I dissent.
Penal Code section 2901 states in relevant part: “(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while residing in . . . California . . . shall be required to register with the chief of police of the city in which he or she is residing, . . . within five working days of coming into . . . any city, county, or city and county ... in which he or she temporarily resides . . . . [¶] (2) The following persons shall be required to register pursuant to paragraph (1): [¶] (A) Any person who, since My 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section . . . 288a . . . .” Section 290 thus requires any person convicted of violating section 288a, subdivision (b)(1) to register as a sex offender. (§ 290, subd. (a)(1)(A), (2)(A).) Section 288a, subdivision (b)(1) provides that it is a felony for any person to engage in an act of oral copulation with a person under the age of 18.2 A person convicted of this statute may not obtain relief from the registration requirement under any circumstances other than a “full pardon.” (§§ 290.5, subd. (b)(1), 290.4, subd. (a)(1).)
Section 261.5, subdivision (a) provides that it is a crime for a person to engage in an act of sexual intercourse with a person under the age of 18 who is not the spouse of the perpetrator.3 Section 290 does not require a person convicted of violating section 261.5, subdivision (a) to register as a sex offender.
In this case, prior to sentencing, defendant filed a pro per request asking the trial court to exercise its section 1385 discretion to dismiss on the ground that the sex offense registration requirement violated his constitutional right to equal protection of the law.
*234The trial court noted that, in his written motion, defendant had placed “a lot of emphasis on the People v. Felarca case from our own Sixth District.” The court acknowledged that defendant properly had pointed out that the case had been ordered depublished. Commenting that the Felarca opinion had been ordered depublished, the court explained to the defendant that he could not cite it or rely upon it, but that he was “free to argue the same reasoning as was used in that case.”
Noting that it was considering two sex offenses committed against a person under age 18 and that “[t]he 261.5 unlawful sexual intercourse does not require registration, whereas the 288 does,” the trial court pondered, “Is there really any distinction in the law between traditional intercourse and oral sex?” The court did not directly answer its own question; instead, it reasoned as follows: “The law makes distinction on who should register. I have to presume the Legislature had a rational basis in determining certain categories of sexual offenders are more likely to recidivate than others. [¶] I think to prevail on this motion you have to bring in some evidence to show that’s irrational and that’s not the case when it comes to recidivism. It would be the same as a conviction of 288. First one 261.5. Obviously you don’t have that information, and I am inclined to deny the Mills case and some of the other cases that deal with the registration statute. I haven’t found an equal protection problem.”
When the court asked if defendant wished to add anything to what he had presented in his written motion, defendant responded, “No, sir. I pretty much thought it would speak for itself.” The trial court replied, “Yes, it does. It presents very well. Obviously if the Felarca case had not been depublished, you’d have a winner on this motion.”
Defendant seeks review of the trial court’s decision not to exercise its section 1385 discretion to dismiss defendant’s conviction. I agree with the majority that defendant is entitled to seek review of the denial of his 1385 motion made after the entry of his guilty plea. (People v. Lloyd (1998) 17 Cal.4th 658, 665 [72 Cal.Rptr.2d 224, 951 P.2d 1191].)
However, although our Felarca opinion was ordered depublished, I continue to adhere to its reasoning and its conclusions. Accordingly, I would again hold that there is no rational basis for distinguishing between sex offenders who engage in substantial sexual conduct with those under age 18 on the ground that one class of offenders has engaged in oral copulation and the other has engaged in sexual intercourse.
*235“ ‘ “ ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” ’ . . . It is often stated that ‘[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ . . . The use of the term ‘similarly situated’ in this context refers only to the fact that ‘ “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714 [63 Cal.Rptr.2d 173], citations omitted.)
Here the elements of section 288a, subdivision (b)(1) and section 261.5, subdivision (a) are essentially identical except that one prohibits oral copulation and the other sexual intercourse. Both prohibit substantial sexual conduct with a minor under the age of 18. However, a violation of section 288a, subdivision (b)(1) requires sex offender registration and a violation of section 261.5, subdivision (a) does not. In our view, the two groups of violators are sufficiently similar to merit some level of scrutiny in order to determine whether registration is justified for one group, but not the other.
In analyzing an equal protection challenge, the question of the appropriate standard of review turns on whether the interest affected by the distinction is one that is considered “fundamental.” (People v. Nguyen, supra, 54 Cal.App.4th 705, 715-716.) “Where the right affected by the classification is not constitutionally protected, the classification need only be rationally related to a legitimate state purpose in order to withstand equal protection scrutiny.” (People v. Leung (1992) 5 Cal.App.4th 482, 494 [7 Cal.Rptr.2d 290].)
Even assuming that requiring a person to register as a sex offender for the rest of his or her life does not affect that person’s “fundamental” or *236“constitutionally protected” rights, a distinction between the two statutes cannot be justified. The legislative purpose of section 290 is to assure that persons convicted of specified sex offenses “shall be readily available for police surveillance at all times. The Legislature has deemed such persons likely to commit similar offenses in the future and upon this basis the registration is required. [Citation.]” (People v. Mills (1978) 81 Cal.App.3d 171, 176 [146 Cal.Rptr. 411].) Requiring those who engage in oral copulation with those under age 18 to register as sex offenders, but making no such requirement for those who engage in sexual intercourse with those under age 18 is a distinction without any rational support. Since the classification does not withstand equal protection scrutiny, the registration requirement for those who violate section 288a, subdivision (b)(1) must be stricken.
The People’s reliance on People v. Mills, supra, 81 Cal.App.3d 171, is misplaced. In Mills, the defendant was convicted of lewd and lascivious conduct on a child under the age of 14 (§ 288) after he attempted sexual intercourse with a seven-year-old girl by means of threats and force. The defendant argued that his registration requirement denied him equal protection of the law, because some sex offenders were required to register and others were not. The Mills court rejected his argument by stating: “The fact there are some types of classes of sex offenses which are not made subject to registration does not per se require the finding there is a denial of equal protection. This may be based upon the legislative determination a particular type of offender does not recidivate or recidivates less; some offenses, although touching upon sexual acts, are not so directly concerned or related to the type of conduct which is repetitive, recidivist, in nature. In this final analysis, these are matters for consideration for the Legislature and should be addressed to that body.” (Mills, at p. 181.) I agree with the Mills court that the Legislature could rationally draw distinctions between various sex offenders in determining which sex offenders must be required to register, because there are a wide variety of sex offenses. In contrast to Mills, the instant case presents a narrower question, that is, whether there is a rational basis for distinguishing between sex offenders who engage in substantial sexual conduct with those under age 18 on the ground that one class of offenders has engaged in oral copulation and the other has engaged in sexual intercourse. In my view, such a distinction is irrational.
Here, the trial court mistakenly believed that defendant’s equal protection argument lacked substantive merit. Since the trial court indicated that defendant’s motion would have been potentially meritorious had there been “an equal protection problem,” I conclude that a remand is appropriate to give the trial court the opportunity to reconsider, in light of the views expressed *237herein, defendant’s request that it exercise its discretion under section 1385 by dismissing defendant’s present conviction for failing to register as a sex offender.
A petition for a rehearing was denied September 3, 2002, and appellant’s petition for review by the Supreme Court was denied October 30, 2002. Kennard, J., and Moreno, J., were of the opinion that the petition should be granted.
All further statutory references are to the Penal Code unless otherwise specified.
The punishment for this offense is a state prison term of 16 months or 2 or 3 years. (§ 18.)
The punishment for this offense is a state prison term of 16 months or 2 or 3 years. (§ 18.)