Full Opinion (html_with_citations)

Opinion

McINTYRE, J.

In this case we address whether the California Supreme Court’s holding in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier), that subjecting an offender convicted of voluntary oral copulation with a 16-year-old minor to mandatory lifetime sex offender registration violates equal protection, applies equally to an offender convicted of voluntary sexual penetration of a 13-year-old minor. We conclude that mandating lifetime sex offender registration for an offender convicted of sexually penetrating a 13-year-old minor violates equal protection because a similarly situated offender convicted of unlawful sexual intercourse with a victim the same age would not face mandatory lifetime registration. In doing so, we decline to follow the reasoning set forth in People v. Manchel (2008) 163 Cal.App.4th 1108 [78 Cal.Rptr.3d 194] (Manchel). Accordingly, we reverse and direct the trial court to exercise its discretion to determine whether defendant should be required to register as a sex offender.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2000, then 17-year-old Brylan Ranscht met the victim, then 12-year-old Emma H., and the two entered into a mutual romantic relationship. Ranscht and Emma’s relationship became physical, and in late 2000 and early 2001, then 18-year-old Ranscht digitally penetrated Emma’s vagina on two separate occasions. Emma was 12 or 13 years old on the dates of these events.

In 2006, Emma revealed to her therapist that she had engaged in sexual conduct with Ranscht in 2000 and 2001. At her parents’ behest, Emma reported the incidents to the police. The district attorney charged Ranscht with four counts of lewd and lascivious acts on a child under 14 years of age in violation of Penal Code section 288, subdivision (a) and two counts of sexually penetrating a minor in violation of Penal Code section 289, subdivision (h). (All statutory references are to the Penal Code.)

*1372In November 2007, Ranscht pleaded guilty to one count of sexually penetrating a minor in violation of section 289, subdivision (h). The trial court dismissed the remaining counts pursuant to the plea agreement. Ranscht’s counsel objected to the mandatory section 290, subdivision (c) sex offender registration requirement, arguing that the California Supreme Court’s decision in Hofsheier vested the court with discretion to determine whether to require registration for Ranscht’s violation of section 289, subdivision (h). The court, finding Hofsheier inapposite, declined to exercise its discretion. The court sentenced Ranscht to probation and directed that he register as a sex offender.

DISCUSSION

The United States and California Constitutions entitle all persons to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) This guarantee means “that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances.” (People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015].) A litigant challenging a statute on equal protection grounds bears the threshold burden of showing “that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549], original italics.) Even if the challenger can show that the classification differently affects similarly situated groups, “[i]n ordinary equal protection cases not involving suspect classifications or the alleged infringement of a fundamental interest,” the classification is upheld unless it bears no rational relationship to a legitimate state purpose. (Weber v. City Council (1973) 9 Cal.3d 950, 958-959 [109 Cal.Rptr. 553, 513 P.2d 601].)

In Hofsheier, the 22-year-old defendant pleaded guilty to voluntary oral copulation with a 16-year-old minor in violation of section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1192.) On appeal, the defendant contended requiring him to register as a sex offender denied him equal protection because a person convicted of voluntary sexual intercourse under section 261.5, subdivision (c) with a minor of the same age would not face mandatory sex offender registration. (Hofsheier, at p. 1194; see § 290, subd. (c).) The court held “[t]he only difference between the two offenses [was] the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors ‘[were] sufficiently similar to merit application of some'level of scrutiny to determine whether distinctions between the two groups justified] the unequal treatment.’ ” (Hofsheier, supra, 37 Cal.4th at p. 1200, quoting People v. Nguyen (1997) 54 Cal.App.4th 705, 715 [63 Cal.Rptr.2d 173].)

*1373The Hofsheier court then considered whether a rational basis existed for requiring the defendant to register as a sex offender “but not [requiring registration] of a person convicted of voluntary sexual intercourse with a minor of that age.” (Hofsheier, supra, 37 Cal.4th at p. 1201.) Recognizing that the registration provision’s purpose was to protect the public against recidivists (id. at p. 1204, fn. 6), the court concluded that adults convicted of voluntary oral copulation with 16- or 17-year-old adolescents did not “constitute a class of ‘particularly incorrigible offenders’ [citation] who require lifetime surveillance as sex offenders” (id. at pp. 1206-1207). Accordingly, the court held the statutory disparate treatment of oral copulation and unlawful sexual intercourse in section 290 violated equal protection as applied to adults convicted of voluntary oral copulation with 16- or 17-year-old adolescents. (Hofsheier, supra, 37 Cal.4th at p. 1207.)

In Manchel, the Second District Court of Appeal declined to apply this holding to a defendant convicted of voluntary oral copulation of a 15-year-old minor more than 10 years the defendant’s junior. (Manchel, supra, 163 Cal.App.4th at p. 1114.) The defendant argued that, like the Hofsheier defendant, he was similarly situated to an offender convicted of unlawful sexual intercourse, and that no rational basis existed for subjecting the two groups to different sex offender registration requirements. (Id. at p. 1112.) The Second District rejected this argument and focused instead on an offense that the defendant could have been convicted of had he engaged in sexual intercourse rather than oral copulation with his victim. (Id. at pp. 1113-1114.) Because the defendant’s victim was 15 years old and more than 10 years younger than he was, the court concluded that he could have been convicted of lewd and lascivious acts on a child under section 288, subdivision (c)(1) if he had engaged in sexual intercourse with his victim, thus subjecting him to mandatory registration. (Manchel, supra, 163 Cal.App.4th at p. 1114; see § 290, subd. (c).) By this judicial sleight of hand, the court determined that the defendant could not establish a similarly situated group not subject to mandatory registration and that his inability to make this threshold showing doomed his equal protection claim. (Manchel, supra, 163 Cal.App.4th at p. 1115.)

However, Manchel’s holding rests on the erroneous proposition that a person who engages in unlawful sexual intercourse with a minor under section 261.5 necessarily violates section 288, subdivision (a) or subdivision (c)(1) if the minor is less than 14 years old or if the minor is 14 or 15 years old and the offender is at least 10 years older, respectively. This assumption overlooks the fact that unlawful sexual intercourse is a general intent offense (People v. Pitts (1990) 223 Cal.App.3d 606, 876 [273 Cal.Rptr. 757]) whereas convictions under section 288, subdivision (a) or subdivision (c)(1) require the specific intent to “arous[e], appeal[] to, or gratify[] the lust, passions, or sexual desires of [the offender] or the child.” (§ 288, subd. (a).) (See People v. *1374Anderson (2008) 168 Cal.App.4th 135, 142 [85 Cal.Rptr.3d 262] [refusing to apply Hofsheier to defendant convicted of committing a lewd act on a child, which requires specific intent].) In People v. Pearson (1986) 42 Cal.3d 351, 356 [228 Cal.Rptr. 509, 721 P.2d 595], the California Supreme Court pointed out that an offender could commit sodomy—also a general intent offense— without simultaneously violating section 288. “For example, an act of sodomy can be committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent.” (Pearson, at p. 356.) Similarly, unlawful sexual intercourse committed without specific intent to “arous[e] ... the lust, passions, or sexual desires of [the offender] or the child” would violate section 261.5 without simultaneously violating section 288. (§ 288, subd. (a).) Moreover, the Manchel court ignores the possibility that the district attorney might offer, and an offender might accept, a plea to violating section 261.5 specifically to avoid the threat of mandatory sex offender registration. Thus, an offender who engages in unlawful sexual intercourse with a minor within section 288’s age limits does not necessarily face mandatory sex offender registration as Manchel suggests.

We also believe the Manchel holding reads too much into the Supreme Court’s statement that it was “not . . . concerned with persons convicted of a crime involving a forcible sexual act, or one involving a victim under the age of 14, because all such persons must register as sex offenders irrespective of whether they engaged in oral copulation or sexual intercourse.” (Hofsheier, supra, 37 Cal.4th at p. 1198.) This statement addresses facts not before the Supreme Court and appears little more than a “general observation[] unnecessary to the decision.” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1301 [77 Cal.Rptr.2d 296] (Fireman’s Fund).) While we acknowledge that we are bound by the Supreme Court’s precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [20 Cal.Rptr. 321, 369 P.2d 937]), we are also cognizant that we are not bound by dicta (Fireman’s Fund, supra, 65 Cal.App.4th at p. 1301). We do not believe that the Supreme Court intended the above quoted passage to rise to the level of a statement of law capable of contradicting Hofsheier’s central holding.

Ultimately, the Manchel court’s logic eludes us. It would have us completely ignore the crime of which a defendant is convicted and look instead to all of the crimes of which a defendant could have been convicted based on his conduct. This holding overlooks Hofsheier’s plain language, which focused on “persons who are convicted of voluntary oral copulation . . . , as opposed to those who are convicted of voluntary intercourse with adolescents in [the] same age group.” (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207, italics added.)

*1375Consistent with Hofsheier, we think the more appropriate course is to focus on the offense of which the defendant was convicted, as opposed to a hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge. “This approach jibes with the mandatory registration statutes themselves, which are triggered by certain convictions . . . , and not by the underlying conduct of those offenses per se.” (In re J.P. (2009) 170 Cal.App.4th 1292, 1299 [89 Cal.Rptr.3d 17]; see Hofsheier, supra, 37 Cal.4th at p. 1196 [“Section 290 requires anyone convicted of certain sex offenses to register for life as a sex offender.” (Italics added.)].) Courts which have applied Hofsheier beyond section 288a, subdivision (b)(1) have similarly focused on the offense to which the defendant challenging the mandatory registration requirement pleaded, without looking to the underlying acts. (See People v. Hernandez (2008) 166 Cal.App.4th 641, 651 [83 Cal.Rptr.3d 29]; People v. Garcia (2008) 161 Cal.App.4th 475, 482 [74 Cal.Rptr.3d 681].)

Under this approach, Ranscht is similarly situated with an offender convicted of unlawful sexual intercourse with a 13-year-old victim. Section 290.006 vests the trial court with discretion over whether to order the latter offender to register as a sex offender. The only factor distinguishing Ranscht from this similarly situated offender not subject to mandatory registration is the nature of the sexual act implicated by the offense to which Ranscht pleaded guilty. Accordingly, application of section 290, subdivision (c)’s mandatory registration provision to Ranscht would violate his constitutional right to equal protection of the laws.

DISPOSITION

The order of the trial court imposing mandatory sex offender registration on Ranscht under section 290, subdivision (c) is reversed. The matter is remanded for the superior court to exercise its discretion to determine whether to require Ranscht to register as a sex offender under section 290.006.

McDonald, J., concurred.