People v. Crowe CA4/1

Filed 4/29/15 P. v. Crowe CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064862

Plaintiff and Respondent,

v. (Super. Ct. No. SCN315953)

BRYAN CROWE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen

M. Lewis, Judge. Affirmed.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
 I.

INTRODUCTION

A jury convicted Bryan Crowe of one count of a lewd act upon a 14- or 15-year-

old child who was at least 10 years younger than Crowe (Pen. Code, § 288, subd. (c)(1)).

1 The trial court sentenced Crowe to two years in state prison and ordered him to register

as a sex offender under section 290. Crowe contends that (1) there was insufficient

evidence that he acted with the requisite specific intent to support his conviction of

committing a lewd act under section 288, subdivision (c)(1); (2) the trial court

prejudicially erred by giving the jury an incorrect version of CALCRIM No. 350 that

failed to properly instruct the jury regarding how to evaluate evidence of his good

character; (3) mandatory sex offender registration under section 290 for his conviction

under section 288, subdivision (c)(1) violates his rights under the equal protection clause

of the United States Constitution; and (4) the residency restrictions imposed by section

3003.5 should be stricken from his section 290 registration requirement because they

constitute cruel and unusual punishment in violation of the state and federal constitutions.

We affirm.

1 All statutory references are to the Penal Code unless otherwise specified.
2
 II.

FACTS

Prosecution evidence

In February 2013, 14-year-old Karina was living with her 25-year-old brother

Nate, who was her legal guardian, and his wife Chayna. Crowe lived with his wife and

children in the apartment across the hall from Nate's apartment. Karina was friends with

Crowe's 14-year-old stepdaughter, Lindsay, and 12-year-old stepson, Tyler.

On Thursday, February 14, 2013, Nate and Chayna went to Las Vegas for the

weekend and left Karina alone in their apartment. Nate and Chayna told Crowe and his

wife, Dineal, that Karina would be alone in the apartment on Thursday night only. They

had planned for Karina's mother to pick up Karina after school on Friday, but Karina told

her mother that she had to clean the apartment and take care of other things, and arranged

to have her mother pick her up on Saturday. When Dineal found out that Karina was

going to be home alone on Friday night, she gave Lindsay and Tyler permission to spend

the night with Karina in Nate and Chayna's apartment. Crowe and Dineal told the

children that they had to stay inside the apartment, but the children disobeyed.

Around midnight, Crowe ran into Karina in front of her apartment and asked her

where his stepchildren were. Karina pointed to an area beyond a fence on the other side

of the swimming pool. Crowe told Karina to go back inside her apartment and to stay

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inside and not open the door. Karina returned to her apartment and fell asleep on the

couch. She did not go back outside that night.

At approximately 6:00 a.m., Crowe knocked on Karina's apartment door and

Karina let him in the apartment. He told Karina that he was returning a pair of Nate's

shoes that Tyler had been wearing the night before. He put the shoes on the floor and

then sat on the couch. Karina testified that she sat next to Crowe on the couch because

"[i]t only seemed polite." Crowe told Karina that she was in trouble because his wife had

called Nate and told him what Karina and the other children had been doing the previous

night. However, he added that he had not told Nate anything, and said that if Nate asked,

he would tell him that Karina "didn't do those things." Karina told Crowe that she was

"ready to face the consequences with [Nate]."

Crowe and Karina continued to talk on the couch and at some point, Crowe put his

arm around Karina. Karina initially thought that Crowe was "just being a fatherly figure"

and that he was going to give her a hug. However, Crowe started rubbing her right arm

"up and down," and then rubbed her right leg in way that caused the loose fitting

basketball shorts that she was wearing to slide up her leg. Karina became "confused and

scared" because that was "not supposed to happen." Crowe rubbed Karina's arm a second

time and then rubbed her right breast. Karina stood up and crossed her arms because she

felt "uncomfortable" and "weird." She did not want to do anything sexual with Crowe.

She expected Crowe to apologize, but "[h]e acted like it never happened." Crowe stood

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up and said, "Okay. Well, I won't tell your brother." He then left the apartment and

Karina locked the door "[s]o he wouldn't come back."

Karina lay back down on the couch for about 10 minutes and became "intensely

scared" about just having been "touched by an older man." She called her mother to see

what time she was going to pick her up, but did not mention the incident with Crowe.

She then called Nate in Las Vegas and told him what had happened. Nate told her to call

the police, and Karina called 911 immediately after she ended her call to Nate. She told

the 911 dispatcher that Crowe had "tried to touch [her]." She said, "[H]e was like

touching my arms and while he was talking to me and at first I thought he was just trying

to be a father to me, then . . . he touched, like . . . my breast and then . . . I got scared so I

got up . . . ." She told the dispatcher that Crowe had touched her breast over her shirt and

had tried to "put [her] . . . shorts up" by rubbing her leg.

A police officer who contacted Karina in her apartment shortly after the 911 call

testified that Karina was shaking and "had an almost bewildered look on her face." After

Karina told the officer what had happened, the officer contacted Crowe outside his

apartment and arrested him.

A detective interviewed Crowe at the police station at 10:00 a.m. The detective

noticed that his eyes were bloodshot and watery and that his breath had an odor of

alcohol. Crowe told the detective that he had drank 10 to 12 beers and some Fireball

cinnamon whiskey the night before. He initially denied that he had gone to Karina's

apartment that morning, but eventually admitted that he had sat on the couch next to

5
Karina. He said that Karina "leaned up against [him]" and started to "snuggle." He

admitted that he touched and rubbed her breast, and he demonstrated for the detective the

manner in which he had touched her breast by opening and closing his hand in a

squeezing motion. The detective asked, "So like for a split second you were thinking

okay, this is gonna be somethin' sexual but then you caught yourself?" Crowe answered,

"Yeah." The detective asked Crowe if his touching Karina was "like a sexual thing."

Crowe responded, "Yeah, at first." Crowe later told the detective that Karina had "leaned

back on [him]." The detective asked Crowe whether he thought Karina's leaning on him

was "somethin' sexual" or "was just like an affectionate thing." Crowe said he thought it

was "like sexual kinda like . . . ." The detective later asked Crowe if he responded the

way he had because he thought that Karina was coming on to him sexually. Crowe said,

"Yeah."

Defense evidence

Dineal testified that she and Crowe had been together for about 10 years and were

friends with Nate and Chayna. When Dineal and Crowe gave Lindsay and Tyler

permission to stay with Karina the night before the incident, they told them not to leave

Karina's apartment under any circumstances and that they would be checking to make

sure the children were there. Dineal and Crowe then went out for dinner. While they

were out, Crowe drank three 24-ounce beers and some sake. When they returned home,

Crowe continued to drink beer and also drank shots of Fireball. Lindsay and Tyler went

6
to Karina's apartment at around 10:00 p.m. Dineal and Crowe played poker with some

friends until about 1:30 a.m., when Dineal went to bed.

Sometime after Dineal went to bed, Crowe came into the bedroom and told her

that the children were not at Karina's apartment. Crowe and Dineal found the children

outside. Dineal told Lindsay and Tyler to go inside their apartment and said she was

going to call Nate and Chayna to tell them what was going on. Karina cried and begged

Dineal not to tell Nate. Dineal said to Karina, "You're done," and called Nate. She

ultimately spoke to Chayna and told her that Karina was running around the apartments at

1:30 a.m. Dineal went back to bed between 2:30 and 3:00 a.m. Crowe stayed up and

continued to drink beer.

Dineal testified that during her relationship with Crowe, she had seen him interact

with his daughter and other young women and children, and had never seen him engage

in any sexually inappropriate conduct toward children. Shayla Owens, a family friend

from Washington who had known Crowe for 10 years, since she was 11 years old,

testified that she and her younger sister spent most weekends with Crowe and his family,

and that her sister used to babysit for Crowe and Dineal. Owens felt comfortable being

around Crowe and was comfortable with her sister being around him. She did not believe

Crowe was a child molester.

Defense counsel read the testimony of Nate and Chayna from the preliminary

hearing into the record. Chayna testified that Karina began living with her and Nate

about four months before the incident. After Karina moved in, incidents of her lying to

7
them and other behavioral problems occurred with increasing frequency. She was

habitually late to school and had problems with her teachers. Nate and Chayna

disciplined her by taking away her allowance and privileges, grounding her, and cutting

her hair short. Chayna testified that Karina was manipulative and that she had gotten into

arguments with Karina that caused a lot of tension in her and Nate's marriage.

Nate testified that before Karina moved in with him and Chayna, she had lived

with her mother and then with Karina's and Nate's biological father. Nate felt that it

would be best for Karina to move in with him and Chayna because Karina's mother

lacked the means to care for her and their father had been neglectful. Nate and Chayna

had escalating problems with Karina and caught her in numerous lies. Nate testified,

"[Karina] . . . not only came into our house and, like, kind of messed up mine and my

wife's marriage, she also put us through a lot of strain and made me feel bad for her, even

though she was basically lying to me the whole time."

When Karina called Nate on the morning of the incident, she sounded scared and

was crying on the phone, which frightened Nate. Nate told Karina to write down

everything that had happened leading up to when the police arrived after the incident.

III.

DISCUSSION

A. Sufficiency of the evidence to support the conviction

Crowe contends that his conviction of committing a lewd act under section 288,

subdivision (c)(1) must be reversed because the jury's finding that he acted with the

8
requisite specific intent is not supported by substantial evidence. "To determine whether

there is substantial evidence to support a conviction we must view the record in a light

most favorable to conviction, resolving all conflicts in the evidence and drawing all

reasonable inferences in support of conviction. We may conclude that there is no

substantial evidence in support of conviction only if it can be said that on the evidence

presented no reasonable fact finder could find the defendant to be guilty on the theory

presented." (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529, citing People v.

Johnson (1980) 26 Cal.3d 557, 578.)

A violation of section 288, subdivision (c)(1) is a specific intent crime. Section

288, subdivision (a) provides: "[A]ny person who willfully and lewdly commits any

lewd or lascivious act . . . upon or with the body, or any part or member thereof, 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, is guilty of a

felony . . . ." (Italics added.) Section 288, subdivision (c)(1), provides: "Any person

who commits an act described in subdivision (a) with the intent described in that

subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years

older than the child, is guilty of a public offense and shall be punished by imprisonment

in the state prison for one, two, or three years, or by imprisonment in a county jail for not

more than one year."

"[S]ection 288 prohibits all forms of sexually motivated contact with an underage

child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually

9
exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the

perpetrator in touching the child is the controlling factor and each case is to be examined

in the light of the intent with which the act was done. . . . If [the] intent of the act,

although it may have the outward appearance of innocence, is to arouse . . . the lust, the

passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the

statute . . . .' [Citation.]" (People v. Martinez (1995) 11 Cal.4th 434, 444.) " '[T]he trier

of fact looks to all the circumstances, including the charged act, to determine whether it

was performed with the required specific intent.' [Citations.] Other relevant factors can

include the defendant's extrajudicial statements . . . , the relationship of the parties

[citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or

avoid detection [citation]." (Id. at p. 445.)

We conclude that Crowe's conviction is supported by substantial evidence that he

touched Karina's arm, leg, and breast with the specific intent of arousing, appealing to, or

gratifying his or Karina's lust, passions, or sexual desires. It is undisputed that the

incident occurred after Crowe entered Karina's apartment at approximately 6:00 a.m.,

when he knew she was alone in the apartment. Karina testified at trial that Crowe rubbed

her right leg in a way that caused the shorts that she was wearing to slide up her leg, and

she told the 911 dispatcher that Crowe tried to "put [her] . . . shorts up." She told the 911

dispatcher that she got up from the couch because she became "scared" when Crowe

touched her breast, and she testified that she became "confused and scared" because that

was "not supposed to happen." Karina's trial testimony and her statements to the 911

10
dispatcher that Crowe touched her in ways that made her feel uncomfortable and afraid

support a reasonable inference that Crowe touched her with sexual intent.

Further, Crowe admitted to the detective who interviewed him on the morning of

the incident that he squeezed Karina's breast with the thought that, in the detective's

words, "this is gonna be somethin' sexual." When the detective again asked Crowe if his

touching Karina was a "sexual thing," Crowe answered, "Yeah, at first." Crowe told the

detective that Karina leaned on him in a way that was more sexual than affectionate, and

that he thought she was coming on to him. Crowe's admissions to the detective that he

touched Karina's breast with the thought that he and Karina both wanted a sexual

encounter constitute overwhelming evidence that he touched Karina with the requisite

sexual intent for a conviction under section 288, subdivision (c)(1).

B. Adequacy of the jury instruction regarding evidence of Crowe's good character

Crowe contends that trial court committed prejudicial error by instructing the jury

with the version of CALCRIM No. 3502 that the prosecution requested instead of

2 CALCRIM No. 350 provides: "You have heard character testimony that the
defendant (is a __________ < insert character trait relevant to crime[s] committed >
person/ [or] has a good reputation for _____________ < insert character trait relevant to
crime[s] committed > in the community where (he/she) lives or works). [¶] Evidence of
the defendant's character for _____________ < insert character trait relevant to crime[s]
committed > can by itself create a reasonable doubt [whether the defendant committed
_____________ < insert name[s]of alleged offense[s] and count[s], e.g. battery, as
charged in Count 1 >]. However, evidence of the defendant's good character may be
countered by evidence of (his/her) bad character for the same trait. You must decide the
meaning and importance of the character evidence. [¶] [If the defendant's character for
certain traits has not been discussed among those who know (him/her), you may assume
that (his/her) character for those traits is good.] [¶] You may take that testimony into
11
instructing the jury with the version that he requested. Crowe argues that the version of

CALCRIM No. 350 that the court gave failed to properly instruct the jury regarding how

to evaluate evidence of his good character.

Crowe requested the following version of CALCRIM No. 350: "You have heard

testimony that the defendant is not a child molester. [¶] Evidence of the defendant's

character can by itself raise a reasonable doubt whether the defendant committed a Lewd

or Lascivious Act on a Child or and Attempted Lewd and Lascivious Act on a Child. [¶]

You must decide the meaning and importance of the character evidence. [¶] Consider

the testimony along with all the other evidence in deciding whether the People have

proved that the defendant is guilty beyond a reasonable doubt."

The prosecution requested, and the court gave, the following version of

CALCRIM No. 350: "You have heard character testimony that the defendant does not

have the character for sexual deviancy. [¶] Evidence of the defendant's character for

sexual deviancy can by itself create a reasonable doubt whether the defendant committed

a Lewd and Lascivious Act on a child 14 or 15 years old as charged in Count One.[3]

However, evidence of the defendant's good character may be countered by evidence of

his bad character for the same trait. You must decide the meaning and importance of the

consideration along with all the other evidence in deciding whether the People have
proved that the defendant is guilty beyond a reasonable doubt."
3 The People submit that "[i]t can be reasonably presumed that the second line of
the jury instruction contains a clerical error by omitting the words 'lack of.' It should
have read: 'Evidence of the defendant's lack of character for sexual deviancy can by itself
create a reasonable doubt . . . .' " (First italics added.)
12
character evidence. [¶] You may take that testimony into consideration along with the

other evidence in deciding whether the People have proved that the defendant is guilty

beyond a reasonable doubt."

Crowe's counsel objected to the statement in the prosecution's version of

CALCRIM No. 350 that "evidence of the defendant's good character may be countered

by evidence of his bad character for the same trait." Crowe's counsel argued that the

statement was inappropriate because the prosecution had not presented any evidence of

Crowe's bad character at trial. The prosecution argued in response that "the evidence in

this case can establish contrary character." Crowe's counsel responded that it was

inappropriate to view evidence of the present offense as evidence of bad character

because "character evidence by its very nature is things about the person's past . . . ."

On appeal, Crowe contends that the statement in the instruction that his "character

for sexual deviancy can by itself create a reasonable doubt" was erroneous and failed to

properly instruct the jury as to how to evaluate and apply the good character evidence.

Crowe argues that "[t]he result of the instruction as given to the jury was that the good

character evidence was no longer sufficient in itself to create a reasonable doubt."

Although read in isolation, the portion of the instruction stating that "[e]vidence of the

defendant's character for sexual deviancy can by itself create a reasonable doubt whether

the defendant committed [the charged offense]" (italics added) did not apprise the jury

that evidence of Crowe's lack of character for sexual deviancy could by itself create a

reasonable doubt, that meaning is reasonably clear from the preceding sentence, which

13
states: "You have heard character testimony that the defendant does not have the

character for sexual deviancy."

Crowe further argues on appeal, as he did in the trial court, that the phrase

"evidence of the defendant's good character may be countered by evidence of his bad

character for the same trait" should have been deleted from the instruction because the

People did not present any evidence of his bad character (i.e., character for sexual

deviancy) other than the evidence of his conduct relating to the charged crime. Crowe

maintains that evidence of the charged crime is not evidence of bad character, and that

allowing the jury to consider it as such "violated the prohibition against [presenting

evidence of bad character] and eviscerated [his] due process right to have the jury decide

each element of the charged offense beyond a reasonable doubt."

"A trial court may instruct on a theory only if it is supported by 'substantial

evidence.' [Citation.] We review the trial court's assessment de novo." (People v.

Quiroz (2013) 215 Cal.App.4th 65, 76.) If a jury instruction challenged on appeal is

ambiguous, we consider whether it is reasonably likely the jury misunderstood and

misapplied the instruction. (People v. Young (2005) 34 Cal.4th 1149, 1202.) The

correctness of jury instructions is determined from the entire charge of the court [or

instructions as a whole] rather than from a particular instruction or parts of an instruction.

(Ibid.) In assessing the probable effect of the instruction on the jury, the reviewing court

must also consider whether the arguments of counsel diminished any possible confusion

14
about the challenged instruction or reinforced the correct view of the law stated in the

instruction. (Ibid.)

We conclude that there was no evidentiary basis to instruct the jury that "evidence

of the defendant's good character may be countered by evidence of his bad character for

the same trait." The prosecution did not introduce evidence that Crowe had a character

for sexual deviancy other than the evidence relating to the charged offense. Character

evidence in the form of evidence of specific acts is either evidence of past acts—i.e., acts

that predate the charged offense—or, in some cases, subsequent acts. (See People v.

Myers (2007) 148 Cal.App.4th 546, 552-553 [Evidence Code section 1103 regarding

character evidence of crime victim to prove conduct "contemplates that character

evidence comprises something other than evidence of conduct at the time in question,

because character evidence is used to show the person acted 'in conformity with' his or

her character."]; People v. Balcom (1994) 7 Cal.4th 414, 421 [evidence that defendant

committed rape and robbery after the charged offense was admissible to show common

design or plan].) The People have not cited, and we have been unable to find, any

authority supporting the proposition that evidence relating to a charged offense qualifies

as evidence of bad character for the purpose of instructing the jury under CALCRIM 350

that evidence of the defendant's good character may be countered by evidence of his bad

character for the same trait. Viewing the evidence of the charged offense as character

evidence is inappropriate because the charged act has yet to be proved.

15
 Moreover, character evidence in the form of specific acts is generally inadmissible

to counter character evidence in the form of opinion or reputation. As Crowe and the

People both recognize in their briefs, CALCRIM No. 350 is largely based on Evidence

Code section 1102, which provides: "In a criminal action, evidence of the defendant's

character or a trait of his character in the form of an opinion or evidence of his reputation

is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the

defendant to prove his conduct in conformity with such character or trait of character. [¶]

(b) Offered by the prosecution to rebut evidence adduced by the defendant under

subdivision (a)." (Italics added.)

As noted in the Law Revision Commission comments to Evidence Code section

1102, "it is usually held that evidence of specific acts by the defendant is inadmissible to

prove his guilt even though the defendant has opened the question by introducing

evidence of his good character. . . . [¶] Section 1102 codifies the general rule under

existing law which precludes evidence of specific acts of the defendant to prove character

as circumstantial evidence of his innocence or of his disposition to commit the crime with

which he is charged." (Cal. Law Revision Com. com., 29B, pt. 3B, West's Ann. Evid.

Code (2009 ed.) foll. § 1102, p. 312, italics added.) The California Supreme Court in

People v. Wagner (1975) 13 Cal.3d 612, 619 stated, "As the Law Revision Commission's

comments to section 1102 make clear, evidence of specific acts of the accused are, as a

general rule, inadmissible to prove his disposition to commit such acts (see also Evid.

Code, § 1101); this general rule is applicable 'even though the defendant has opened the

16
question by introducing evidence of his good character.' " (See People v. Gin Shue

(1943) 58 Cal.App.2d 625, 634 [in questioning a witness called to testify about the

defendant's reputation, neither the prosecution nor defense may inquire into the

defendant's general misconduct; questioning is limited to the defendant's reputation and

the credibility of the witness]; People v. Cordray (1962) 209 Cal.App.2d 425, 439-440

[defendant may not use specific acts to establish his good character].)

In sum, the trial court erred in instructing the jury that "evidence of the defendant's

good character may be countered by evidence of his bad character for the same trait,"

because the prosecution did not present any opinion or reputation evidence to counter

Crowe's evidence of his good character. Rather, the prosecution requested that portion of

CALCRIM No. 350 based solely on evidence of the charged offense. Evidence relating

to the charged offense does not support an instruction that evidence of good character

may be countered by evidence of bad character for two reasons: (1) evidence of the

charged offense is specific-act evidence, which is generally inadmissible to counter

evidence of reputation or opinion evidence as to character; and (2) to the extent that

evidence of specific acts is ever admissible as character evidence, it does not include

evidence of the charged offense.

Although the trial court erred in giving the jury the version of CALCRIM No. 350

that the prosecution requested, we conclude that the error was harmless. Error in giving

an instruction that is a correct statement of law but has no application to the facts of the

case is an error of state law subject to the harmless error test set forth in People v. Watson

17
(1956) 46 Cal.2d 818, 836 (Watson). (People v. Guiton (1993) 4 Cal.4th 1116, 1129-

1130.) "Under Watson, reversal is required if it is reasonably probable the result would

have been more favorable to the defendant had the error not occurred." (People v.

Guiton, supra, at p. 1130.) We conclude that in light of the overwhelming evidence that

Crowe is guilty of the charged offense, particularly his admissions to the police that he

touched Karina's breast with the thought that he and Karina both wanted a sexual

encounter, it is not reasonably probable that he would have obtained a more favorable

outcome at trial if the court had not included the statement that "evidence of the

defendant's good character may be countered by evidence of his bad character for the

same trait" in the version of CALCRIM No. 350 that it gave the jury.

C. Constitutionality of mandatory sex offender registration for violation of section
288, subdivision (c)(1)

Crowe contends that mandatory sex offender registration under section 290 for his

conviction under section 288, subdivision (c)(1) violates his rights under the equal

protection clause of the United States Constitution because a person convicted of

unlawful sexual intercourse with a minor under the age of 16, in violation of section

261.5, subdivision (d),4 is similarly situated but is not subject to the same registration

requirement. "Where, as here, a disputed statutory disparity implicates no suspect class

4 Section 261.5, subdivision (d) provides: "Any person 21 years of age or older
who engages in an act of unlawful sexual intercourse with a minor who is under 16 years
of age is guilty of either a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years."
18
or fundamental right, 'equal protection of the law is denied only where there is no

"rational relationship between the disparity of treatment and some legitimate

governmental purpose." ' [Citations.] 'This standard of rationality does not depend upon

whether lawmakers ever actually articulated the purpose they sought to achieve. Nor

must the underlying rationale be empirically substantiated. [Citation.] While the realities

of the subject matter cannot be completely ignored [citation], a court may engage in

" 'rational speculation' " as to the justifications for the legislative choice [citation]. It is

immaterial for rational basis review "whether or not" any such speculation has "a

foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a

party must ' "[negate] every conceivable basis" ' that might support the disputed statutory

disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-

guess its ' "wisdom, fairness, or logic." ' [Citation.]" (Johnson v. Department of Justice

(2015) 60 Cal.4th 871, 881 (Johnson).)

Crowe's equal protection argument rests entirely on People v. Hofsheier (2006) 37

Cal.4th 1185 (Hofsheier) and Court of Appeal decisions that followed its reasoning. The

California Supreme Court in Hofsheier decided that imposing mandatory sex offender

registration under section 290 on a 22-year-old defendant convicted of nonforcible oral

copulation of a 16-year-old girl in violation of section 288a, subdivision (b)(1) violated

the defendant's constitutional right to equal protection under the law because a person

convicted of unlawful sexual intercourse with a minor in violation of section 261.5 was

not subject to mandatory registration. (Hofsheier, supra, at pp. 1192-1193.) However, in

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Johnson, the California Supreme Court overruled Hofsheier and disapproved the Court of

Appeal decisions that followed it. (Johnson, supra, 60 Cal.4th at p. 888.)

The Johnson court noted that "[a]mong the various sex offenses, unlawful sexual

intercourse is unique in its potential to result in pregnancy and parenthood. The act of

intercourse, by itself, nearly always carries this potential, while engaging in oral

copulation or other nonintercourse sexual activity, by itself, never does. Given the

potential life-altering consequences of intercourse, it may seem, at first blush, anomalous

that section 261.5 is one of the only—if not the only—offenses proscribing sexual contact

with a minor that is subject to discretionary, as opposed to mandatory, registration.

(§ 290.006.)

"Though section 261.5 violations may seem just as deserving of mandatory

registration as nonforcible oral copulation offenses, the legislative history of section

261.5 dispels any notion that confining the availability of discretionary registration to

intercourse offenders has no rational basis. The 1970 legislation that separated the

offenses of rape and unlawful sexual intercourse with a female under age 18—by moving

the latter from the general rape statute (§ 261) to section 261.5—originated with the State

Bar of California. [Citation.] In an analysis of that legislation, the State Bar's legislative

representative explained: 'When there are consenting near-adults involved, but for some

reason the girl's parents or the Social Welfare Department wants to force the boy to

support the child, it is unrealistic to have the connotation of "rape" attached to his crime.

Many private [employers] do not differentiate between "statutory rape" and "forcible

20
rape," and refuse to hire a "rapist." As a result, the capacity to earn money to support a

child is severely handicapped. This bill merely seeks to eliminate this social stigma.'

[Citation.] Thus, in separating and renaming the offense of unlawful sexual intercourse,

the Legislature sought to eliminate, for section 261.5 offenses, the social stigma

associated with the rape label so that offenders could more readily obtain employment

and support children conceived as a result of such intercourse. [Citations.] This history

confirms that the potential for pregnancy and parenthood has, in fact, influenced

legislative decisionmaking regarding unlawful intercourse with minors." (Johnson,

supra, 60 Cal.4th at p. 884, fn. omitted.)

The Johnson court further noted that the high teenage pregnancy rate resulting

from illicit sex between teenage or younger girls and adult males, many of whom are

repeat offenders who have fathered multiple children by different teenage mothers and

accept little or no responsibility for the support of their children, costs the state billions of

dollars in welfare and healthcare expenses to assist families headed by teenagers.

(Johnson, supra, 60 Cal.4th at p. 886.) Consequently, "the Legislature amended section

261.5 to subject adults convicted of sexual intercourse with minors to graduated civil

penalties (ranging from $2,000 to $25,000), based on the age difference between the

minor victim and the adult offender. (§ 261.5, subd. (e)(1).) Any amounts so recovered

must be applied toward recouping the costs in pursuing the penalties, with the remainder

deposited in the Underage Pregnancy Prevention Fund. (§ 261.5, subd. (e)(2).) These

21
civil penalties are not applicable to persons convicted of offenses involving sexual

contact other than intercourse with minor victims.

"Hence, the very real problem of teen pregnancy and its costly consequences, as

well as legislative concern that stigmatization might interfere with employment

opportunities and the support of children conceived as a result of unlawful intercourse,

offer more than just plausible bases for treating section 261.5 offenders differently than

other types of sex offenders. Providing for discretion in section 261.5 cases allows the

trial court to order registration in appropriate situations, while maintaining flexibility in

those cases where, for instance, registration might cause economic or other hardship to a

child born to the minor victim and the adult offender." (Johnson, supra, 60 Cal.4th at pp.

885-886.)

The Johnson court also noted that the Legislature had considered and ultimately

rejected statutory amendments that would have imposed mandatory registration for

section 261.5 offenders at least three times. (Johnson, supra, 60 Cal.4th at p. 886.) The

Johnson court reasoned that "[b]ecause the Legislature has acted purposefully and

consistently to preserve discretionary sex offender registration for section 261.5

offenders, we may reasonably infer its public policy concerns would not be served by

mandating registration for such offenders in order to cure the constitutional infirmity

found by Hofsheier. (Ibid.)

Finally, the Johnson court reasoned that " '[w]hen conducting rational basis

review, we must accept any gross generalizations and rough accommodations that the

22
Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational

simply because there is an "imperfect fit between means and ends" ' [citations], or

'because it may be "to some extent both underinclusive and overinclusive" ' [citations].

Consequently, any plausible reason for distinguishing between oral copulation and

intercourse for purposes of mandatory registration need not exist in every scenario in

which the statutes might apply. It is sufficient that the oral copulation activity prohibited

by section 288a[, subdivision] (b) lacks the same inherent capacity to cause pregnancy as

the sexual intercourse activity prohibited by section 261.5. [¶] At bottom, the

Legislature is afforded considerable latitude in defining and setting the consequences of

criminal offenses. [Citations.] In light of the legitimate purposes of sex offender

registration, and the plausible and actual legislative concerns noted above, it cannot be

said that the differentiated treatment of section 261.5 and section 288a offenders 'so

lack[s] rationality' that it constitutes 'a constitutionally impermissible denial of equal

protection.' [Citation.]" (Johnson, supra, 60 Cal.4th at p. 887.)

The reasoning in Johnson as to why mandatory registration for a violation of

section 288a, subdivision (b)(1), does not violate equal protection applies with equal

force to mandatory registration for a violation of section 288, subdivision (c)(1).5

Accordingly, we reject Crowe's equal protection challenge.

5 We also agree with the reasoning of the Court of Appeal in People v. Cavallaro
(2009) 178 Cal.App.4th 103, 114 (Cavallaro), which rejected the same equal protection
argument that Crowe makes in this case—i.e., that mandatory registration on a conviction
of violating section 288, subdivision (c)(1) violated equal protection because a person
23
D. Constitutionality of the residency restrictions imposed by section 3003.5

Crowe contends that the residency restrictions imposed by section 3003.5,

subdivision (b) should be stricken from his section 290 registration requirement because

they constitute cruel and unusual punishment in violation of the state and federal

Constitutions.6 We reject that contention in light of People v. Mosley (2015) 60 Cal.4th

convicted of unlawful, nonforcible sexual intercourse with a minor under the age of 16 in
violation of section 261.5, subdivision (d) would not be subject to mandatory registration.
(Cavallaro, supra, at p. 111.) The Cavallaro court rejected the defendant's equal
protection challenge for four reasons: (1) section 288, subdivision (c)(1) includes a
specific intent requirement and section 265.1, subdivision (d) does not; (2) there is a
threshold age requirement for an offender under section 288, subdivision (c)(1) (the
defendant must be at least 10 years older than the minor victim) that is not present under
section 261.5, indicating that the Legislature may have concluded that it was necessary to
require mandatory registration for the former offense because of the potential for
predatory conduct related to the significant age difference between the adult and the
minor; (3) Hofsheier is distinguishable because the age difference between a victim under
section 288, subdivision (c)(1) (14 or 15) and the victim in Hofsheier (16), in addition to
the age span between the victim and the defendant under section 288, subdivision (c)(1),
reflect a legislative intent to protect sexually naïve 14- and 15-year-olds from predatory
older adults; and (4) "a person who engages in sexual intercourse with a 14 or 15 year old
and who is also at least 10 years older than the minor may be convicted of a lewd or
lascivious act under section 288[, subdivision] (c)(1)." (Cavallaro, supra, at pp. 114-
115.) In contrast, if the 22-year-old-defendant in Hofsheier had engaged in unlawful,
nonforcible sexual intercourse with the 16-year-old victim instead of oral copulation, he
would not have been subject to mandatory registration. (Id. at p. 115.)

6 Crowe raises a facial challenge to section 3003.5, subdivision (b); he does not
contend that the statute's residency restrictions are unconstitutional as applied. In In re
Taylor (2015) 60 Cal.4th 1019 (Taylor), paroled registered sex offenders challenged the
residency restrictions of section 3003.5, subdivision (b) as applied to them, and the
California Supreme Court held that the restrictions are unconstitutional as applied to
paroled registered sex offenders in San Diego County. (Taylor, supra, at p. 1023.) The
petitioners in Taylor did not challenge the residency restrictions as constituting cruel and
unusual punishment in violation of the state and federal Constitutions; rather, they alleged
that the residency restrictions violated "their fundamental constitutional rights to
24
1044, in which the California Supreme Court concluded that the residency restrictions

under section 3003.5 do not constitute punishment.

The California voters enacted Proposition 83, the Sexual Predator Punishment and

Control Act, also known as Jessica's Law, in November 2006. (In re E.J. (2010) 47

Cal.4th 1258, 1263.) Proposition 83 added subdivision (b) to section 3003.5, which sets

forth restrictions on where certain sex offenders subject to the lifetime registration

requirement of section 290 may reside. (In re E.J., supra, at p. 1263.) Section 3003.5,

subdivision (b) provides: "Notwithstanding any other provision of law, it is unlawful for

any person for whom registration is required pursuant to Section 290 to reside within

2000 feet of any public or private school, or park where children regularly gather."

Crowe argues that section 3003.5, subdivision (b) is punitive because the Legislature

intended it to constitute punishment and its residency restrictions have a punitive effect.

In Mosley, the California Supreme Court considered whether the residency

restrictions of Jessica's Law increased the penalty for a crime under the reasoning of

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), in which the United States

Supreme Court "held that the Sixth Amendment generally requires a jury to find 'any fact

intrastate travel, to establish and maintain a home, and to privacy and free association
with others within one's home; and further effectively 'banish[]' them from establishing
homes or residing anywhere in the county." (Taylor, supra, at p. 1036.) Although it is
unclear from Taylor which specific constitutional provisions the residency restrictions
allegedly violated, after noting the petitioners' allegations, the Taylor court stated: "The
Fourteenth Amendment's due process clause ' "forbids the government to
infringe . . . 'fundamental' liberty interests" ' in any manner ' "unless the infringement is
narrowly tailored to serve a compelling state interest [i.e., strict scrutiny review]." '
[Citations.]" (Taylor, supra, at p. 1036.)
25
that increases the penalty for a crime beyond the prescribed statutory maximum.' "

(Mosley, supra, 60 Cal.4th at p. 1038, quoting Apprendi, supra, 530 U.S. at p. 490, italics

added by Mosley.) The Mosley court decided that if "a judge makes the findings

underlying his or her discretionary order that a convicted criminal defendant must register

as a sex offender, . . . the order [is not] invalid under Apprendi insofar as it includes

registered sex offender residency restrictions imposed by Proposition 83 . . . ." (Mosley,

supra, at p. 1048.)

The Mosley court rejected the defendant's contention, and the Court of Appeal's

conclusion, that the residency restrictions of Jessica's Law are punitive. The Mosley

court explained that " the residency restrictions of Jessica's Law are not, on their face, an

added 'penalty' for [the defendant's] conviction to which Apprendi applies. Like sex

offender registration requirements, the restrictions are not intended as punishment or

retribution for the offense or offenses that led to their imposition. Rather, their purpose is

to serve a legitimate regulatory goal—reducing the opportunity for persons convicted of

sexually related crimes, who are at large in the community but still deemed dangerous, to

reoffend in the future. The restrictions may lead to significant disabilities in individual

cases, but in the abstract, they do not so resemble traditional forms of punishment, and

are not so clearly punitive in effect, as to override their regulatory aim." (Mosley, supra,

60 Cal.4th at p. 1062.)

The Mosley court's analysis was guided by factors identified in Smith v. Doe

(2003) 538 U.S. 84 (Smith) "as relevant to determining whether attempts to control

26
dangerous sex criminals constitute punishment." (Mosley, supra, 60 Cal.4th at p. 1063.)

The court began "with the settled principle that in the interest of protecting public safety,

'an imposition of restrictive measures on sex offenders adjudged to be dangerous is "a

legitimate nonpunitive governmental objective and has been historically so regarded."

[Citation.]' [Citation.] At the outset, therefore, the inquiry is whether the state legislative

authority, in adopting a law allowing a court to impose such restrictions, intended them as

punishment, or instead meant to adopt a nonpunitive regulatory scheme." (Ibid., citing

Smith, supra, at pp. 92, 93.)

If the intent was to enact a civil, nonpunitive regulatory scheme, the court " 'must

further examine whether the . . . scheme is " 'so punitive either in purpose or effect as to

negate [the State's] intention' to deem it 'civil.' " [Citation.] Because [courts] "ordinarily

defer to the legislature's stated intent" [citation], " 'only the clearest proof' will suffice to

override legislative intent and transform what has been denominated a civil remedy into a

criminal penalty.' " (Mosley, supra, 60 Cal.4th at p. 1063, citing Smith, supra, 538 U.S.

at p. 92.) The factors that are most relevant to the analysis of the effects of the regulatory

scheme " 'are whether, in its necessary operation, the regulatory scheme: has been

regarded in our history and traditions as a punishment; imposes an affirmative disability

or restraint; promotes the traditional aims of punishment; has a rational connection to a

nonpunitive purpose; or is excessive with respect to this purpose.' [Citation.] [The court

analyzes] these factors 'in relation to the statute on its face. ' " (Ibid.)

27
 Based largely on the findings set forth in Proposition 83 and the ballot arguments

in support of the proposition, the Mosley court concluded that "the electorate had a

regulatory, nonpunitive purpose." (Mosley, supra, 60 Cal.4th at p. 1065.) The court

therefore considered "whether the restrictions, if generally applicable to nonparolee

registered sex offenders in California, nonetheless have such a necessary punitive effect

as to override this nonpunitive intent," and concluded that they do not. (Ibid.)

Crowe argues, as the Court of Appeal in Mosley concluded, that the residency

restrictions of section 3003.5 are akin to the traditional punishment of banishment and

have other punitive effects, such as forcing offenders to move away from established

residences if a school or park opens nearby. (Mosley, supra, 60 Cal.4th at p. 1065.) The

Mosley court reasoned: "There is no doubt that the residency restrictions of Jessica's Law

can produce significant difficulties and inconveniences in particular areas and individual

cases. . . . But we are not persuaded that they so resemble traditional punishment, or are

necessarily so harsh, as to compel a conclusion that their punitive effect overrides their

regulatory intent.

"Though potentially burdensome, the terms of the residency restrictions are

limited. '[They] impose[] no physical restraint, and so [do] not resemble the punishment

of imprisonment, which is the paradigmatic affirmative disability or restraint. [Citation.]'

[Citation.] They infringe upon personal liberties far less than does the 'post-incarceration

confinement' of dangerously disordered sex offenders, which the high court has

recognized as ' "a legitimate nonpunitive government objective." ' [Citations.] They do

28
not regulate a registered sex offender's daily activities, and they seem, on their face, no

harsher 'than the sanction[] of occupational debarment, which [the high court has also]

held to be nonpunitive. [Citations.]' [Citation.]

"Nor are the restrictions akin to banishment. One subject to them is not thereby

excluded from the state or any part thereof. They do not dictate where he or she may

travel, visit, shop, eat, work, or play. Even the law's domiciliary prohibitions are, by their

terms, confined to specified geographic areas relevant to the regulatory purpose they

serve. Hence, they do not, on their face, meet or approach the traditional definition of

banishment—the entire dismissal, expulsion, or casting out from one's community, and

into exile. [Citations.] . . .

"Further, the restrictions do not take on the character of punishment by

comparison to forms of conditional, supervised postconviction release, such as probation

and parole, which might be considered punitive. [Citations.] As applied to nonparolees

such as defendant, the residency restrictions involve no oversight or supervision by penal

authorities. Their violation cannot result in revocation of a conditional release; rather, the

only arguable sanction is 'a [criminal] proceeding separate from the individual's original

offense.' [Citation.] The possibility of criminal prosecution for violation of the

restrictions is simply calculated to give effect to a 'valid regulatory' measure, and does not

make them punitive. [Citation.]

"Similarly, there is little relevance to the fact that the restrictions, like criminal

punishment, are aimed at deterring future crimes, and might have that effect. 'Any

29
number of governmental programs might deter crime without imposing punishment. "To

hold that the mere presence of a deterrent purpose renders such sanctions

'criminal' . . . would severely undermine the Government's ability to engage in effective

regulation." [Citations.]' [Citation.] Indeed, the primary deterrence of the residency

restrictions is not a threat that wrongdoing will be met with sanctions—the premise of

punishment. Rather, it is simply a way to reduce registered sex offenders' contact with

children on whom they might prey by ensuring that such persons will not live near where

children routinely gather.

"Finally, the real-life consequences of the residency restrictions of Jessica's Law

may vary widely from person to person, and from case to case. Unlike registration

requirements, which demand periodic affirmative acts from all registrants throughout

their lifetimes [citation], the residency restrictions impose no additional obligations on

registrants whose domiciles of choice are, and remain, in compliance with Jessica's Law.

In sum, these restrictions do not necessarily inflict such onerous disabilities and

restraints, or otherwise so resemble common or traditional forms of punishment, that they

must be so labeled . . . despite their regulatory and nonpunitive intent." (Mosley, supra,

60 Cal.4th at pp. 1065-1067, fns. omitted.)

In light of Mosley's reasoning and conclusion that the residency restrictions of

section 3003.5 do not constitute punishment, we conclude that the restrictions do not

violate the federal and state constitutional prohibitions against cruel and unusual

punishment.

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 DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

31