Filed 9/6/17 P. v. Tittlefitz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.

Law Offices of Robert D. Salisbury and Robert D. Salisbury for Defendant and Appellant.

Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

John David Tittlefitz appeals from an order denying his petition for a certificate of rehabilitation and pardon. (Pen. Code, § 4852.01; all further statutory references are to the Penal Code.) He argues the court abused its discretion and violated his constitutional right to equal protection under the law. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

In 1999, Tittlefitz pleaded guilty to one count of lewd and lascivious acts on a child under the age of 14. (§ 288, subd. (a).) In 2014, he petitioned for certificate of rehabilitation and pardon under section 4852.01. Tittlefitz’s petition asserted he had successfully completed five years of probation and otherwise lived an honest and upright life.

The district attorney opposed the motion, relying on an express exclusion from the certificate of rehabilitation proceedings under subdivision (b) of section 4852.01. But Tittlefitz argued that statute violated equal protection by excluding persons like him who are convicted of committing nonforcible lewd acts on a child under the age of 14 (§ 288 subd. (a)), while including persons who are convicted of forcible oral copulation in concert on a child (§ 288a, subd. (d)(2)) and those convicted of forcible sodomy in concert on a child (§ 286, subd. (d)(2)).

The court denied the petition and Tittlefitz appealed.

DISCUSSION

“‘The 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.’ [Citations.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Tittlefitz claims this first prerequisite was satisfied based on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), which was overruled in Johnson v. Department of Justice (2015) 60 Cal.4th 871 (Johnson). We are not persuaded.

“Hofsheier concluded that, despite the different sex acts involved, persons convicted of nonforcible oral copulation with minors and persons convicted of unlawful sexual intercourse with minors are similarly situated so as to merit an examination whether distinctions between the two groups justify unequal registration treatment. [Citation.]” (Johnson, supra, 60 Cal.4th at p. 882.)

Tittlefitz argues this conclusion in Hofsheier survived Johnson and is controlling here, because Johnson refused to reconsider it. We disagree. All Johnson said was, “We need not reconsider this conclusion, because, in any event, we find Hofsheier erroneous in its rational basis analysis.” (Johnson, supra, 60 Cal.4th at p. 882.) Moreover, the Hofsheier conclusion that persons convicted of oral copulation and sexual intercourse with minors are similarly situated, does not mean persons convicted of committing those nonforcible lewd acts are similarly situated to persons who commit forcible oral copulation or sodomy in concert on a child. So Hofsheier does not control.

The statutes distinguish between persons who commit nonforcible sex offenses against children while acting alone (§ 288) and those who commit forcible sexual offenses against children while acting in concert (§§ 286, subd. (d)(2), 288a, subd. (d)(2)). The latter group may include persons who merely aided and abetted the crimes, since there is no requirement they either participate in or be personally present during the criminal act to be guilty of acting in concert. (People v. Farr (1997) 54 Cal.App.4th 835, 845.) Thus, we conclude these two groups of offenders are not similarly situated.

Alternatively, the disparate treatment of these two groups of offenders survives rational basis scrutiny. “Where, as here, a disputed statutory disparity implicates no suspect class 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.] . . . ‘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 “‘negative 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.”’ [Citations.]” (Johnson, supra, 60 Cal.4th at p. 881)

The Legislature could have rationally concluded persons who act in concert with others (aiders & abettors) may be more likely to rehabilitate and less likely to reoffend than someone who commits a similar crime acting alone. Thus, there is a conceivable and plausible basis for the Legislature’s decision to bar section 288, subdivision (a) offenders but not section 288a, subdivision (d)(2), or section 286, subdivision (d)(2), offenders from obtaining a certificate of rehabilitation. It follows Tittlefitz’s equal protection argument must fail. (Johnson, supra, 60 Cal.4th at p. 881)

DISPOSITION

The order denying Tittlefitz’s petition for certificate of rehabilitation and pardon is affirmed.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.