Opinion
D071480
12-08-2017
THE PEOPLE, Plaintiff and Respondent, v. WALTER SOLOMON, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD262506) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Walter Solomon was convicted by jury of one count of unlawful sexual penetration with a minor. (Pen. Code, § 289, subd. (h).) Pursuant to the mandatory provisions of section 290, the trial court ordered him to register as a sex offender for life. Relying on the fact that sex offender registration for nonforcible sexual intercourse with a minor is only discretionary and not mandatory, Solomon challenges the registration order as a violation of his equal protection rights. He candidly acknowledges recent California Supreme Court authority holding that discretionary sex offender registration for nonforcible sexual intercourse—but not other acts—does not violate federal or state equal protection rights. Accordingly, we must affirm the judgment.
Further references are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL BACKGROUND
Solomon was a 33 year-old teacher at a high school attended by 17 year-old Michelle S. During Michelle's senior year, she often visited Solomon's classroom where the two would talk about their personal lives and occasionally engage in physical contact such as hand holding and shoulder rubbing. At some point during the year, they began communicating via text message and Instagram.
In May 2015, Michelle and Solomon went to dinner together. After dinner, Solomon drove Michelle home and parked on a nearby street. In the car, Solomon moved his hand inside the waistband of her jeans, which Michelle proceeded to unzip. He rubbed Michelle's clitoris for 10 or 15 minutes. At one point she tried to unzip his pants, but Solomon told her no. Days later, Michelle told her sister what occurred. Michelle's sister reported the incident.
Solomon was charged with one count of unlawful sexual penetration with a person under 18 years of age in violation of section 289, subdivision (h). The first trial resulted in a mistrial, but Solomon was found guilty by jury in a second trial. He was sentenced to 270 days of home detention, three years of probation, and ordered to register as a sex offender for life pursuant to section 290.
DISCUSSION
On appeal, Solomon contends that mandatory sex offender registration violates his federal and state constitutional rights to equal protection. He argues it is irrational that if he had engaged in nonforcible sexual intercourse with Michelle, or nonforcible sexual intercourse and nonforcible sexual penetration, the trial court would have had the discretion not to order registration as a sex offender.
As Solomon concedes, however, this court is bound to follow the Supreme Court's decision in Johnson v. Department of Justice (2015) 60 Cal.4th 871. In Johnson, the court held that requiring mandatory registration in cases of nonintercourse sexual activity with a minor, but allowing discretion to omit any registration requirement in cases of unlawful sexual intercourse, does not violate state or federal equal protection rights under a rational basis review. (Id. at p. 887) The court reasoned that "[a]ctual and plausible legislative concerns regarding recidivism, teen pregnancy, and the support of children conceived as a result of intercourse" provided a rational basis to differentiate the registration consequences for those convicted of unlawful sexual intercourse and those convicted of other forms of nonforcible sexual activity with minors. (Id. at p. 889.) Whatever the merits of Solomon's argument, we are not at liberty to disregard the pronouncements of our high court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore conclude that, as a matter of law, mandatory registration for nonforcible sexual penetration does not violate recognized equal protection principles.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: NARES, Acting P. J. IRION, J.