JOHNSON v. CALIFORNIA DEPARTMENT OF JUSTICEAppellant’s Supplemental Reply BriefCal.January 27, 2014SUPREME COURT COPY MARILEE MARSHALL* & ASSOCIATES, INC. ATTORNEYS AT LAW *CERTIFIED CRIMINAL LAW SPECIALIST AND APPELLATE LAW SPECIALIST THE STATE BAR OF CALIFORNIA BOARD OF LEGAL SPECIALIZATION 523 WEST SIXTH STREET SUITE 1109 LOS ANGELES, CA 90014 (213) 489-7715 mmilegal@sbcglobal.net marileemarshallandassociates.com Christine Aros, Associate Leslie Amaya , Legal Assistant/Paralegal January 16, 2014 SUPREMECOURT Fie Supreme Court of California JAN 3% 2044 350 McAllister Street San Francisco, CA 94102-4797 Frank A. McGuire Clerk Deputy Re: James Richard Johnsonv. California DepartmentofJustice Case No. 8209167 Court ofAppeal Case No. E055194 To the Honorable Chief Justice Tani Cantil-Sakauye, and the Honorable Associate Justices ofthe California Supreme Court: Pursuantto this Court’s letter ofDecember 18, 2013, Petitioner and Appellant, James Johnson (hereinafter “appellant”), submits the followingletter brief, replying to respondent’s supplemental letter brief (hereinafter “RSLB”). Respondent contends:(1) the deferential rational basis test should be used (RSLB at p. 3); (2) there are practical difficulties applying People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) in the trial and appellate courts (RSLB at pp. 3-5); (3) Hofsheier has been extended beyond sex offender registration (RSLB at pp. 5-7); (4) application of Hofsheier should be constrained by its facts and by established equal protection principles (RSLBat pp. 7-9); (5) Hofsheier’s equal protection analysis should not be extended beyond sex offender registration (RSLB at pp. 9-11); and (6) ifHofsheieris overruled, the _ decision should apply retroactively (RSLBat pp. 12-13). Finally, respondent offers reasons to consider overruling Hofsheier. (RSLB at pp. 13-16.) Appellant will address each ofrespondent’s arguments, in turn, below. James Richard Johnson v. California DepartmentofJustice, Case No. 8209167 Appellant’s Letter BriefReply Page 2 of 15 1. Appellant Agrees That The Rational Basis Test Should Be Used Respondentfirst contends that the rational basis test should be used. (RSLBatp. 3.) For the reasons discussed in appellant’s letter brief, appellant agrees that rational basis scrutiny applies. However, appellant maintainsthat there is no rational relationship betweenthe disparity in treatment of similar aged defendants convicted of oral copulation versus sexual intercourse with similar aged minors and somelegitimate government purpose. Respondent does not offer any explanation whatsoever that could provide a rationalbasis forthe classification. Instead, respondent argues that the “more problematic issue” is determining whether two groupsare similarly situated and, if so, whetherthere is a rational basis for distinguishing between them. (RSLBatp.3.) Appellant disagrees that determining whether the two groupsare similarly situated is problematic. On the contrary, appellant believes the determination of whether the two groupsaresimilarly situated is relatively straightforward. In Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, this Court, quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438, held that “[u]nder the equal protection clause, we do not inquire ‘whether personsare similarly situated for all purposes, but ‘whether they are similarly situated for purposesofthe law challenged.’” In the instant case, a person convicted of Penal Code section 288a, subdivision (b)(2), is similarly situated to persons convicted ofPenal Code section 261.5, subdivision (d). The only difference is the prohibited sexual act. The next step is to look at the rationality in the nature of the class singled out. (Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [86 S.Ct. 1497, 16 L.Ed.2d 577].) Appellant maintains that there is no rational basis for requiring mandatory sex offender registration for a defendant convicted of oral copulation, but not for a defendant convicted of sexual intercourse becausethereis no basis for the distinction which requires registration for whatis obviously a lesser offense. Moreover, respondent has not offered any conceivable basis for this distinction. 2. Respondent’s Contention That “Serious Substantive Issues” Remain in The Application ofHofsheier Lacks Merit Respondent contends that the two-step analysis to determine whetherthere are similarly situated classes is “deceptively simple” and is not so simple in practice. (RSLB at p. 3.) First, respondent cites to three cases and states that the first problem is what “criteria should be used to determine the contours of any similarly situated classes.” James Richard Johnson v. California DepartmentofJustice, Case No. 8209167 Appellant’s Letter Brief Reply Page 3 of 15 Respondent contendsthat in People v. Manchel (2008) 163 Cal.App.4th 1108, 1113, the court determined that the defendant wasnotsimilarly situated because he could have been prosecuted under Penal Code section 288, subdivision (c)(1). (RSLBat p. 4.) Appellant maintains that Manchel was wrongly decided. A person convicted of a violation ofPenal Code section 288a, subdivision (b)(2) is not similarly situated with a person convicted of a violation of Penal Code section 288, subdivision (c)(1), as there are different intent requirements, as well as differing age requirements. Respondent notes, without any argument, that in People v. Ranscht (2009) 173 Cal.App.4th 1369, the court found that persons convicted of sexual penetration of a minor in violation of Penal Code section 289, subdivision (h) “could only be compared” with persons convicted of unlawful sexual intercourse in violation of Penal Code section 261.5, even though the victim was under-14 years old. (RSLBat p. 4.) However, again, the court explained that they did not agree with Manchel’s approach of using Penal Code section 288 as a comparison,as it rested “on the erroneous proposition that a person who engages in unlawful sexual intercourse with a minor under section 261.5 necessarily violates section 288, subdivision (a) or subdivision (c)(1) if the minoris less than 14 years old or if the minoris 14 or 15 years old and the offenderis at least 10 years older, respectively” because it overlooked the intent requirement. In Ranscht, the defendant was 18 years old when he digitally penetrated the 12 or 13 year old minor he was romantically involved with. (People v. Ranscht, supra, at p. 1371.) Penal code section 289, subdivision (h), states: “Except as provided in Section 288, any person whoparticipates in an act of sexual penetration with another person whois under 18 years of age shall be punished by imprisonmentin thestate prison or in a county jail for a period of not more than one year.” Penal Code section 261.5, subdivision (c) provides: “Any person who engages in an act of unlawful sexual intercourse with a minor whois more than three years younger than the perpetratoris guilty of either a misdemeanoror a felony, and shall be punished by imprisonmentin a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.” Penal Code section 289, subdivision (h) and Penal Codesection 261.5, subdivision (c) do not have any express specific intent requirements. In contrast, Penal Code 288, subdivision (a) provides: “(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided forin Part 1, upon or with the body, or any part or memberthereof, of a child whois under the age of 14 years, with the intent ofarousing, appealing to, or gratifying the lust, passions, or sexual desires ofthatperson orthe child, is guilty of a felony and shall be punished by JamesRichardJohnson v. California DepartmentofJustice, Case No. S209167 Appellant’s Letter Brief Reply Page 4 of 15 imprisonmentin thestate prison for three, six, or eight years.” Therefore, the Ranscht court wasnot incorrectin finding the defendant similarly situated with a person convicted of a violation of Penal Code section 261.5, rather than a violation of Penal Code section 288. Finally, respondentstates that “[e]ven further afield” was the determination in People v. Ruffin (2011) 200 Cal.App.4th 669, that inmates who commit oral copulation in prisonare similarly situated with guards who commitoral copulation with inmates. (RSLBat p. 4.) Respondent does not explain whythis is “afield.” In Ruffin, the defendant, a prison inmate, pled no contest to oral copulation while confinedin state prison, in violation ofPenal Code section 288a, subdivision (e), whichstates: “Any person whoparticipates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonmentin thestate prison, or in a county jail for a period of not more than one year.” (Pen. Code, § 288a, subd. (e).) The defendant was required to register as a sex offender and arguedit violated equal protection as guards convicted of the sameact under Penal Code section 289.6, subdivision (a)(2) were not required to register. (People v. Ruffin, supra, at p. 673.) The Court cited to equal protection principles laid out in Hofsheier and concluded: “Since section 288a, subdivision (e) and section 289.6, subdivision (a)(2) both criminalize acts of oral copulation with consenting adults in prison, the two groups—prison inmates who commitacts of oral copulation with any consenting adults and prison guards who commitacts of oral copulation with consenting adults whoare prison inmates—“are sufficiently similar to merit application of somelevel of scrutiny to determine whether distinctions between the two groupsjustify the unequal treatment.’” (People v. Ruffin, supra, at p. 673, quoting People v. Hofsheier, supra, 37 Cal.4th at p. 1200.) Appellant fails to see how this represents a problem in determining what constitutes a class. In Ruffin, the act was what madethe class similarly situated and the disparity without any rational basis was requiring inmatesto register as sex offenders for that act, while guards were exempt from that same requirement. In the instant case, the age of the defendant, age ofthe minor, voluntary nature ofthe acts, and intent required, makethe class similarly situated and the disparity without a rational basis is the differing acts. However, as discussed above, under equal protection analysis we look to whetherthe individualsare similarly situated for the purposes of the law challenged. Therefore, there are no, nor should there be, any brightline rules for determining whethera classis similarly situated. Rather, it must be done on a case by James Richard Johnson v. California Department ofJustice, Case No. $209167 Appellant’s Letter Brief Reply Page 5 of 15 case basis, given the specific facts of the case and the law in question. Next, respondentstates that whether any disparity in treatmentis justified was not argued by respondentin this case because Hofsheier had already decided that no such justification existed for oral copulation offenses. (RSLB at pp. 4-5.) It appears that respondent is conceding that there is no rational basis for the disparity in treatment betweenoral copulation and sexual intercourse. Again, as noted above, respondent has not offered any conceivable basis for the disparity. Respondent contends that in People v. Ranscht, supra 173 Cal.App.4th 1369, the court assumed that Hofsheier would apply to sexual penetration offenses and did not examine whether there mightbe a rational basis for disparate treatment. (RSLBat p. 5.) However, an assumption that there would not be a rational basis for the disparate treatment between digital penetration and sexual intercourse, as there had been one between oral copulation and sexual intercourse, is not far fetched. Moreover, respondent does not offer any reason whythat conclusion was incorrect. Respondentcites to People v. Valdez (2009) 174 Cal.App.4th 1528, presumably as. an example ofa case in which the court found there wasa rational basis for disparate treatment, where probation wasprohibited for spousal rape with a foreign object, but not spousal rape. (RSLBat p. 5.) In Valdez, the defendant was convicted,in part, ofraping his spouse with a foreign object, in violation of Penal Code section 289, subdivision (a)(1). The defendant argued that the distinction between penetrating one’s spouse with a penis, for which probation is available, and penetration with any other item, for which probationis not, violated the equal protection clause. (/d. at p. 1531.) The court found the two groupssufficiently similar, but concluded that there was a rational basis for the distinction as the rape could result in the birth of a legitimate child of marriage and prohibiting probation to the parent of a child conceived during marriage was counterproductive to a numberoflegitimate societal goals. (/d. at pp. 1531-1532.) In addition, the court noted that another conceivable rational wasthat “although someacts of rape with a foreign object are accomplished with instruments smaller than a penis, others are not and, thus, the potential for greater violence and injury to the victim rests with that offense.” (/d. at p. 1532.) While respondent cites to Valdez, respondent has not alleged that the possibility ofpregnancy distinguishes voluntary sexual intercourse from voluntary oral copulation, nor does respondentallege a potential for greater violence and injury through oral copulation versus sexualintercourse. James Richard Johnson v. California Department ofJustice, Case No. 209167 Appellant’s Letter BriefReply Page 6 of 15 Moreover, in Hofsheier, the Attorney General acknowledged and this Court seemingly agreed, that “persons who engage in sexualintercourse often also engagein oral copulation.” (People v. Hofsheier, supra, 37 Cal.4th at p. 1205.) Therefore, this Court noted that the “effect of the father’s mandatory registration on the mother and child does not depend on whether the registration is imposed for the act of sexual intercourse or the act of oral copulation.” Therefore, this Court concluded that the argument offered a reason why mandatory registration should not apply to either offense, rather than a reason whyit should only apply to oral copulation. (bid.) 3. Respondent Fails To Support The Argument That Hofsheier Has Been Extended Beyond Sex Offender Registration Respondentfirst cites to People v. Valdez, supra, 174 Cal.App.4th 1538, as “one of several attempts to expand Hofsheier beyond sex offenderregistration.” (RSLB at pp. 5-6.) However, as discussed above, the court found there was no equal protection violation as there wasa rational basis for the disparity in that case. Hence, Hofsheier was not extended. Respondentnext cites to People v. Turnage (2012) 55 Cal.4th 62. In citing to Turnage, respondent contendsthat “this Court addressed a different case where Hofsheier had been extended in unexpected ways.” (RSLBat p. 6.) However, while the lower court had analyzed the case based on the equal protection principles in Hofsheier, this Court did not even mention Hofsheierin it’s opinion. In Turnage, the defendant planted an object resembling a bomb, but having no explosive content, near a government building, causing fear and disruption when it was discovered. The defendant was convicted of violation Penal Code section 148.1, subdivision (d), which allows felony or misdemeanor punishment for anyone who maliciously places a false bomb with the intent to cause another person fear. (/d. at p. 68.) On appeal, the defendant arguedthat his felony conviction denied him equalprotection, as a person convicted ofplacing a weapon of mass destruction with the intent to cause fear, under Penal Code section 11418.1, was only guilty of a misdemeanor and could be punished with a felony only if the conduct caused another person to be in sustained fear. The Third Appellate District agreed with the defendant’s argument and foundthere wasnorationalbasis for the distinction betweenthe two crimes. (/bid.) The Attorney General sought review and this Court concludedthat no equal protection violation occurred as there wasa rational basis for the James Richard Johnson v. California Department ofJustice, Case No. 8209167 Appellant’s Letter BriefReply Page 7 of 15 distinction. This Court found that the Legislature could have reasonably assumed that the public is familiar and afraid of the explosive properties of bombs, and thus,their mere observation or awareness of an object that looks like a bomb was meantto instill fear and wascertain to cause alarm and disorder associated with sustained fear. (/bid.) The court found that the same reasoning does not apply to weapons of mass destruction because weaponsofmass destruction would not necessarily be recognized or cause fear given the breadth and novelty of weapons of mass destruction. Therefore, this Court found that requiring sustained fear for weapons ofmass destruction, but not false bombs, promoted a valid state interest in deterring and punishing societal harm. (/d. at p. 69.) Thus,this Court did not extend Hofsheier, nor did it find Hofsheier crucial or necessary in analyzing an equal protection issue that compared two different statutes. Next, respondentcites to People v. Doyle (2013) 220Cal.App.4th 1251. In Doyle, the defendant was convicted of driving under the influence (DUD) and the conviction was elevated from a misdemeanorto a felony because he had previously been convicted of gross vehicular manslaughter while intoxicated (DUI manslaughter). (/d. at p. 1255.) The defendant was sentenced underthe Three Strikes Law, with the prior DUI manslaughteras oneofhis strikes. On appeal, he argued that allowing the prior DUI manslaughter to elevate his current DUI to a felony andserveas strike, violated equal protection because a person with a prior conviction for second degree murder while driving intoxicated (Watson' murder) did not require that a current DUI be elevated to a felony. (bid.) The court disagreed, finding that persons with prior DUI manslaughter convictions and persons with prior second degree murder convictions were not similarly situated to require similar treatment. (Jbid.) The court noted a DUI manslaughteris committed without malice, while a Watson murder required implied malice. (/d. at p. 1267.) Therefore, the court found that the “critical difference between a DUI manslaughter and a Watson murderis the mental component: malice or conscious disregard for the life of another. A Watson murder, therefore, is more morally blameworthy than DUI manslaughter.” (/bid.) Thus, the court concluded that because a DUI manslaughter and Watson murder were different in culpability, the difference in treatment was permissible. (/bid.) This case highlights why the holding in People v. Manchel, supra, 163 Cal.App.4th 1108, the case respondentprimarily relies on, is incorrect. A person convicted of violating Penal Code section 288a, subdivision (b)(2)is ' People v. Watson (1981) 30 Cal.3d 290. James Richard Johnson v. California Department ofJustice, Case No. $209167 Appellant’s Letter Brief Reply Page 8 of 15 not similarly situated with a person convicted of violating Penal Code section 288, subdivision (c)(1), because of the differing mental components required. Specifically, a violation of Penal Code section 288, subdivision (c) requires “the intent of arousing, appealingto, or gratifying the lust, passions, or sexual desires of that person or the child,” whereas Penal Codesections 288a, subdivision (b)(2) has no such requirement. Hence, again, here, the court did not extend Hofsheier. Respondentalso cites to People v. Schoop (2012) 212 Cal.App.4th 457. In Schoop, the defendant was ordered to register as a sex offenderafter he pled to a violation of possession ofpornography,in violation of Penal Code section 311.11. He later sought a certificate of rehabilitation so he could be relieved of the registration requirement. However, an amendmentafter his conviction lengthened the time period he had to wait before seeking a certificate, and he argued the longer rehabilitation procedure denied him equal protection. (/d. at p. 463.) The defendant noted that Penal Code section 311.1 was similar to other offenses that were listed as exceptions to the longer rehabilitation period. (Id. at pp. 468-469.) The court agreed the offenses were similar and found there was no rational basis for the longer rehabilitation period. In doing so, the court cited to Hofsheier for its general equal protection principles. (/d. at pp. 469-474.) Thus, the court did not extend Hofsheier. Finally, respondent cites to People v. Tirey (2013) 221 Cal.App.4th 549.” In Tirey, the defendant filed a certificate of rehabilitation under Penal Code section Penal Code section 4852.01, to be relieved of sex offender registration. The defendant pled guilty to six counts of Penal Code section 288, subdivision (a), which provides, in part, “any person whowillfully and lewdly commits any lewdorlasciviousact, including any ofthe acts constituting other crimes provided for in Part 1, upon or with the body, or any part or memberthereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, ? A Petition for Rehearing has been granted on the following issue: “Are persons convicted of violating Penal Code section 288.7 alone subject to lifetime parole under Penal Code section 3000.1, subdivision (a)(2) (§ 3000.1 (a)(2))? The analysis of this issue shall include, but need not be limited to, whether: (1) the use of the word “and” between the references to Penal Codesection 269 and Penal Code section 288.7 in § 3000.1 (a)(2) means“or” as argued by the Attorney Generalin the petition for rehearing; or (2) that use of the word “and” in § 3000.1 (a)(2) means “‘and”as discussed in People v. Tuck (2012) 204 Cal.App.4th 724, 740, fn.4 (conc. opn. of Pollak, J.).” James Richard Johnson v. California Department ofJustice, Case No. 8209167 Appellant’s Letter BriefReply Page 9 of 15 is guilty of a felony.” (Jd. at p. 552.) He argued that he should be eligible to obtain a certificate of rehabilitation because offenders convicted ofPenal Code section 288.7 were eligible and similarly situated. (Jbid.) Penal Code section 288.7 provides: “(a) Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child whois 10 years of age or youngeris guilty of a felony and shall be punished by imprisonmentin the state prison for a term of 25 years to life. (b) Any person 18 years of age or older who engagesin oral copulation or sexual penetration, as defined in Section 289, with a child whois 10 years of age or youngeris guilty of a felony and shall be punished by imprisonmentin the state prison for a term of 15 yearsto life.” The Attorney General argued Penal Code section 288, subdivision (a) offenders and Penal Code section 288.7 offenders are not similarly situated because the two crimes involve different victim age ranges and include different intent elements. (/d. at p. 554.) The court foundthat the differing age range could notjustify more severe . treatment for Penal Code section 288, subdivision (a) offenders because it was a lesser offense than Penal Code section 288.7. (People v. Tirey, supra, 221 Cal.App.4th atp. 554.) The court also concludedthat the different intent elements could not justify more severe treatment as one could see the reasoning behindthe specific intent requirement in Penal Code section 288, subdivision (a), which had less overtly sexual conduct (touching on bare skin or through clothes versus sexual intercourse, sodomy,oral copulation or sexualpenetration), which might not be sexualat all, absent the specific intent. (Jbid.) The court distinguished People v. Alvarado (2010) 187 Cal.-App.4th 72 and Peoplev. Cavallaro (2009) 178 Cal.App.4th 103 finding that both cases held Penal Code section 288 offenders are not similarly situated to Penal Code section 261.5, subdivision (d) offenders, largely due to the statutory age disparities between the offenders and their victims, which wasnota factor in Tirey. (People v. Tirey, supra, 221 Cal.App.4th atp. 554.) The Tirey court further noted that Alvarado and Cavallaro also concluded persons convicted ofviolating Penal Code section 288 for conduct whichis involuntary on the part of the victims, are not similarly situated to persons convicted of violating Penal Code section 261.5, subdivision (d) for conduct which is voluntary on the part of the victims. (d. at pp. 254-255.) In addition, the court noted that persons convicted of violating Penal Codesections 288, subdivision (a) and 288.7 were both subject to mandatory registration. (Id. at p. 255.) Therefore, the court concluded that excluding persons convicted of violating Penal Code section 288, subdivision (a) from obtaining a certificate of rehabilitation violated equal protection as it resulted in a “rather startling statutory James RichardJohnson v. California Department ofJustice, Case No. $209167 Appellant’s Letter Brief Reply Page 10 of 15 preferential treatment’” for persons convicted of a more serious crime. (/bid.) Similarly, in the instant case, requiring registration for oral sex, but not sexual intercourse, appearsti result in preferential treatment for a more serious crime. Moreover, Respondentfails to explain how Tirey has expanded Hofsheier. In examining the cases cited by respondent,it is clear that while Hofsheier has been cited for its equal protection principles, it has not lead to any extension beyond sex offenderregistration. Instead, courts are simply using the general equal protection principles laid out in Hofsheier in analyzing whether groupsare similarly situated and whetherthere is a rational basis for the disparity argued in each case. Respondent has failed to explain, how Hofsheier has gone beyondestablished equal protection principles in cases beyond sex offenderregistration. 4, Respondent Fails To Explain Which Facts The Application of Hofsheier Should Be Constrained By And Hence Its Contention Should be Rejected. Respondent notes that in People v. Manchel, supra, 163 Cal.App.4th 1108, the court held that Hofsheier was limited by its own language, which limited cases where registration would be required regardless of the sexual act. Respondent argues that despite this, Hosheier has been extended beyondsex offender registration, and should be limited, otherwise it will apply to more criminal statutes. (RSLB at p. 7.) Respondent contendsthat if, “left unchecked,” Hofsheier will oblige the courts to weigh manyparts of California’s criminal law against each other, looking for variances and disparities, and “every quirk”will be challenged as an equal protection violation. (RSLBat pp. 7-8.) Respondentis mistaken. Similarly situated and rational basis requirements of the equal protection analysis are sufficient gatekeepers to prevent a flood of cases. Moreover, respondenthas done nothing to show that since Hofsheier there has been an increased numberofequal protection challenges or that any such challenges have been frivolous. Respondentstates that the same criminal conductis often covered by more than one statute, but that does not violate the equal protection guarantee. (RSLBatp.8, citing United States v. Batchelder (1979) 442 U.S. 114, 123-125 [9 S.Ct. 2198, 60 L.Ed.2d 755]; People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Appellant does not disagree with this assertion. However, respondentignores the fact that while the same conduct may be covered by more than onestatute, obtaining a conviction under one statute versus another, will undoubtably require proving different elements. Moreover, whenan act violates James Richard Johnson v. California DepartmentofJustice, Case No. S209167 Appellant’s Letter Brief Reply Page 11 of 15 more than one criminal statute, the Government may prosecute undereither so longasit does not discriminate against any class of defendants. (See United States v. Beacon Brass Co. (1952) 344 U.S. 43, 45-46 [73 S.Ct. 77, 97 L.Ed. 61].) 5. Respondent Fails To Show How Hofsheier’s Equal Protection Analysis Has Supplanted Traditional Equal Protection Analysis Respondent contendsthat there is a danger that courts may consider Hofsheier “to have supplanted traditional equal protection analysis. (RSLB at p. 9.) However, respondent does not explain how Hofsheier has supplanted the traditional equal protection analysis. Respondentnotes that in Hofsheier the court found there wasnorationalbasis for requiring sex offenderregistration for oral copulation with a 16 or 17 year old, when intercourse with a minor the same age would not require registration. (RSLB atp. 9.) Respondentthen cites to several cases, as discussed below, however, respondent does not explain whyit is discussing these cases and the relevance ofthe cases to respondent’s claim is unclear. Respondentfirst states that in People v. Ranscht, supra, 173 Cal.App.4that p. 1375, the court did not attempt to determine whether there wasa rational basis between sexual penetration and sexual intercourse. Respondent then argues that in People v. Valdez, supra, 174 Cal.App.4th 1528, however, the court found there wasa rationalbasis for treating the two sexualacts differently. (RSLB at p. 10.) Respondent ignoresthe fact that Ranscht, involved voluntary digital penetration (Pen. Code, § 289, subd. (h)), where as Valdez, involved sexual penetration with a foreign object whenthe act is accomplished against the victim’s will by meansof force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim (Pen. Code, § 289, subd. (a)(1)). Moreover, in Ranscht the comparison was being made between voluntary sexual penetration (Pen. Code, § 289, subd. (h)) and voluntary sexual intercourse (Pen. Code, § 261.5), whereas in Valdez a comparison was being made between spousalrape (Pen. Code, § 262, subd. (a)(1)) and rape with a foreign object (Pen. Code, § 289, subd. (a)(1)). Respondentalso cites to People v. Zavala (2008) 168 Cal.App.4th 772, a case in which the victim was involuntarily sodomized with a hand tool (Pen. Code, § 289, subd. (a)(1)). While respondent notes that while the defendant was acquitted of the sexual penetration charge, the caseillustrates another cause for Legislature concern in distinguishing sexual penetration—namely, the possibility of sexual penetration by items such as “handles of James Richard Johnson v. California Department ofJustice, Case No. $209167 Appellant’s Letter Brief Reply Page 12 of 15 tools or brooms, pipes, etc.” (RSLB at p. 10.) In addition, respondent cites to People v. Morgan (2007) 42 Cal.4th 593, “where the murder victim was sexual penetrated with a sharp, serrated object, possibly a knife or rebar.” Respondent contends that emergency roomshavealso seen cases of foreign objects inserted in rectums andpatients are often loath to explain how they cameto bein that location and thus, the Legislature could have reasonably determined that sexual penetration of a minor is dangerous in ways intercourse is not. Respondent argues that Ranscht did not consider these possibilities and “presumably”“felt that Hofsheier had already made the determinationthatall sex acts are essentially the same for equal protection purposes and that there cannotbe rational basis for distinguishing between them.” (RSLBat p. 11.) Appellant disagrees that the Ranscht court believed that Hofsheier determinedthat all sex acts are the same for equal protection purposes. Rather, it appears the Ranscht court reasonably concludedthat there wasnorational basis to require a defendant convicted of consensual digital penetration to register as a sex offender, where had the same person engaged in consensual intercourse with the same person, they would not have been required to register. Appellant does not contend, nor has any court concluded that Hofsheier held that the Legislature could never validly distinguish between different sex acts. Moreover, appellant fails to see the relevance ofthis discussion or how it supports respondent’s contention that Hofsheier should not be extended beyond sex offender registration. 6. If Hofsheier is Overruled, The Decision Should Not Apply Retroactively Respondentcontends that Hofsheier should apply retroactively because (1) it is not punishment, and (2) it would restore the registration statute to its original state. (RSLBat p. 12.) Appellant acknowledgesthat this Court has held that sex offenderregistration is not a punishment (/n re Alva (2004) 33 Cal.4th 254) and that the requirementthat a person register as a sex offender does not constitute punishment for purposes of ex post facto analysis (People v. Castellanos (1999) 21 Cal.4th 785.) However, respondent ignores considerations of fairness, public policy, and effective administration ofjustice, in determining whether overruling Hofsheier should apply retroactively. This court has held: “ ‘ “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillanceat all times because the Legislature deemed them likely to commit similar offenses in the future.” ’ ” (Un re Alva, supra, 33 Cal.4th at p. 264.) However, since Hofsheier was decided in 2006, courts have undoubtedly exercised discretion under Hofsheier in finding that registration was not required, because it deemed the defendant unlikely to commit similar offenses in the James Richard Johnson v. California Department ofJustice, Case No. S209167 Appellant’s Letter Brief Reply Page 13 of 15 future. Similarly, prosecutors have undoubtedly also exercised discretion in accepting pleas in appropriate cases to charges that do not require registration. Therefore, the purpose ofPenal Code section 290 would not be served by now requiring mandatory registration of these defendants. Moreover, as discussed in appeilant’s letter brief, a retroactive decision overruling Hofsheier would undoubtedly have a drastic effect on both the administration ofjustice, as well as individual defendants, as it would require reopening numerouscases to impose mandatory registration, invalidate numerous settlements where pleas were in good faith negotiated to charges that did not involve mandatory registration, and many of such cases would likely have to proceedto trial. For example, defendants would have grounds to withdraw their pleas if, in making their pleas, they relied on the fact that they would not be facing mandatory registration. Therefore, appellant maintains that based on considerations of fairness, public policy, and administration, ifHofsheier is overruled, the decision should not apply retroactively. 7. Respondent Does Not Offer Any Compelling Reasons For Overruling Hofsheier Respondentstates that this Court should reevaluate Hofsheier and consider whetherit should be clarified and limited, or overruled entirely. Respondent contends that Hofsheier has “muddiedthe waters” regarding the equal protection analysis and it has spread to other areas of criminal law. (RSLB at p. 13.) Respondent further states that the Court may wish to reconsider the determination that requiring registration for voluntary oral copulation with a minorbut not for unlawful sexual intercourse, violates equal protection. Respondent notesthat “[i]f there is a conceivable, rational reason for the distinction between classes, the law must be upheld.” (RSLBat p. 13.) However, again, respondentfails to offer any rational reason for the distinction. Forthe first time, respondent then asserts, that in Hofsheier, the Court declined to apply the “traditional rule” that persons convicted of different crimes are not similarly situated. (RSLBat p. 13.) However, appellant submits that this Court’s conclusion that “there is not and cannot be an absolute rule to this effect, because the decision of the Legislature to distinguish between similar criminalactsis itself a decision subject to equal protection scrutiny” was correctly decided. In Hofsheier, this Court noted: The Equal Protection Clause requires more ofa state law than nondiscriminatory application within the class it establishes. [Citation.] It also imposes a requirement of somerationality in the nature of the class James Richard Johnson v. California Department ofJustice, Case No. $209167 Appellant’s Letter BriefReply Page 14 of 15 singled out. (Rinaldi v. Yeager (1966) 384 U.S. 305, 308-309 [16 L. Ed. 2d 577, 86 S. Ct. 1497]; see People v. Nguyen (1997) 54 Cal.App.4th 705, 714 [63 Cal. Rptr. 2d 173].) Otherwise, the state could arbitrarily discriminate between similarly situated persons simply by classifying their conduct underdifferent criminal statutes. (See Lawrence v. Texas (2003) 539 U.S. 558, 582 [156 L. Ed. 2d 508, 123 S. Ct. 2472] (conc. opn. of O'Connor, J.).) (People v. Hofsheier, supra, 37 Cal.4th at p. 1199, internal quotes omitted.) Finally, while respondentfailed to argue a rational basis and seemingly conceded that a rational basis existed earlier in his letter brief at pages 4-5, on page 16 of the supplementalletter brief, respondent contends, forthefirst time, “[t]he Legislature could rationally have believed that because minors tend to underestimate the potential consequencesof oral copulation, and are therefore more willing to engagein it, those who engagedin oral copulation with minors should register as sex offenders.” (RSLBat p. 16.) To support this contention, respondent argues that “research has shownthat adolescents do not appreciate the risks of oral sex and are consequently more willing to engage in it.” (RSLBat p. 15.) First, respondentcites to a study of 580 ninth graders at two California high schools,self-reporting about their sexual experiences and attitudes regarding oral versus vaginal sex. (Harlpern-Felsher,et al., Oral Versus Vaginal Sex Among Adolescents: Perceptions, Attitudes, and Behavior (April 2005) Pediatric, Vol. 115, No. 4.) Respondentstates that the survey found that adolescents viewedoral sex as being safer and carrying less risks and were more willing to engagein it. (RSLBatp. 15.) Respondentalso cites to a second study of California high school students analyzing the self-reported surveys of 275 adolescents whoreported in engaging in oral and/or vaginal sex. (Brady & Halpernn-Felserh, Adolescent’s Reported Consequences ofHaving Oral Sex Versus Vaginal Sex (Feb. 2007) Pediatrics, Vol. 119, No. 2.) Citing to the study, respondent notes that, “[o]n its own, oral sex presents a smaller degree of risk to children: pregnancyis impossible as a practical matter, and the rate of transmission of sexually- transmitted infections is low. Yet when children engaged in both vaginal and oral sex, the rate ofpregnancy increases notably, and sexually transmitted infections more than double.” (RSLBat p. 16.) In Hofsheier, the Attorney General pointed to various medical reports of increasing oral copulation between adolescents because of the lack of risk ofpregnancy and lesser James Richard Johnson v. California DepartmentofJustice, Case No. S209167 Appellant’s Letter Brief Reply Page 15 of 15 risk of transmitting HIV. This Court noted, that the accounts cited by the Attorney General, “however, discuss sexual conduct between adolescents, not conduct between adolescents and adults, as in this case. The frequency of voluntary oral copulation or voluntary intercourse between adolescents haslittle relevance to the issue here.” (People v. Hofsheier, supra, 37 Cal.4th at pp. 1202-1203.) Similarly, the self-administered surveysfilled out by a few hundred adolescents about their experiences and perceptions regarding sexual conduct between adolescents haslittle relevance here. Respondentnotesthat the state “has a strong interest in protecting minors from adults who might take advantage of them sexually.” (RSLBat p. 17.) However, respondent doesnot explain or provide any evidence of a connection between minors’ underestimation ofpotential consequencesof oral copulation and adults engagingin oral copulation with minors. For example, there is no evidence that adults are using this underestimation to their advantage to entice minors into engaging in oral sex with them. In addition, respondent does not offer any explanation as to why discretionary registration is insufficient to protect societal interests from defendants whom a judge and/or a prosecutor deemslikely to re-offend. For the foregoing reasons, as well as the reasons in Appellant’s Answering Brief on the Merits and Supplemental Letter Brief, appellant asks this Court to affirm the decision of the Fourth Appellate District, Division Two, reversing the trial court’s order denying appellant’s writ ofmandate. Respectfully submitted, MARILEE MARSHALL Attorney for Appellant CERTIFICATE OF COMPLIANCE This brief consists of 6,166 words in 13 point font as counted by the word processing program used to generateit. Dated: January 16, 2014 Respectfully submitted, rade Danfod. MARILEE MARSHALL DECLARATION OF SERVICE BY MAILAND ELECTRONIC SERVICE I, the undersigned, declare: I am over eighteen (18) years of age, and not a party to the within cause; my business address is 523 West Sixth Street, Suite 1109, Los Angeles, CA 90014; that on January 16, 2014, I served a copy of the within: APPELLANT’S LETTER BRIEF REPLY on theinterested parties by placing them in an envelope (or envelopes) addressed respectively as follows: Brent James Schultze San Bernardino District Attorney's Office Mr. Andrew J. Moll Appellate Services Unit, San Bernardino County Public Defender 412 W.Hospitality Lane, First Floor 364 N Mountain View Ave San Bernardino, CA 92415-0042 , San Bernardino, CA 92415 Office of the Attorney General Clerk of the Court P.O. Box 85266 San Bernardino Superior Court San Diego, CA 92186-5266 303 W.Third Street San Bernardino, CA 92415 Appellate Defenders, Inc For Delivery to Hon. David Cohn 555 West Beech Street, Ste 300 San Diego, CA 92101 Clerk of the Court ofAppeal Fourth Appellate District/ Division Two James Richard Johnson 3389 Twelfth Street 1473 Colorado Street Riverside, CA 92501 San Bernardino, CA 92411 Each said envelope was then, on January 16, 2014, sealed and deposited in the United States mail at Los Angeles, California, the county in which I maintain myoffice, with postage fully prepaid. I, further declare that I electronically served a copy of the same above document from electronic notification address (marshall 101046(@gmail.com) on January 16, 2014 to the following entities electronic notification addresses: Appellate Defenders Inc., eservice-criminal@adi-sandiego.com Attorney General, adieservice«@doj.ca.gov ' T additionally declare that I electronically submitted a copy of this documentto the Supreme Court onits website at www.courts.ca.gov in compliance with the court’s Terms of Use, as shown on the website. I declare underpenalty ofperjury that the foregoingis true and correct. Executed on January 16, 2014, at Los Angeles, Cakfornia. ZY LESLIE AMAYA
