>PEOPLE v.
ALVARADO

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Filed 7/30/10







CERTIFIED FOR PARTIAL
PUBLICATION^* >



IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA >



FOURTH APPELLATE DISTRICT



DIVISION TWO




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THE PEOPLE, Plaintiff and Respondent, v. FIDENCIO CARILLO ALVARADO, Defendant and Appellant.

E049321 (Super.Ct.No. SWF012909) OPINION

APPEAL
from the Superior Court of Riverside
County. Ronald L. Johnson,
Judge. (Retired judge of the San Diego
Sup. Ct., assigned by the Chief Justice pursuant to art. VI, §
6, of the Cal. Const.)
Affirmed with directions.

Rex
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund
G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Bradley
A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Fidencio Carillo Alvarado appeals from judgment
entered following jury convictions for attempted lewd act on a child under 14
years old (Pen. Code, §§ 664, 288, subd. (a)^[1]; count 1); attempted dissuading of a witness (§
136.1, subd. (b)(1); count 2); and misdemeanor lewd and unlawful exposure (§ 314, subd.
(1); count 4). The trial court declared
a mistrial as to counts 3 and 5 because the jury was unable to reach a
verdict. The trial court also dismissed
count 6, willful failure to appear while on bail (§ 1320.5). The court suspended imposition of sentence
and placed defendant on probation for five years, subject to various terms and
conditions.

Defendant
contends the order requiring him to register as a sex offender violates his equal protection rights under the state
and federal Constitutions. He also
argues that section 4019, as amended, applies retroactively and therefore his
presentence conduct credits must be recalculated under section 4019, as
amended. Defendant further asserts that
the trial court erred in imposing various fees and costs as conditions of
probation. We agree that these
challenged probation conditions must be modified. In all other respects, we affirm the
judgment.

1. Facts

At night, about two weeks before J.M.'s 14th birthday,
defendant approached J.M. as she was walking with her friend, E.M., home. Defendant drove up to J.M. and asked her if
she wanted to have sex with him. When
J.M. looked in defendant's truck she saw defendant exposing his penis and
stroking it. J.M. continued walking as
defendant followed her. After J.M. went
home, she told her grandmother about the incident.

The
day before J.M.'s 14th birthday defendant again approached J.M. in his truck as
she was walking E.M. home. Defendant
called J.M. over and asked her to meet him to have sex with him. J.M. saw defendant exposing and stroking his
penis again. When J.M. told defendant
she was going to tell her grandmother, defendant said he knew where J.M. lived
and told her not to tell the police or her parents. J.M. went home and, while hiding behind a
bush, wrote down defendant's license plate number as he drove down her street.

J.M.
reported the incident to her grandmother and the police. The police located defendant in his truck and
J.M. identified defendant. J.M.'s
grandmother testified that about a week before defendant approached J.M.,
J.M.'s grandmother had shown defendant and another man one of her apartments
that was for rent.

Defendant
testified he had seen J.M. twice, including once when he and a friend went to
J.M.'s apartment to look at an apartment J.M.'s grandmother was renting. After that, defendant saw J.M. two more
times, including while he was driving down the street. Defendant claimed J.M. told him to stop and
then ran up to his vehicle and asked where he was going. Defendant denied he exposed his penis. On another occasion, J.M. asked defendant to
lower his window and she put her upper body in his truck. Defendant acknowledged that, after he was
arrested, he told an officer he was attracted to J.M. and wanted to date her,
but claimed he told the officer this because the officer was intimidating him.

2. Mandatory Sex Offender Registration

Defendant is required under
section 290 to register as a sex offender because he was convicted of violating
section 288, subdivision (a)^[2] (attempted lewd acts on a child under 14 years
old) and section 314, subdivision (1) (lewd exposure).

Defendant contends that he
was denied equal protection of the laws
under the federal and state Constitutions because sex offender registration is
mandatory for his convictions, whereas it is discretionary for a section 261.5
conviction (unlawful intercourse with a minor).
Defendant complains that persons convicted of committing or attempting
to commit section 288(a) and section 314 offenses are similarly situated to
those who commit a section 261.5 offense, yet they are treated differently.

The constitutional guaranty
of equal protection of the laws under the federal and state Constitutions
â€