce other children to engage in sexual activity.' [Citations.]" (Ibid.)
In Johnson, the California Supreme Court noted that unlawful sexual intercourse with a minor, unlike unlawful oral copulation, carried the potential for pregnancy, which serves as a legitimate basis for differentiating unlawful sexual intercourse and not making it subject to mandatory section 290 registration. Legislative concerns regarding "teen pregnancy, and the support of children conceived" as a result of unlawful sexual intercourse "provide a rational basis for the difference in registration consequences." (Johnson, supra, 60 Cal.4th at p. 889.)
As the legislative history for section 311.11 noted, the creation of child pornography requires the sexual exploitation of a child; and child pornography often is used as a means to induce or coerce other children into sexual activity. (People v. Gerber, supra, 196 Cal.App.4th at p. 381.) The Johnson court held, "rational basis review requires that we respect a statutory disparity supported by a reasonably conceivable state of facts." (Johnson, supra, 60 Cal.4th at p. 889.)
The Johnson court addressed an equal protection argument and found the Legislature had a rational basis for making registration of those convicted of unlawful sexual intercourse with a minor discretionary, while those convicted of oral copulation with a minor were subject to mandatory registration. The rational basis for the differentiated treatment was that intercourse could lead to teen pregnancy and the attendant need to support a child, while oral copulation presented no such risk. (Johnson, supra, 60 Cal.4th at p. 887.)
The appellate court in People v. Gonzalez (2012) 211 Cal.App.4th 132 addressed an equal protection argument of those convicted of violating section 311.11 and those convicted of statutory rape. (Id. at p. 134.) The Gonzalez court noted that the production of child pornography often involved the use of force, fear, or duress against the child to create the child pornography. (Id. at p. 139.) The child pornography is "inherently capable of being copied or duplicated." (Id. at p. 136.) A "single act of possession of child pornography is usually the product of a chain of acts, starting with the creation of the offending image, followed by ... reproduction and transmission of the image, often followed by 'peer-to-peer' reproduction and transmission of the image." (Ibid.) The Gonzalez court held that imposition of mandatory sex offender registration on those convicted of violating section 311.11, but not those convicted of statutory rape, did not violate equal protection, in part because statutory rape is "characteristically voluntary" and "production of child pornography is rarely voluntary" on the part of the child. (Gonzalez, supra, at p. 139.)
The reasonably conceivable state of facts surrounding child pornography are that it always involves the sexual exploitation of a child and potentially is used to solicit and intimidate other children into engaging in sexual activity. (People v. Gerber, supra, 196 Cal.App.4th at p. 381.) The Legislature rationally could decide to require mandatory registration under section 290 of all section 311.11 offenders, while making registration for some contact offenses, such as unlawful sexual intercourse with a minor, subject to discretionary registration. There are legitimate legislative concerns behind the differentiated treatment, such that it does not constitute a constitutionally impermissible denial of equal protection. (Johnson, supra, 60 Cal.4th at p. 887.)
Here, the legislative intent behind section 311.11, coupled with the Legislature's latitude in determining the consequences for criminal behavior, justify mandatory registration for those convicted of violating section 311.11 and such mandatory registration is not an impermissible denial of equal protection.
DISPOSITION
The order requiring Ruiz to register pursuant to section 290 is affirmed.