Filed 5/11/23 P. v. McKenzie CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ANTWAN McKENZIE, JR.,

 Defendant and Appellant.

2d Crim. No. B319489

(Super. Ct. No. 21F-03938)

(San Luis Obispo County)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on April 26, 2023, be 

modified as follows:

On page 1, on the last line, the words “30 years old” are changed 

to “29 years old.”

There is no change in the judgment.
2

Appellant’s petition for rehearing is denied.

GILBERT, P.J. YEGAN, J. BALTODANO, J.
Filed 4/26/23 P. v. McKenzie CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ANTWAN McKENZIE, JR.,

 Defendant and Appellant.

2d Crim. No. B319489

(Super. Ct. No. 21F-03938)

(San Luis Obispo County)

Antwan McKenzie, Jr. appeals an order granting probation

following his conviction of contacting a minor, where he was at 

least 10 years older than the victim, with the specific intent to 

commit a sexual offense. (Pen. Code, §§ 288.3, subd. (a), 288, 

subd. (c)(1).)1

This appeal concerns McKenzie’s felony conviction 

resulting from his text communications to the 15-year-old 

babysitter of his children, with the specific intent to commit a 

sexual offense. At the time, McKenzie was 30 years old and 

1 All statutory references are to the Penal Code.
2

married to the babysitter’s aunt. On appeal, McKenzie raises 

issues regarding the trial court’s failure to reduce his felony 

conviction to a misdemeanor. (§ 17, subd. (b); In re Williamson

(1954) 43 Cal.2d 651 (Williamson).) He also challenges the 

imposition of sex offender registration, claiming that the lifetime 

registration requirement violates his constitutional rights to 

equal protection of the law. We reject these contentions and 

affirm. 

FACTUAL AND PROCEDURAL HISTORY

In 2020, McKenzie was married to A.S. and together they 

had five children. Fifteen-year-old S.E. frequently babysat the 

children. A.S. was S.E.’s aunt and McKenzie communicated by 

text with S.E. from time to time regarding the children. S.E. 

“didn’t think too much of it because [she was] watching the kids.”

Some of McKenzie’s text messages made S.E. 

uncomfortable because they were inappropriate. On August 6, 

2020, McKenzie texted that he desired to be in a Jacuzzi and 

later texted a photograph of a man lying in bed. McKenzie also 

texted that S.E. should delete his messages to her. McKenzie 

frequently asked S.E. where she was and with whom. S.E. did 

not inform her mother of these text messages because McKenzie 

was her uncle and she wanted to retain her paid babysitting job.

In September 2020, McKenzie texted S.E. and invited her 

to accompany his family on a trip to Pismo Beach. S.E. agreed. 

McKenzie had earlier referenced obtaining a Jacuzzi suite. S.E. 

and the family stayed in the same hotel room. 

During the Pismo Beach sojourn, McKenzie repeatedly 

texted S.E. and urged her to enjoy the Jacuzzi with him and 

smoke marijuana. He texted that his family was asleep and that 
3

he wanted to kiss S.E. McKenzie also offered S.E. money and 

stated he wanted to touch her “petite ass.” 

S.E. contacted her mother and later the Pismo Beach Police 

Department by text to complain regarding McKenzie. Upon 

S.E.’s return home, she and her mother filed a police complaint. 

Police officers retrieved the text messages from S.E.’s cellular 

telephone. Later, officers obtained a search warrant for 

McKenzie’s cellular telephone account from his mobile provider.

The jury convicted McKenzie of contacting a 15-year-old

minor, where he was at least 10 years older than the minor, with 

the specific intent to commit a sexual offense. (§§ 288.3, subd. 

(a), 288, subd. (c)(1).) The jury also separately found that 

McKenzie took advantage of a position of trust or confidence to 

commit the sexual offense. The trial court suspended imposition 

of sentence and placed McKenzie on formal probation for two 

years with the condition, among others, that he serve 200 days 

confinement in county jail. The court also ordered McKenzie to 

register for life as a sex offender pursuant to section 290. 

McKenzie appeals and contends that the trial court erred 

by: 1) not reducing his felony conviction to a misdemeanor 

violation of section 647.6, subdivision (a)(1), pursuant to 

Williamson, supra, 43 Cal.2d 651; 2) not treating his conviction 

as a wobbler misdemeanor pursuant to section 17, subdivision 

(b); and 3) imposing a lifetime sex registration requirement.

DISCUSSION

I.

McKenzie argues that the Williamson rule requires that his 

criminal conduct be punished pursuant to the “special statute”

section 647.6 (“Annoying or molesting children [under 18]”), 

rather than the “general statute” section 288.3.
4

Pursuant to Williamson, supra, 43 Cal.2d 651, if a general 

statute includes the same conduct as a special statute, the court 

infers that the Legislature intended that conduct be prosecuted 

exclusively under the special statute. Thus, the special statute is 

interpreted as creating an exception to the general statute for 

conduct that otherwise could be prosecuted under either statute. 

(People v. Murphy (2011) 52 Cal.4th 81, 86.) The Williamson

preemption rule is applicable 1) when each element of the general 

statute corresponds to an element on the face of the special 

statute, or 2) when it appears from the statutory context that a 

violation of the special statute will necessarily or commonly 

result in a violation of the general statute. (Murphy, at p. 86.) 

The rule does not apply when “a felony statute requires a more 

culpable mental state than a misdemeanor statute proscribing 

the same behavior.” (Hudson v. Superior Court (2017) 7 

Cal.App.5th 999, 1007.) 

Section 288.3, subdivision (a), provides: “Every person who 

contacts or communicates with a minor, or attempts to contact or 

communicate with a minor, who knows or reasonably should 

know that the person is a minor, with intent to commit an offense 

specified in Section . . . 288 . . . involving the minor shall be 

punished by imprisonment in the state prison for the term 

prescribed for an attempt to commit the intended offense.” 

Section 288, subdivision (c)(1), provides: “A person who commits 

an act described in subdivision (a) [lewd or lascivious act on child 

under 14 years] with the intent described in that subdivision, and 

the victim is a child of 14 or 15 years, and that person is at least 

10 years older than the child, is guilty of a public offense and 

shall be punished by imprisonment in the state prison for one, 

two, or three years, or by imprisonment in a county jail for not 
5

more than one year.” Section 647.6, subdivision (a)(1), provides: 

“Every person who annoys or molests any child under 18 years of 

age shall be punished by a fine . . . by imprisonment in a county 

jail not exceeding one year, or by both . . . .”

The Williamson rule is inapplicable here considering either 

the statutory elements test or the statutory violation test. Here 

the prosecutor alleged that McKenzie had the specific intent to 

commit lewd or lascivious conduct pursuant to section 288, 

subdivision (c)(1), which prohibits lewd or lascivious conduct with 

a minor who is 14 or 15 years old and a defendant more than 10 

years older than the minor. The elements of this statute include 

lewd or lascivious conduct and an age differential between the 

victim and defendant. Section 288.3 requires a contact or 

communication with a minor plus the specific intent to commit a 

section 288 or another enumerated sex offense. By contrast, 

section 647.6, subdivision (a)(1), requires annoyance or 

molestation of a child under 18 years and is a general intent 

crime. (People v. Fromuth (2016) 2 Cal.App.5th 91, 102.) A

violation of section 647.6, subdivision (a)(1), would not 

necessarily cause a violation of sections 288.3 and 288, 

subdivision (c)(1). 

In any event, application of the Williamson rule in the 

manner that McKenzie suggests would effectively render section 

288.3 a nullity. In enacting section 288.3, the electorate 

expressed its intent to protect children from Internet predators.

2 

(People v. Korwin (2019) 36 Cal.App.5th 682, 689-690.) As a 

general rule, the Williamson rule is simply a means of 

2 The Sexual Predator Punishment and Control Act: 

Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 

2006), § 6.)
6

determining and effectuating legislative intent and should not be 

applied to defeat express legislative intent. (People v. Jenkins 

(1980) 28 Cal.3d 494, 502-503 [court must consider context of 

special statute in determining statutory overlap].) 

II.

McKenzie asserts that the trial court did not exercise its 

discretion to treat his criminal conviction as a wobbler 

misdemeanor offense. He acknowledges that his attorney did not 

request misdemeanor treatment during sentencing and therefore 

contends that he received ineffective assistance of counsel. 

(People v. Weddington (2016) 246 Cal.App.4th 468, 491 [wobbler 

claim forfeited where defense counsel failed to request 

misdemeanor at sentencing].)

McKenzie has forfeited this argument because he did not 

request reduction of his offense to a misdemeanor. In his 

sentencing brief and at the sentencing hearing, McKenzie 

requested that the trial court place him on felony probation. A 

defendant may not remain silent at sentencing and later 

challenge the court’s discretionary sentencing choices. (People v. 

Weddington, supra, 246 Cal.App.4th 468, 491.) Reduction of a 

wobbler offense to a misdemeanor is a discretionary sentencing 

choice that must be raised at sentencing. (Ibid.)

Forfeiture aside, the plain language of section 288.3, 

subdivision (a), states that every violation “shall be punished by 

imprisonment in the state prison for the term prescribed for an

attempt to commit the intended offense.” This language tracks 

the language of section 17, subdivision (a), which states, “A felony 

is a crime that is punishable . . . by imprisonment in the state 

prison . . . . Every other crime or public offense is a misdemeanor 

except those offenses that are classified as infractions.” If a penal 
7

statute does not expressly characterize the crime as either a 

felony or a misdemeanor, the punishment specified “ ‘becomes the 

test.’ ” (People v. Terry (1996) 47 Cal.App.4th 329, 331.)

It is a legislative function to define crimes and prescribe 

punishment therefor. (People v. Park (2013) 56 Cal.4th 782, 789.) 

The Legislature has defined “a special class of crimes involving 

conduct that varies widely in its level of seriousness,” commonly 

referred to as wobbler offenses. (Ibid.) These crimes may be 

charged or punished as a felony or misdemeanor. (Ibid.) This 

alternate punishment must be authorized by statute; a trial court 

has no power to reduce a straight felony to a misdemeanor. 

(People v. Mauch (2008) 163 Cal.App.4th 669, 674 [the definition 

of crimes and determination of punishment are matters within 

the legislative domain].)

Moreover, the Legislature and the electorate may consider 

the harm occasioned by some criminal attempts “to be on a par 

with a completed crime.” (People v. Moses (2020) 10 Cal.5th 893, 

911.) “It is their prerogative to enact statutes that reflect that 

determination.” (Ibid.)

Section 288.3 was adopted by the electorate in November 

2006 as Proposition 83 with a stated purpose of protecting 

children from sexual predators who use the Internet to victimize 

children. (People v. Korwin, supra, 36 Cal.App.5th 682, 689-690.) 

Making all violations of section 288.3 a felony, even where the 

underlying target crime is punishable as either a felony or 

misdemeanor, is consistent with the declared purpose of 

Proposition 83. (People v. Medelez (2016) 2 Cal.App.5th 659, 

663.) 

Nor does the “rule of lenity” save McKenzie’s argument. 

That a completed lewd act with a minor could be treated as a 
8

misdemeanor is of no moment because section 288.3 has defined 

all violations as felonies. This classification serves the statute’s 

purpose of increasing punishment for predatory sexual offenders 

targeting minors. (People v. Cornett (2012) 53 Cal.4th 1261, 1271 

[rule of lenity does not apply where court can discern a contrary 

legislative intent].)

Furthermore, McKenzie did not receive the ineffective 

assistance of counsel regarding this newly asserted claim on 

appeal. Counsel does not render ineffective assistance by failing 

to make motions or objections that are meritless. (People v. Price

(1991) 1 Cal.4th 324, 387.)

III.

McKenzie argues that the lifetime sex offender registration 

for his section 288.3 conviction, based upon the target crime of 

section 288, subdivision (c)(1), violates his federal and state 

constitutional rights to equal protection of the law. (§ 290, subd. 

(d)(3)(C)(xi); People v. Chatman (2018) 4 Cal.5th 277, 288-289 

[two-part showing required to establish violation of equal 

protection of the law].) He points out that a violation of section 

288.3, based upon specific intent to commit other target offenses, 

such as sodomy, oral copulation, or penetration with a foreign 

object (absent certain age differentials), requires registration for 

only 10 or 20 years.

The constitutional guarantee of equal protection of the law 

means that persons similarly situated with respect to the purpose 

of the law must be similarly treated under the law. (People v. 

Keister (2011) 198 Cal.App.4th 442, 450 [rejecting various 

constitutional challenges to section 288.3].) If persons are not 

similarly situated for purposes of the law, an equal protection 

claim “ ‘fails at the threshold.’ ” (Ibid.)
9

McKenzie’s claim fails because all defendants convicted 

pursuant to section 288.3 are not similarly situated. The 

statutory punishment for various target crimes rests upon 

multiple factors such as the age of the victim, the relative age of 

the defendant, and the severity of the conduct intended. 

Punishment for the criminal offenses of sodomy and oral 

copulation with a minor increases significantly based upon the 

age of the victim and relative age of the defendant. Depending 

upon the relative ages, lifetime sex registration may be required. 

(§§ 286, subd. (c)(1), 287, subd. (c)(1), 289, subd. (j), 290, subd. 

(d)(3)(C)(xi.).) ”[A] defendant’s age can provide a meaningful 

distinction between offense categories for equal protection 

purposes.” (Legg v. Department of Justice (2022) 81 Cal.App.5th 

504, 512 [potential for predatory behavior resulting from age 

difference between adult and minor warrants mandatory sex 

offender registration].) The lifetime registration requirement 

rests upon a rational basis of the relative age difference between 

the defendant and the victim. (Ibid.; Johnson v. Department of 

Justice (2015) 60 Cal.4th 871, 887 [rational review requires 

acceptance of “gross generalizations and rough accommodations” 

by Legislature; perfect fit “ ‘ “between means and ends” ’ ” not 

necessary].)

DISPOSITION

The order of probation is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J. BALTODANO, J.
10

Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Arielle Bases, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.