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Name: People v. Kennedy
Case #: H034021
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/18/2009

Mandatory sex offender registration as a result of a felony conviction for attempt to distribute harmful matter to a minor does not violate equal protection. Appellant entered a plea to attempting to distribute harmful matter to a minor over the Internet. (Pen. Code, §§ 664/288.2, subd. (b).) After the court denied a motion to reduce the offense to a misdemeanor, it placed appellant on probation and ordered him to register as a sex offender. (Pen. Code, § 290.) The court did note that it would have considered not imposing the registration requirement if it had discretion. But, under current law, once the trial court classified the offense as a felony, it had to adhere to the provisions of section 290. (See Pen. Code, § 290, subd. (c).) Appellant argued on appeal that requiring registration for this offense violates equal protection because others who commit felony sex offenses are not required to register. The Court of Appeal rejected the equal protection argument, finding appellant did not make the requisite showing that the requirement affects two similarly situated groups in an unequal manner. The court rejected appellant’s claim that he is similarly situated to persons convicted of section 288a violations. That violation does not contain a specific intent element, whereas the current crime does. The more elevated mental state is a meaningful distinction for this analysis, and so appellant’s equal protection claim fails. (See People v. Anderson (2008) 168 Cal.App.4th 135, People v. Cavallaro (2009) 178 Cal.App.4th 103.)