Filed 7/26/17 P. v. Mundkowsky CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM EVERETT MUNDKOWSKY,

Defendant and Appellant.


G053557

(Super. Ct. No. M-16309)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.
Law Offices of Robert D. Salisbury and Robert Salisbury for Defendant and Appellant.
Kamala D. Harris, Attorney 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.
In December 1991, appellant William Everett Mundkowsky, then 24, was convicted of one count of perpetrating a lewd act upon a child (Pen. Code, § 288, subdivision (a) ) based on an incident involving a seven-year old in a shower. He was also convicted of one act of child molestation, based on a different incident with the same victim in a bedroom. (§ 647.6.) Mundkowsky was sentenced to six years in prison for the violation of section 288, subdivision (a), and also given a one-year sentence for the misdemeanor child molestation charge, running concurrently.
In 2015, at age 51, he applied for a certificate of rehabilitation. Much of our appellate record is documentation of Mundkowsky’s having led a good life in the interim quarter century, including obtaining an M.S. in civil engineering from Cal State Fullerton. However, the trial court ruled he was automatically ineligible for such a certificate because the crime of which he was convicted – section 288, subdivision (a) – is specifically excluded by the relevant statute, section 4852.01.
On appeal, Mundkowsky asserts that section 4852.01’s exclusion of persons convicted of section 288, including subdivision (a), from the purview of possibility of a certificate of rehabilitation violates equal protection because the Legislature did not also exclude persons convicted of arguably more reprehensible sex crimes against minors, specifically section 286, subdivision (d)(2) [relating to anal copulation] and section 288a, subdivision (d)(2) [relating to oral copulation]. The distinction, he contends on appeal, is irrational. More specifically, he says the anomaly of a lesser crime (his own) not being eligible for a certificate of rehabilitation when there are two greater crimes which are eligible, contravenes rational basis equal protection.
As the argument is presented in the opening brief, we disagree. We note that Mundkowsky’s opening brief never quotes the language from either section 286, subdivision (d)(2) or section 288a, subdivision (d)(2). Examination of the text of each statute, shows they require action “in concert” and include persons who may be aiders or abettors of the perpetration of anal copulation or oral copulation against minors. Accordingly, the differentiation between section 288, subdivision (a) and subdivision (d)(2) of sections 286 and 288a survives rational basis scrutiny. The Legislature could rationally conclude aiders or abettors of child-victim sex crimes might be more susceptible to rehabilitation than individuals who commit those crimes alone. An aider or abettor might not harbor the same psychosexual compulsion toward minors as a person acting alone. An aider or abettor’s primary motivation might be non-sexual entirely – peer pressure, financial gain, or any of the other myriad motivations that drive human activity.
Mundkowsky derides these considerations as “nearly absurd,” but the closest he comes to refuting it is to say aiders and abettors are “brazen and dangerous and thus, more likely to offend.” The combination of the illogic of that argument and the complete absence of any support for it in either the record or appellant’s brief requires us to reject it. Mundkowsky’s opening brief does not address the difference between crimes done alone and crimes done “in concert.” Indeed, the words “in concert” (even in a quote) are not to be found there.
To the degree that Mundkowsky relies on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) as authority for his equal protection argument, we conclude the case is inapposite. Hofsheier involved a significantly different statutory differentiation than the case at bar – between mandatory and discretionary lifetime sex offender registrations under section 290. It was mandatory for persons convicted of oral copulation with a 16 or 17 year old minor. It was only discretionary for persons convicted of unlawful sexual intercourse with a 16 or 17 year old minor. That was a differentiation in classes, said the Hofsheier court, which could not be justified on likelihood of reoffense.
In any event, Hofsheier was overruled in Johnson v. Department of Justice (2015) 60 Cal.4th 871 (Johnson), where the dissenter in Hofsheier, Justice Baxter, wrote the majority opinion: “Upon reexamination, we find Hofsheier’s constitutional analysis faulty. In particular, it mistakenly concluded that no rational basis exists for subjecting intercourse offenders and oral copulation offenders to different registration consequences. . . . [T]he decision failed to adequately appreciate that, among sex offenses, intercourse is unique in its potential to result in pregnancy and parenthood.” (Id. at p. 875.) The rationale in Johnson was, in fact, the very position that Justice Baxter had advanced in his dissent in Hofsheier. (See Hofsheier, supra, 37 Cal.4th at p. 1209 (dis. opn. of Baxter, J.).)
To the degree that Mundkowsky’s reply brief argues that section 4852.01 irrationally excludes sections 286, subdivision (d)(2) and 288a, subdivision (d)(2) because those provisions allow persons who personally commit the crimes (albeit in concert with an aider or abettor) to seek rehabilitation, we conclude the argument has been waived by the failure to raise it in the opening brief. As the court in Padilla v. Rodas (2008) 160 Cal.App.4th 742, 753, footnote 2 – one of many to echo the proposition – plainly said: “‘An appellant abandons an issue by failing to raise it in the opening brief.’ [Citation.]” Mundkowsky’s opening brief never gave the Attorney General’s office a chance to address that specific point.
That said, we would reject the argument even if it were properly raised. The instances are extremely rare where a defendant without a sexual motive will “personally” perpetrate one of these sex crimes against children, as distinct from aiding and abetting which, as we discussed above, may have many motivations. They are so exquisitely rare – if they exist at all – that the theoretical inclusion of such personal perpetrators fails to register on the equal protection scale.
As our Supreme Court recognized in Johnson, a statute does not fail to pass muster against a rational basis equal protection merely because the plausible reason for the classification does not “does not exist in every scenario” in which the relevant statute “might apply.” (Johnson, supra, 60 Cal.4th at p. 887.) “‘A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends.”’” (Ibid., quoting Heller v. Doe (1993) 509 U.S. 312, 321.) The scenario of a defendant who personally violates section 286, subdivision (d)(2) or 288a, subdivision (d)(2) but does so without a sexual motivation is so unlikely that it constitutes an almost infinitesimal imperfection in the statutory scheme. When . . . if . . . that issue presents itself, we will address it. But nothing in our record or the briefing suggests its presence here.
DISPOSITION
The order is affirmed.




BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.