California Penal Code Section 288a - Interpretation
In People v. Garcia (2008) 161 Cal.App.4th 475, the court extended People v. Hofsheier (2006) to a registration requirement arising from a conviction of nonforcible oral copulation under a different subdivision of section 288a.
In so doing, the court rejected an argument by the People that Hofsheier's equal protection analysis was limited to cases in which the victim was 16 or 17 years old.
The 26-year-old defendant had pled guilty to unlawful intercourse with a minor under section 261.5 and to nonforcible oral copulation under section 288a, subdivision (b)(2), which provides, "Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony."
The victim was 14 years old at the time of the offense. (Garcia, at p. 478.)
The Court of Appeal agreed with the defendant that equal protection precluded a mandatory registration requirement for a violation of section 288a, subdivision (b)(2). (Garcia, supra, 161 Cal.App.4th at p. 482.)
'If there is no rational reason for this disparate treatment between oral copulation and sexual intercourse when the victim is 16 years old, there can be no rational reason for the disparate treatment when the victim is even younger, 14 years old.
Accordingly, Hofsheier applies whether the conviction is under subdivision (b)(2) or (b)(1) of section 288a.'" (Ibid.)