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Name: People v. Brandao
Case #: A131972
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 02/09/2012

The mandatory sex registration requirement for defendants convicted of misdemeanor annoying or molesting a child (Pen. Code, § 647.6, subd. (a)) does not violate equal protection of the law. Appellant pled guilty to misdemeanor annoying or molesting a child for sending amorous text messages to a 15-year-old girl. (Pen. Code, § 647.6, subd. (a).) On appeal he challenged the mandatory sex registration requirement for that offense (Pen. Code, § 290, subd. (c)) on state and federal equal protection grounds, citing People v. Hofsheier (2006) 37 Cal.4th 1185. Appellant’s case was transferred to the Court of Appeal. In Hofsheier, the mandatory registration requirement for persons convicted of oral copulation with a minor (Pen. Code, § 288b, subd. (b)(1)) was held to violate equal protection because persons convicted of sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)) faced only discretionary registration. The Court of Appeal noted that those cases refusing to extend Hofsheier to other sexual offenses “focused on the dissimilarities between the two classes of offenders, distinguishing” their crimes from Hofsheier-type offenses. While it is true that a violation of section 647.6, subdivision (a) may involve conduct less overtly sexual than other offenses for which registration is discretionary, nonetheless, the defendant’s conduct must have objectively irritated or disturbed a reasonable person “regardless of the defendant’s intent.” This distinguishes the crime from Hofsheier-type offenses. The fact that a section 647.6, subdivision (a) offense is a misdemeanor does not render it less deserving of mandatory registration because “the unique motivational requirement” (an unnatural or abnormal sexual interest or intent with respect to children) sets the statute apart. Thus, those defendants convicted of violating 647.6, subdivision (a) are not similarly situated to defendants convicted of Hofsheier-type offenses.