Filed 4/26/22 P. v. Barrientos CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B312858
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070845)
v.
ALFONSO BARRIENTOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lisa M. Strassner, Commissioner. Affirmed.
Law Offices of Bruce W. Nickerson and Bruce W.
Nickerson, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2017, appellant Alfonso Barrientos met someone he
thought was a 16-year-old girl online and arranged to have sex
with her. The girl was in fact a police decoy. Appellant pled no
contest to meeting a minor for lewd purposes in violation of Penal
Code section 288.4, subdivision (b),1 which required him to
register as a sex offender under section 290. In 2021, the
superior court terminated appellant’s probation early, but denied
his motion to terminate the registration requirement.
On appeal, appellant poses an equal protection challenge to
section 290, asserting that registration for certain sex offenders is
discretionary, and he should not be subject to mandatory
registration because he did not interact with a real minor. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to appellant, in January 2017 he was “searching
for adult companionship on an adult site called Backpage.”
Appellant, then age 47, responded to an ad by “Mandy,” who was
purportedly 19 years old. However, “Mandy” soon told appellant
she was 16, about to turn 17. Appellant replied, “Oh good, you
are younger. I love it.” However, “Mandy” was a police decoy.
When appellant arrived at the motel where he and “Mandy”
arranged to meet, he was arrested.
Appellant was charged with felony meeting a minor for
lewd purposes in violation of section 288.4, subdivision (b), and
1All further statutory references are to the Penal Code
unless otherwise indicated.
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pled no contest.2 In July 2017, the court sentenced appellant to
four years in prison, suspended, and five years’ formal probation.
Appellant was required to register as a sex offender for life under
section 290.
In March 2021, appellant moved for early termination of
probation, relief under section 1203.4,3 and termination of the
requirement that he register as a sex offender. The superior
court noted that, effective January 1, 2021, Assembly Bill No.
1950 (2019-2020 Reg. Sess.) modified section 1203.1 to reduce
felony probation terms to two years. (§ 1203.1, subd. (a).)
Because appellant had already served two years, the court
terminated probation. The court also granted appellant’s motion
under section 1203.4. The court denied appellant’s request to
terminate the sex offender registration requirement, noting that
the registration requirement was not discretionary.
Appellant timely appealed.
DISCUSSION
Appellant states that he is “asking this court to carve out
an exception to the registration requirement” under section 290
“based solely on” the fact that “this crime was created by decoy
2 Appellant was also charged with a misdemeanor of the
same crime under section 288.4, subd. (a)(1). He pled no contest
to the felony count only.
3 Section 1203.4, subdivision (a) requires the court to
permit a defendant who has fulfilled the conditions of probation
to obtain relief from the conviction. “‘[S]ection 1203.4 does not,
properly speaking, “expunge” the prior conviction. The statute
does not purport to render the conviction a legal nullity. Instead,
it provides that, except as elsewhere stated, the defendant is
“released from all penalties and disabilities resulting from the
offense.”’” (People v. Vasquez (2001) 25 Cal.4th 1225, 1230.)
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police conduct.” He argues that although sex offender
registration involves legislative “concern over the exploitation of
children,” this case “was generated not by a child . . . but rather
by police themselves.” He contends he should not have to
“register for the rest of his life because he simply swallowed the
ruse.” He also asserts that registration is discretionary for a
violation of section 261.5—“unlawful sexual intercourse” with a
minor—and contends that mandatory registration for his
conviction, by contrast, violates the Equal Protection Clause of
the 14th Amendment of the United States Constitution. He
argues that “making an agreement to meet a minor mandatorily
registrable makes no sense” when registration for “actual
consummation of that meeting” would only be discretionary.
Respondent Attorney General asserts that appellant’s
claim has been forfeited, because he did not object to the sex
offender registration requirement at the time of his sentencing.
We agree. The registration requirement was imposed at
sentencing in 2017. Appellant did not object at the time, and he
cannot now, years later, contend that this requirement should be
inapplicable to his crime. (See, e.g., People v. Rogers (2006) 39
Cal.4th 826, 854 [an equal protection claim may be forfeited
where the defendant does not timely object].)
Even if appellant had not forfeited this argument, however,
we would reject it.4 Appellant acknowledges that the Supreme
Court in Johnson v. Department of Justice (2015) 60 Cal.4th 871
(Johnson) rejected a similar equal protection argument regarding
mandatory registration under section 290. In that case, the
defendant pled guilty to one count of nonforcible oral copulation
4“We review an equal protection claim de novo.” (People v.
Laird (2018) 27 Cal.App.5th 458, 469.)
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by a person over 21 years of age with a minor under 16 years of
age under section 288a, subdivision (b)(2), which required the
defendant to register as a sex offender under section 290. (Id. at
p. 876.) The defendant argued that the registration requirement
violated the equal protection doctrine under the reasoning of
People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which
“interpreted the federal and state equal protection clauses as
invalidating mandatory sex offender registration for a 22-year-old
defendant convicted of nonforcible oral copulation with a person
16 years of age (§ 288a, subd. (b)(1)), for the reason that a same-
aged defendant convicted of unlawful sexual intercourse with a
same-aged minor (§ 261.5) is subject to discretionary
registration.” (Johnson, supra, 60 Cal.4th at p. 874.)
In Johnson, however, the court found that “Hofsheier’s
constitutional analysis [was] faulty. In particular, it mistakenly
concluded that no rational basis exists for subjecting intercourse
offenders and oral copulation offenders to different registration
consequences.” (Johnson, supra, 60 Cal.4th at p. 875.) The court
observed, for example, that “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.” (Id. at p. 886.) The court therefore found “a
rational basis for the difference in registration consequences as
between those convicted of unlawful intercourse and those
convicted of nonforcible oral copulation.” (Id. at p. 889.)
Appellant acknowledges that his argument does not survive
Johnson, but he nevertheless asserts that we should follow
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Justice Werdegar’s dissent instead of the majority opinion in that
case. Justice Werdegar found the disparity between the
registration requirements to be “an anachronistic holdover from a
period . . . when oral copulation and sodomy were regarded as
abhorrent sexual perversions closely associated with
homosexuality and were therefore outlawed regardless of the
participants’ ages.” (Johnson, supra, 60 Cal.4th at p. 890 (dis.
opn. of Werdegar, J.).) However, decisions of the Supreme Court
“are binding upon and must be followed by all the state courts of
California.” (Auto Equity Sales, Inc. v. Superior Court of Santa
Clara County (1962) 57 Cal.2d 450, 455.) We decline appellant’s
invitation to depart from the Johnson precedent.
Finally, appellant asserts that a recent change to section
290 “warrants reevaluation of this issue.” As respondent
accurately points out, appellant “provides absolutely no
explanation or authority to support this argument.” This
contention has therefore been forfeited. (See, e.g., People v.
Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [perfunctory
appellate arguments are forfeited].) In addition, the changes to
section 290, subdivision (c)(2) enacted in 2021, which appellant
cites, address registration for violations of sections 286,
subdivision (b); 287, subdivision (b); and 289, subdivisions (h) and
(i)—none of which is relevant here.
We therefore find no error in the superior court’s denial of
appellant’s motion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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