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Name: People v. Hernandez
Case #: B203151
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 09/02/2008

Lifetime registration requirement for defendant convicted of oral copulation with a person under 16 was a violation of equal protection. In 2001, Hernandez entered a plea of no contest to a charge of oral copulation with a person under age 16 (Pen. Code, sec. 288a, subd. (b)(2).) Lifetime registration was ordered under section 290, subdivision (a)(1)(A). In 2007, his motion to terminate the registration requirement was denied. On appeal, he contended that the requirement violated equal protection when applied to the convictions of section 288a, subdivision (b)(2). He argued that the analysis in People v. Hofsheier (2006) 37 Cal.4th 1185, finding that the registration requirement is a denial of equal protection as applied to section 288a, subdivision (b)(1), is equally applicable to (b)(2). There is no logical difference between orally copulating a minor under 18 years and a minor under 16 years. Respondent conceded that issue but argued that the appeal should be dismissed because it challenged the validity of the plea and required a certificate of probable cause. The appellate court reversed and remanded. First, appellant appealed the denial of his motion to terminate the registration requirement on equal protection grounds. He did not seek to retract his plea or challenge its validity. If he prevails, the conviction based on his plea bargain will remain valid. Since he did not challenge the validity of the plea, a certificate of probable cause was not required. Since there was no rational reason for the disparate treatment between the two statutes in Hofsheier, there is no rational reason where the victim is younger.