Filed 6/2/15 P. v. Howell CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE OF THE STATE OF 

CALIFORNIA, 

Plaintiff and Respondent, 

 v. 

ROBERT PRESTON HOWELL, 

Defendant and Appellant. 

F068038 

(Super. Ct. No. FP003966A) 

OPINION 

 APPEAL from order of the Superior Court of Kern County. Michael G. Bush, 

Judge. 

 Law Office of Stephanie L. Gunther and Stephanie L. Gunther for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Louis M. 

Vasquez, Amanda D. Cary and Charity S. Whitney, Deputy Attorneys General, for 

Plaintiff and Respondent. 

-ooOoo- 
2. 

A defendant convicted of certain sex offenses must register as a sex offender 

pursuant to Penal Code section 290.1 Section 290.5, subdivision (a) provides that some 

convicted sex offenders may obtain relief from the obligation to register by obtaining a 

certificate of rehabilitation and pardon (certificate of rehabilitation) pursuant to section 

4852.01. Section 4852.01, subdivision (c) permits a person convicted of a felony to file a 

petition for a certificate of rehabilitation under certain circumstances.2 However, section 

4852.01, subdivision (d) precludes persons convicted of several enumerated offenses 

from petitioning for a certificate of rehabilitation, including individuals convicted of 

violating section 288 (lewd and lascivious acts on a child under 14). 

Appellant Robert Preston Howell pled guilty to violating section 288 in 1985. He 

petitioned for a certificate of rehabilitation pursuant to section 4852.01, subdivision (c). 

His ultimate goal was to be relieved of the requirement to register as a sex offender 

pursuant to section 290.5. The trial court denied the petition finding Howell was 

ineligible for the certificate because he was convicted of violating section 288. Howell 

asserts subdivision (d) of section 4852.01 violates his constitutional right to equal 

protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) We 

disagree and affirm the order denying the petition. 

DISCUSSION 

“‘“The concept of the equal protection of the laws compels recognition of the 

proposition that persons similarly situated with respect to the legitimate purpose of the 

law receive like treatment.”’ [Citation.] ‘The first prerequisite to a meritorious claim 

 

1 All statutory references are to the Penal Code. 

2 The conditions specified in section 4852.01, subdivision (c) are (1) the accusatory 

pleading must first be dismissed pursuant to section 1203.4, (2) the petitioner may not 

have been incarcerated in any penal institution since the accusatory pleading was 

dismissed, (3) the petitioner cannot be on probation for the commission of any other 

felony, and (4) the petitioner presents evidence he or she has lived in the state for the five 

years preceding the filing of the petition. 
3. 

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.] 

This initial inquiry is not whether persons are similarly situated for all purposes, but 

‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” 

(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “In other words, we ask at the 

threshold whether two classes that are different in some respects are sufficiently similar 

with respect to the laws in question to require the government to justify its differential 

treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 

1202.) We are not concerned with whether the two proposed groups are similarly 

situated for all purposes, but only whether they are similarly situated for the purposes of 

the law challenged. (Cooley, supra, at p. 253.) 

If we conclude two groups are similarly situated for the purposes of the law 

challenged, we then must decide whether the statute in question violates equal protection 

principles by treating the two groups disparately. This question is evaluated using one of 

three levels of analysis depending on the type of issue presented. If the statute involves 

suspect classifications or touches upon fundamental interests, it is subject to strict 

scrutiny and can be sustained only if the law is necessary to achieve a compelling state 

interest. (Warden v. State Bar (1999) 21 Cal.4th 628, 640-641.) Classifications based on 

gender are subject to an intermediate level of review. (People v. Hofsheier (2006) 37 

Cal.4th 1185, 1200 (Hofsheier).) 

Howell admits his challenge falls into the third level of analysis, which generally 

applies to economic and social welfare legislation. This level of review “manifests 

restraint by the judiciary in relation to the discretionary act of a co-equal branch of 

government; in so doing it invests legislation involving such differentiated treatment with 

a presumption of constitutionality and ‘[requires] merely that distinctions drawn by a 

challenged statute bear some rational relationship to a conceivable legitimate state 

purpose.’ [Citation.]” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16.) 
4. 

“Moreover, the burden of demonstrating the invalidity of a classification under this 

standard rests squarely upon the party who assails it.” (Id. at p. 17.) 

While Howell’s stated goal is to obtain relief from the requirement that he register 

as a sex offender pursuant to section 290.5, the first impediment to this goal is his 

inability to obtain a certificate of rehabilitation pursuant to section 4852.01. We begin by 

noting what is not at issue in this appeal. While Howell asserts he is an excellent 

candidate for a certificate of rehabilitation, the trial court never reached this issue because 

it concluded he was statutorily ineligible. Nor does Howell contend the trial court 

improperly applied section 4852.01, subdivision (d) to him. Instead, Howell argues his 

constitutional right to equal protection of the laws is violated by section 4852.01, 

subdivision (d). 

Howell’s opening brief relied extensively on Hofsheier, and cases which relied on 

Hofsheier to find equal protection violations in various settings. After the briefs were 

filed, the Supreme Court decided Johnson v. Department of Justice (2015) 60 Cal.4th 871 

(Johnson), which overruled Hofsheier and disapproved of many of the cases that relied 

on Hofsheier. We gave each party an opportunity to file supplemental briefing on the 

effect of Johnson on this appeal. 

We begin our analysis with a brief review of Hofsheier, supra, 37 Cal.4th 1185. 

Hofsheier pled guilty to nonforcible oral copulation with a 16-year-old girl in violation of 

section 288a, subdivision (b)(1). As a result of this conviction, the trial court imposed the 

mandatory requirement that he register as a sex offender for life pursuant to section 290. 

Hofsheier argued the mandatory registration requirement violated his right to equal 

protection of the laws because a person convicted of nonforcible sexual intercourse with 

a minor (§ 261.5) was not subject to the mandatory registration requirement, but was 

subject to a registration requirement only if the trial court, in the exercise of its discretion, 

chose to impose the registration requirement. 
5. 

The Supreme Court identified the equal protection issue as involving “the adult 

offender convicted under section 288a[, subdivision ](b)(1) of a voluntary sexual act with 

a minor 16 years or older, a group that includes defendant. State law requires all such 

offenders to register for life as a sex offender. In contrast, an adult offender convicted of 

voluntary sexual intercourse with a minor 16 years or older is not subject to mandatory 

registration. The issue is whether this distinction violates the equal protection clause of 

the Fourteenth Amendment to the United States Constitution or of article I, section 7 of 

the California Constitution.” (Hofsheier, supra, 37 Cal.4th at p. 1198.) 

After reviewing relevant cases, the Supreme Court concluded that because the 

only difference between a violation of section 288a, subdivision (b)(1) and section 261.5 

was the nature of the sexual act, the two groups were sufficiently similar to merit equal 

protection scrutiny. (Hofsheier, supra, 37 Cal.4th at p. 1200.) 

The Supreme Court next applied the rational relationship test to determine if there 

was any reasonably conceivable state of facts that could provide a rational basis for the 

classification. (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) The Supreme Court 

concluded there was not a rational basis for the disparate treatment of the two groups. 

“Requiring all persons convicted of voluntary oral copulation with minors 

16 to 17 years of age to register for life as sex offenders, while leaving 

registration to the discretion of the trial court for those convicted of sexual 

intercourse with minors of the same ages, cannot be justified by the 

speculative possibility that members of the former group are more likely to 

reoffend than those in the latter group. To sustain the distinction, there 

must be some plausible reason, based on reasonably conceivable facts, why 

judicial discretion is a sufficient safeguard to protect against repeat 

offenders who engage in sexual intercourse, but not with offenders who 

engage in oral copulation. [Citation.] No reason has been suggested why 

judicial discretion is insufficient, and none comes to mind. No other state 

requires mandatory lifetime registration as a sex offender for anyone 

convicted of voluntary oral copulation with a minor 16 to 17 years of age, 

but not for someone convicted of voluntary sexual intercourse with minors 

of the same age. 
6. 

“No doubt there are some persons convicted of oral copulation with 

16- or 17-year-old minors for whom lifetime registration is appropriate 

because their conduct and criminal history suggest a high risk of 

recidivism, but the same can be said of some individuals convicted of 

unlawful intercourse with minors in that same age group. The existence of 

such potential recidivists under both statutes argues for discretionary 

registration depending on the facts of the case rather than mandatory 

registration for all persons convicted under section 

288a[, subdivision ](b)(1).” (Hofsheier, supra, 37 Cal.4th at pp. 1203-

1204.) 

The Supreme Court’s explained its conclusion in the holding: “We perceive no 

reason why the Legislature would conclude that persons who are convicted of voluntary 

oral copulation with adolescents 16 to 17 years old, as opposed to those who are 

convicted of voluntary intercourse with adolescents in that same age group, constitute a 

class of ‘particularly incorrigible offenders’ [citation] who require lifetime surveillance as 

sex offenders. We therefore conclude that the statutory distinction in section 290 

requiring mandatory lifetime registration of all persons who, like defendant here, were 

convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of 

someone convicted of voluntary sexual intercourse with a minor of the same age, violates 

the equal protection clauses of the federal and state Constitutions. This conclusion does 

not preclude the Legislature from requiring lifetime registration both for persons 

convicted of voluntary oral copulation and for those convicted of voluntary sexual 

intercourse, thus treating both groups the same.” (Hofsheier, supra, 37 Cal.4th at pp. 

1206-1207.) 

We now turn to Johnson, supra, 60 Cal.4th 871. Johnson pled guilty to 

nonforcible oral copulation with a minor under 16 in violation of section 288a, 

subdivision (b)(2). After Hofsheier was decided, Johnson filed a petition seeking relief 

from section 290’s mandatory registration requirement. The appellate court concluded 

the mandatory registration requirement violated Johnson’s right to equal protection and 
7. 

remanded the matter to trial court to determine if Johnson should be required to register 

under the discretionary provisions in section 290.006. 

The Supreme Court began its analysis by noting the compelling state interest in 

preventing recidivism in sex offenders, and the important role mandatory registration 

plays in achieving that goal. (Johnson, supra, 60 Cal.4th at p. 876.) The Supreme Court 

then explained why the equal protection analysis in Hofsheier was “fundamentally 

flawed,” and explained why it now concluded the equal protection clause was not 

violated in Hofsheier, or in Johnson’s case. (Johnson, supra, at p. 879.) 

The Supreme Court identified the issue as follows: “[A]n equal protection 

challenge can be sustained only if section 261.5 offenders and section 288a offenders are 

similarly situated, and if the challenger ‘ “ negative[s] every conceivable basis” ’ that 

might support section 261.5’s [nonforcible intercourse with a minor] omission from 

section 290’s list of offenses subject to mandatory registration. [Citations.]” (Johnson, 

supra, 60 Cal.4th at p. 882.) The Supreme Court determined “the nature and potential 

consequences of unlawful sexual intercourse provide actual and plausible rationales for 

the Legislature’s omission of section 261.5 from section 290’s list of offenses.” (Ibid.) 

Next, the Supreme Court explained that three of the rationales advanced by 

Hofsheier as support for the decision were erroneous. First, the Supreme Court rejected 

the theory that legislative inattention could explain the failure to remove section 288a’s 

nonforcible offenses from the mandatory registration requirement of section 290. 

(Johnson, supra, 60 Cal.4th at p. 882.) 

Second, the Supreme Court found support for the contention that pedophiles who 

engage in oral copulation, as opposed to sexual intercourse, are more likely to reoffend. 

“Studies indicate that pubescent minors may be more receptive to engaging in oral sex, 

which does not risk pregnancy and which many such minors believe is lower in risk for 

sexually transmitted diseases. [Citation.] As for pedophiles, who, by definition, target 

prepubescent minors, studies show that, ‘[t]ypically, pedophiles engage in fondling and 
8. 

genital manipulation more than intercourse,’ except in cases of incest, forcible 

encounters, and when pedophiles prefer older children. [Citation.] In light of the 

foregoing, the Legislature could plausibly assume that predators and pedophiles engaging 

in oral copulation have more opportunities to reoffend than those engaging in sexual 

intercourse, and, for that reason, are especially prone to recidivism and require ongoing 

surveillance.” (Johnson, supra, 60 Cal.4th at pp. 883-884.) 

Third, the Supreme Court concluded there were significant differences between 

unlawful sexual intercourse, and nonforcible oral copulation. Recognizing that unlawful 

sexual intercourse could result in pregnancy, the Supreme Court observed that it would 

appear anomalous that section 261.5 does not require mandatory registration. 

Nonetheless, the Supreme Court found the possible reasoning of the Legislature in the 

legislative history of section 261.5. 

“The 1970 legislation that separated the offenses of rape and unlawful 

sexual intercourse with a female under age 18—by moving the latter from 

the general rape statute (§ 261) to section 261.5—originated with the State 

Bar of California. [Citation.] In an analysis of that legislation, the State 

Bar’s legislative representative explained: ‘When there are consenting 

near-adults involved, but for some reason the girl’s parents or the Social 

Welfare Department wants to force the boy to support the child, it is 

unrealistic to have the connotation of “rape” attached to his crime. Many 

private employees do not differentiate between “statutory rape” and 

“forcible rape,” and refuse to hire a “rapist.” As a result, the capacity to 

earn money to support a child is severely handicapped. This bill merely 

seeks to eliminate this social stigma.’ [Citation.] Thus, in separating and 

renaming the offense of unlawful sexual intercourse, the Legislature sought 

to eliminate, for section 261.5 offenses, the social stigma associated with 

the rape label so that offenders could more readily obtain employment and 

support children conceived as a result of such intercourse. [Citation.] This 

history confirms that the potential for pregnancy and parenthood has, in 

fact, influenced legislative decisionmaking regarding unlawful intercourse 

with minors. 
9. 

“Indeed, more than two decades later, the Legislature made explicit 

findings that ‘[i]llicit sexual activity between adult males and teenage or 

younger girls in this state is resulting in the nation’s highest teenage 

pregnancy and birth rate,’ and that ‘[m]any of these adult males are repeat 

offenders who have fathered more than one child by different teenage 

mothers, yet accept little or no responsibility for their actions or for the 

support of their children.’ [Citation.] Emphasizing that ‘California spent 

$3.08 billion in 1985 to assist families headed by teenagers,’ but ‘would 

have saved $1.23 billion in welfare and health care expenses’ had 

parenthood been delayed, the Legislature declared that ‘[t]he laws 

prohibiting adults from having sexual relations with persons under the age 

of 18 years must be more vigorously enforced’ and that ‘[a]dult males who 

prey upon minor girls must be held accountable for their conduct and 

accept responsibility for their actions.’ [Citation.] Based on these findings, 

the Legislature amended section 261.5 to subject adults convicted of sexual 

intercourse with minors to graduated civil penalties (ranging from $2,000 to 

$25,000), based on the age difference between the minor victim and the 

adult offender. [Citation.] Any amounts so recovered must be applied 

toward recouping the costs in pursuing the penalties, with the remainder 

deposited in the Underage Pregnancy Prevention Fund. [Citation.] These 

civil penalties are not applicable to persons convicted of offenses involving 

sexual contact other than intercourse with minor victims. 

“Hence, the very real problem of teen pregnancy and its costly 

consequences, as well as legislative concern that stigmatization might 

interfere with employment opportunities and the support of children 

conceived as a result of unlawful intercourse, offer more than just plausible 

bases for treating section 261.5 offenders differently than other types of sex 

offenders. Providing for discretion in section 261.5 cases allows the trial 

court to order registration in appropriate situations, while maintaining 

flexibility in those cases where, for instance, registration might cause 

economic or other hardship to a child born to the minor victim and the adult 

offender.” (Johnson, supra, 60 Cal.4th at pp. 884-886.) 

Fourth, the Supreme Court noted the Legislature had considered and rejected on at 

least three separate occasions mandatory registration for individuals who violate section 

261.5. (Johnson, supra, 60 Cal.4th at p. 886.) “Subsequent to Hofsheier, and to this day, 

the Legislature has not acted to add section 261.5 to section 290’s list of offenses subject 

to mandatory registration. Because the Legislature has acted purposefully and 

consistently to preserve discretionary sex offender registration for section 261.5 
10. 

offenders, we may reasonably infer its public policy concerns would not be served by 

mandating registration for such offenders in order to cure the constitutional infirmity 

found by Hofsheier.” (Ibid.) The Supreme Court concluded that because the Legislature 

is afforded considerable latitude in determining the consequences of crimes, the inherent 

capacity to cause pregnancy provided a rational basis for distinguishing between 

nonforcible oral copulation and unlawful sexual intercourse. (Id. at p. 887) 

For these reasons, the Supreme Court overruled Hofsheier, and disapproved of the 

Court of Appeal decisions that applied Hofsheier’s rational to other sex offenses 

involving minors and others. (Johnson, supra, 60 Cal.4th at p. 887.) 

With these cases in mind, we turn to Howell’s arguments. Howell initially 

identifies the issues in this case as whether sections 290.5 and 4852.01 violate his right to 

equal protection of the laws. The majority of his argument, however, is directed at 

section 4852.01. 

The portion of his argument addressing section 290.5 asserts, in essence, that if he 

receives a certificate of rehabilitation, he is entitled to relief from the registration 

requirement. The case cited as support for his argument is D.M. v. Department of Justice

(2012) 209 Cal.App.4th 1439 (D.M.). However, the appellate court in D.M. relied on 

Hofsheier’s conclusion that violators of section 288a, subdivision (b)(1) were similarly 

situated to violators of section 261.5. The appellate court went on to reason that since 

290.5 automatically relieved a defendant convicted of violating section 261.5 from the 

mandatory registration requirement once a certificate of rehabilitation was obtained, 

equal protection principles required section 290.5 to also grant relief to a defendant that 

violated section 288a, subdivision (b)(1) once he or she obtained a certificate of 

rehabilitation. (D.M., supra, at pp. 1451-1452.) 

Johnson invalidates the reasoning of D.M. Accordingly, Howell will find no 

support for his argument in that opinion. Moreover, every defendant who violated the 

code sections identified by Howell are precluded from obtaining relief from mandatory 
11. 

registration by the provisions of section 290.5 (§ 290.5, subd. (a)(2)(L) precludes relief 

for defendants convicted of violating § 286, subd. (d)(2); § 290.5, subd. (a)(2)(O) 

precludes relief for defendants convicted of violating § 288a, subd. (d); § 290.5, subd. 

(a)(2)(Q) precludes relief for defendants convicted of violating § 288.7). 

Turning to section 4852.01, we will assume, without deciding, that Howell is 

similarly situated to defendants convicted of the other crimes he has identified. Howell 

asserts his right to equal protection is violated because section 4852.01 allows those other 

defendants to obtain a certificate of rehabilitation, but will not permit him to do so. 

We begin with section 288.7. A recent amendment to section 4852.01, 

subdivision (d) added defendants convicted of violating section 288.7 to the list of 

defendants who may not obtain relief pursuant to section 4852.01. (Stats. 2014, ch. 280 

§ 3.) Accordingly, any possible equal protection issue has been eliminated. 

Howell argues, apparently, that we should not consider this amendment in this 

opinion. However, as Howell recognizes in his opening brief, all plea agreements 

incorporate not only the existing law, but also the power of the state to amend the law or 

enact additional laws for the public good and in pursuance of public policy. (Doe v. 

Harris (2013) 57 Cal.4th 64, 66.) Accordingly, since the recent amendment to section 

4852.01 applies to Howell, indeed, since the amendment was intended to eliminate the 

issue on which Howell relies, we will apply current law and not limit our analysis to the 

law in effect at the time Howell filed his petition. 

The other two crimes identified by Howell are not included in section 4852.01, 

subdivision (d), but, assuming the two groups are similarly situated, we conclude, under 

Johnson, there is a rational basis for treating these two groups differently. Johnson

reiterated that rough accommodations made by the Legislature survive rational basis 

review. (Johnson, supra, 60 Cal.4th at p. 887.) Similarly, an imperfect fit between the 

means and end at which the Legislature is aiming also survives rational basis review. 

(Ibid.) Johnson’s emphasis of these two principles compels our conclusion. 
12. 

The two crimes at issue are section 286, subdivision (d)(2) and section 288a, 

subdivision (d)(2). The first section criminalizes forcible sodomy “while voluntarily 

acting in concert with another person, either personally or aiding and abetting that other 

person,” upon a victim under 14. The second section criminalizes forcible oral 

copulation “while voluntarily acting in concert with another person, either personally or 

aiding and abetting that other person,” upon a victim under 14. These two sections share 

in common the requirement that the defendant act in concert with another person. The 

crime of which Howell was convicted (§ 288) required that he personally commit a lewd 

and lascivious act on a person under 14. 

The Legislature could have concluded it would not preclude a defendant convicted 

of violating either section 286, subdivision (d)(2) or 288a, subdivision (d)(2) from 

applying for a certificate of rehabilitation because that defendant may not have personally 

committed the act of sodomy or oral copulation, but instead may have been convicted as 

the aider or abettor who was acting under the influence of the defendant committing the 

sexual act. In these circumstances, it is rational for the Legislature to conclude the aider 

or abettor should be able to obtain a certificate of rehabilitation. Even if this choice is a 

rough accommodation, and perhaps better options exist to address this issue, Johnson 

emphasized that such choices are for the Legislature and do not offend equal protection 

principles. Once again, we note that even with a certificate of rehabilitation and a 

pardon, a defendant convicted of violating either section 286, subdivision (d)(2) or 

section 288a, subdivision (d)(2) are precluded from obtaining relief from the mandatory 

registration requirement even if they were to obtain a certificate of rehabilitation. 

(§ 290.5, subd. (a)(2)(L) and (a)(2)(O)) 

DISPOSTION 

Because there is a rational basis for treating differently defendants who violate 

section 286, subdivision (d)(2) or section 288a, subdivision (d)(2) from those defendants 

who violate section 288, subdivision (a), Howell’s right to equal protection of the laws 
13. 

was not violated. Accordingly, the order denying Howell’s petition is affirmed. 

Howell’s unopposed request for judicial notice is granted. 

 _____________________ 

FRANSON, J. 

WE CONCUR: 

 _____________________ 

LEVY, Acting P.J. 

 _____________________ 

DETJEN, J.