Filed 5/11/23 P. v. McKenzie CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319489
(Super. Ct. No. 21F-03938)
Plaintiff and Respondent, (San Luis Obispo County)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
ANTWAN McKENZIE, JR., [NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on April 26, 2023, be
modified as follows:
On page 1, on the last line, the words “30 years old” are changed
to “29 years old.”
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
GILBERT, P.J. YEGAN, J. BALTODANO, J.
2
Filed 4/26/23 P. v. McKenzie CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319489
(Super. Ct. No. 21F-03938)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ANTWAN McKENZIE, JR.,
Defendant and Appellant.
Antwan McKenzie, Jr. appeals an order granting probation
following his conviction of contacting a minor, where he was at
least 10 years older than the victim, with the specific intent to
commit a sexual offense. (Pen. Code, §§ 288.3, subd. (a), 288,
subd. (c)(1).)1
This appeal concerns McKenzie’s felony conviction
resulting from his text communications to the 15-year-old
babysitter of his children, with the specific intent to commit a
sexual offense. At the time, McKenzie was 30 years old and
1 All statutory references are to the Penal Code.
married to the babysitter’s aunt. On appeal, McKenzie raises
issues regarding the trial court’s failure to reduce his felony
conviction to a misdemeanor. (§ 17, subd. (b); In re Williamson
(1954) 43 Cal.2d 651 (Williamson).) He also challenges the
imposition of sex offender registration, claiming that the lifetime
registration requirement violates his constitutional rights to
equal protection of the law. We reject these contentions and
affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2020, McKenzie was married to A.S. and together they
had five children. Fifteen-year-old S.E. frequently babysat the
children. A.S. was S.E.’s aunt and McKenzie communicated by
text with S.E. from time to time regarding the children. S.E.
“didn’t think too much of it because [she was] watching the kids.”
Some of McKenzie’s text messages made S.E.
uncomfortable because they were inappropriate. On August 6,
2020, McKenzie texted that he desired to be in a Jacuzzi and
later texted a photograph of a man lying in bed. McKenzie also
texted that S.E. should delete his messages to her. McKenzie
frequently asked S.E. where she was and with whom. S.E. did
not inform her mother of these text messages because McKenzie
was her uncle and she wanted to retain her paid babysitting job.
In September 2020, McKenzie texted S.E. and invited her
to accompany his family on a trip to Pismo Beach. S.E. agreed.
McKenzie had earlier referenced obtaining a Jacuzzi suite. S.E.
and the family stayed in the same hotel room.
During the Pismo Beach sojourn, McKenzie repeatedly
texted S.E. and urged her to enjoy the Jacuzzi with him and
smoke marijuana. He texted that his family was asleep and that
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he wanted to kiss S.E. McKenzie also offered S.E. money and
stated he wanted to touch her “petite ass.”
S.E. contacted her mother and later the Pismo Beach Police
Department by text to complain regarding McKenzie. Upon
S.E.’s return home, she and her mother filed a police complaint.
Police officers retrieved the text messages from S.E.’s cellular
telephone. Later, officers obtained a search warrant for
McKenzie’s cellular telephone account from his mobile provider.
The jury convicted McKenzie of contacting a 15-year-old
minor, where he was at least 10 years older than the minor, with
the specific intent to commit a sexual offense. (§§ 288.3, subd.
(a), 288, subd. (c)(1).) The jury also separately found that
McKenzie took advantage of a position of trust or confidence to
commit the sexual offense. The trial court suspended imposition
of sentence and placed McKenzie on formal probation for two
years with the condition, among others, that he serve 200 days
confinement in county jail. The court also ordered McKenzie to
register for life as a sex offender pursuant to section 290.
McKenzie appeals and contends that the trial court erred
by: 1) not reducing his felony conviction to a misdemeanor
violation of section 647.6, subdivision (a)(1), pursuant to
Williamson, supra, 43 Cal.2d 651; 2) not treating his conviction
as a wobbler misdemeanor pursuant to section 17, subdivision
(b); and 3) imposing a lifetime sex registration requirement.
DISCUSSION
I.
McKenzie argues that the Williamson rule requires that his
criminal conduct be punished pursuant to the “special statute”
section 647.6 (“Annoying or molesting children [under 18]”),
rather than the “general statute” section 288.3.
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Pursuant to Williamson, supra, 43 Cal.2d 651, if a general
statute includes the same conduct as a special statute, the court
infers that the Legislature intended that conduct be prosecuted
exclusively under the special statute. Thus, the special statute is
interpreted as creating an exception to the general statute for
conduct that otherwise could be prosecuted under either statute.
(People v. Murphy (2011) 52 Cal.4th 81, 86.) The Williamson
preemption rule is applicable 1) when each element of the general
statute corresponds to an element on the face of the special
statute, or 2) when it appears from the statutory context that a
violation of the special statute will necessarily or commonly
result in a violation of the general statute. (Murphy, at p. 86.)
The rule does not apply when “a felony statute requires a more
culpable mental state than a misdemeanor statute proscribing
the same behavior.” (Hudson v. Superior Court (2017) 7
Cal.App.5th 999, 1007.)
Section 288.3, subdivision (a), provides: “Every person who
contacts or communicates with a minor, or attempts to contact or
communicate with a minor, who knows or reasonably should
know that the person is a minor, with intent to commit an offense
specified in Section . . . 288 . . . involving the minor shall be
punished by imprisonment in the state prison for the term
prescribed for an attempt to commit the intended offense.”
Section 288, subdivision (c)(1), provides: “A person who commits
an act described in subdivision (a) [lewd or lascivious act on child
under 14 years] 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
4
more than one year.” Section 647.6, subdivision (a)(1), provides:
“Every person who annoys or molests any child under 18 years of
age shall be punished by a fine . . . by imprisonment in a county
jail not exceeding one year, or by both . . . .”
The Williamson rule is inapplicable here considering either
the statutory elements test or the statutory violation test. Here
the prosecutor alleged that McKenzie had the specific intent to
commit lewd or lascivious conduct pursuant to section 288,
subdivision (c)(1), which prohibits lewd or lascivious conduct with
a minor who is 14 or 15 years old and a defendant more than 10
years older than the minor. The elements of this statute include
lewd or lascivious conduct and an age differential between the
victim and defendant. Section 288.3 requires a contact or
communication with a minor plus the specific intent to commit a
section 288 or another enumerated sex offense. By contrast,
section 647.6, subdivision (a)(1), requires annoyance or
molestation of a child under 18 years and is a general intent
crime. (People v. Fromuth (2016) 2 Cal.App.5th 91, 102.) A
violation of section 647.6, subdivision (a)(1), would not
necessarily cause a violation of sections 288.3 and 288,
subdivision (c)(1).
In any event, application of the Williamson rule in the
manner that McKenzie suggests would effectively render section
288.3 a nullity. In enacting section 288.3, the electorate
expressed its intent to protect children from Internet predators. 2
(People v. Korwin (2019) 36 Cal.App.5th 682, 689-690.) As a
general rule, the Williamson rule is simply a means of
2 The Sexual Predator Punishment and Control Act:
Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7,
2006), § 6.)
5
determining and effectuating legislative intent and should not be
applied to defeat express legislative intent. (People v. Jenkins
(1980) 28 Cal.3d 494, 502-503 [court must consider context of
special statute in determining statutory overlap].)
II.
McKenzie asserts that the trial court did not exercise its
discretion to treat his criminal conviction as a wobbler
misdemeanor offense. He acknowledges that his attorney did not
request misdemeanor treatment during sentencing and therefore
contends that he received ineffective assistance of counsel.
(People v. Weddington (2016) 246 Cal.App.4th 468, 491 [wobbler
claim forfeited where defense counsel failed to request
misdemeanor at sentencing].)
McKenzie has forfeited this argument because he did not
request reduction of his offense to a misdemeanor. In his
sentencing brief and at the sentencing hearing, McKenzie
requested that the trial court place him on felony probation. A
defendant may not remain silent at sentencing and later
challenge the court’s discretionary sentencing choices. (People v.
Weddington, supra, 246 Cal.App.4th 468, 491.) Reduction of a
wobbler offense to a misdemeanor is a discretionary sentencing
choice that must be raised at sentencing. (Ibid.)
Forfeiture aside, the plain language of section 288.3,
subdivision (a), states that every violation “shall be punished by
imprisonment in the state prison for the term prescribed for an
attempt to commit the intended offense.” This language tracks
the language of section 17, subdivision (a), which states, “A felony
is a crime that is punishable . . . by imprisonment in the state
prison . . . . Every other crime or public offense is a misdemeanor
except those offenses that are classified as infractions.” If a penal
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statute does not expressly characterize the crime as either a
felony or a misdemeanor, the punishment specified “ ‘becomes the
test.’ ” (People v. Terry (1996) 47 Cal.App.4th 329, 331.)
It is a legislative function to define crimes and prescribe
punishment therefor. (People v. Park (2013) 56 Cal.4th 782, 789.)
The Legislature has defined “a special class of crimes involving
conduct that varies widely in its level of seriousness,” commonly
referred to as wobbler offenses. (Ibid.) These crimes may be
charged or punished as a felony or misdemeanor. (Ibid.) This
alternate punishment must be authorized by statute; a trial court
has no power to reduce a straight felony to a misdemeanor.
(People v. Mauch (2008) 163 Cal.App.4th 669, 674 [the definition
of crimes and determination of punishment are matters within
the legislative domain].)
Moreover, the Legislature and the electorate may consider
the harm occasioned by some criminal attempts “to be on a par
with a completed crime.” (People v. Moses (2020) 10 Cal.5th 893,
911.) “It is their prerogative to enact statutes that reflect that
determination.” (Ibid.)
Section 288.3 was adopted by the electorate in November
2006 as Proposition 83 with a stated purpose of protecting
children from sexual predators who use the Internet to victimize
children. (People v. Korwin, supra, 36 Cal.App.5th 682, 689-690.)
Making all violations of section 288.3 a felony, even where the
underlying target crime is punishable as either a felony or
misdemeanor, is consistent with the declared purpose of
Proposition 83. (People v. Medelez (2016) 2 Cal.App.5th 659,
663.)
Nor does the “rule of lenity” save McKenzie’s argument.
That a completed lewd act with a minor could be treated as a
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misdemeanor is of no moment because section 288.3 has defined
all violations as felonies. This classification serves the statute’s
purpose of increasing punishment for predatory sexual offenders
targeting minors. (People v. Cornett (2012) 53 Cal.4th 1261, 1271
[rule of lenity does not apply where court can discern a contrary
legislative intent].)
Furthermore, McKenzie did not receive the ineffective
assistance of counsel regarding this newly asserted claim on
appeal. Counsel does not render ineffective assistance by failing
to make motions or objections that are meritless. (People v. Price
(1991) 1 Cal.4th 324, 387.)
III.
McKenzie argues that the lifetime sex offender registration
for his section 288.3 conviction, based upon the target crime of
section 288, subdivision (c)(1), violates his federal and state
constitutional rights to equal protection of the law. (§ 290, subd.
(d)(3)(C)(xi); People v. Chatman (2018) 4 Cal.5th 277, 288-289
[two-part showing required to establish violation of equal
protection of the law].) He points out that a violation of section
288.3, based upon specific intent to commit other target offenses,
such as sodomy, oral copulation, or penetration with a foreign
object (absent certain age differentials), requires registration for
only 10 or 20 years.
The constitutional guarantee of equal protection of the law
means that persons similarly situated with respect to the purpose
of the law must be similarly treated under the law. (People v.
Keister (2011) 198 Cal.App.4th 442, 450 [rejecting various
constitutional challenges to section 288.3].) If persons are not
similarly situated for purposes of the law, an equal protection
claim “ ‘fails at the threshold.’ ” (Ibid.)
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McKenzie’s claim fails because all defendants convicted
pursuant to section 288.3 are not similarly situated. The
statutory punishment for various target crimes rests upon
multiple factors such as the age of the victim, the relative age of
the defendant, and the severity of the conduct intended.
Punishment for the criminal offenses of sodomy and oral
copulation with a minor increases significantly based upon the
age of the victim and relative age of the defendant. Depending
upon the relative ages, lifetime sex registration may be required.
(§§ 286, subd. (c)(1), 287, subd. (c)(1), 289, subd. (j), 290, subd.
(d)(3)(C)(xi.).) ”[A] defendant’s age can provide a meaningful
distinction between offense categories for equal protection
purposes.” (Legg v. Department of Justice (2022) 81 Cal.App.5th
504, 512 [potential for predatory behavior resulting from age
difference between adult and minor warrants mandatory sex
offender registration].) The lifetime registration requirement
rests upon a rational basis of the relative age difference between
the defendant and the victim. (Ibid.; Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 887 [rational review requires
acceptance of “gross generalizations and rough accommodations”
by Legislature; perfect fit “ ‘ “between means and ends” ’ ” not
necessary].)
DISPOSITION
The order of probation is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J. BALTODANO, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Arielle Bases, under appointment by the Court of Appeal,
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 David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
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