Filed 5/28/15 Quigley v. Super. Ct. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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 This opinion has not been certified for publication 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 

FIFTH APPELLATE DISTRICT

JACK BARRY QUIGLEY, 

Plaintiff and Appellant, 

 v. 

SUPERIOR COURT OF FRESNO COUNTY, 

Defendant and Respondent; 

THE PEOPLE, 

Real Party in Interest and Respondent. 

F068812 

(Super. Ct. No. 12CECG04000) 

OPINION

THE COURT*

 APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. 

Cabrera, Judge. 

 Nuttall & Coleman and Roger T. Nuttall for Plaintiff and Appellant. 

 No appearance for Defendant and Respondent. 

 Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Catherine Chatman and Brian A. Segal, Deputy Attorneys General, for Real 

Party in Interest and Respondent. 

 

* Before Levy, Acting P.J., Detjen, J. and Franson, J. 
2. 

-ooOoo- 

 Appellant Jack Barry Quigley, entered a no contest plea to one misdemeanor count 

of annoying or molesting a child. (Pen. Code,1 § 647.6, subd. (a).) In addition to jail 

time and three years of probation, appellant was ordered to register for life as a sex 

offender pursuant to section 290. 

 Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), appellant 

petitioned the trial court to be relieved of the lifetime sex offender registration 

requirement as a violation of his right to equal protection of the laws. Based on People v. 

Brandao (2012) 203 Cal.App.4th 436 (Brandao), the trial court denied the petition. 

 The trial court properly denied appellant’s petition. The Brandao court’s 

reasoning is sound. Further, unlike the defendant in Hofsheier, the defendant in Brandao

was convicted of the same offense as appellant. Moreover, the California Supreme Court 

recently reexamined Hofsheier and, finding that Hofsheier’s constitutional analysis was 

faulty, overruled its earlier opinion. (Johnson v. Department of Justice (2015) 60 Cal.4th 

871.) 

DISCUSSION 

 Section 647.6, subdivision (a), a misdemeanor offense, punishes “[e]very person 

who annoys or molests any child under 18 years of age.” (§ 647.6, subd. (a)(1).) This 

section does not require touching but requires conduct that a normal person would 

unhesitatingly find irritating or annoying. (People v. Phillips (2010) 188 Cal.App.4th 

1383, 1396.) Further, it is firmly established that the conduct must be motivated by an 

unnatural or abnormal sexual interest in children in general or in a specific child. (Ibid.) 

By entering a no contest plea, appellant admitted every element of the crime 

charged. (People v. DeVaughn (1977) 18 Cal.3d 889, 895; People v. Voit (2011) 200 

Cal.App.4th 1353, 1364.) Therefore, contrary to appellant’s position, the trial court was 

 

1 All further statutory references are to the Penal Code. 
3. 

not required to make a specific finding that appellant’s conduct was motivated by an 

unnatural or abnormal sexual interest in his victim. Appellant’s no contest plea admitted 

this element of the offense. 

 In Hofsheier, the 22-year-old defendant was convicted of voluntary oral 

copulation with a minor who was 16 or 17 years of age under section 288a, subdivision 

(b)(1). (Hofsheier, supra, 37 Cal.4th at p. 1193.) This offense requires lifetime sex 

offender registration under section 290. Under the federal and state equal protection 

clauses, the Hofsheier court invalidated this mandatory sex offender registration because 

a same-aged defendant convicted of unlawful sexual intercourse with a same-aged minor 

is subject to discretionary registration. (Hofsheier, supra, at pp. 1206-1207.) The 

Hofsheier court noted that the only difference between the two offenses is the nature of 

the sexual act. (Id. at p. 1200.) 

 In Brandao, the court refused to apply this analysis to a violation of section 647.6, 

subdivision (a). The court noted that, while a section 647.6, subdivision (a) violation can 

potentially involve conduct that is much less overtly sexual than the felony sex offenses 

found subject to discretionary registration in Hofsheier, a conviction under section 647.6, 

subdivision (a) requires conduct that would unhesitatingly irritate or disturb a reasonable 

person. (Brandao, supra, 203 Cal.App.4th at p. 445.) Thus, the conduct is 

distinguishable from Hofsheier-type offenses in that it does not take place between two 

willing partners. 

 Further, unlike the voluntary sex offenses examined in Hofsheier, section 647.6, 

subdivision (a) is limited “to offenders whose conduct, in addition to being objectively 

irritating and disturbing, is motivated by an unnatural or abnormal sexual interest in 

children.” (Brandao, supra, 203 Cal.App.4th at p. 445.) This unique motivational 

requirement sets section 647.6, subdivision (a) apart. Accordingly, the court held, 

defendants convicted of annoying or molesting a child are simply not similarly situated to 
4. 

those convicted of Hofsheier-type offenses. “Hence, the difference in treatment between 

the two groups is neither arbitrary nor irrational.” (Brandao, supra, at p. 448.) 

 The Brandao court’s reasoning is sound. Moreover, Hofsheier is no longer valid. 

In Johnson v. Department of Justice, supra, 60 Cal.4th 871, the California Supreme Court 

overruled Hofsheier and disapproved all of the Court of Appeal decisions that applied 

Hofsheier’s rationale. 

DISPOSITION 

 The judgment is affirmed.