Filed 7/15/13 P. v. Silberman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Appellant,

v.

MARC ALAN SILBERMAN,

 Defendant and Respondent.

 G046591

 (Super. Ct. No. 09NF3074)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert R. 

Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Marissa 

Bejarano and Charles Ragland, Deputy Attorneys General, for Plaintiff and Appellant 

Mark S. Devore for Defendant and Respondent.
2

Defendant Marc Alan Silberman pleaded guilty to felony sexual penetration 

by foreign object with a person under 18 years of age, and misdemeanor annoying or 

molesting a child. The People contend the trial court erroneously failed to impose 

mandatory lifetime sex offender registration required under Penal Code section 290.1 We 

agree and reverse the judgment.

FACTUAL BACKGROUND

The following facts are taken from the preliminary hearing transcript and 

are apparently not disputed.

Victim No. 1 (count 1, § 289, subd. (h))

On October 22, 2009, Silberman was working as a substitute teacher at a 

high school where Victim No. 1 was a student. After seventh period, when all the other 

students had left for the day, Silberman locked the classroom door, kissed Victim No. 1, 

played with her breasts, and moved his finger in and out of her vagina several times. 

Silberman also took his erect penis out of his pants, and asked Victim No. 1 to put her 

mouth on it. Victim No. 1 refused, but at Silberman‟s request masturbated him until he 

ejaculated. Silberman told her not to tell anybody what had happened. Victim No. 1 was 

born December 27, 1992, and was about 16 years 10 months old.

Victim No. 2 (count 2, §647.6, subd. (a))

On October 9, 2009, Silberman was working as a substitute teacher at a 

high school where Victim No. 2 was a student. Silberman engaged in a conversation 

 

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

with Victim No. 2 by passing notes. Silberman asked Victim No. 2 if she were to go out 

with somebody, would she choose between students, staff, or faculty. Victim No. 2 said 

faculty and staff were too old. Silberman said he was not so old. Victim No. 2 said she 

had a girlfriend. Silberman asked Victim No. 2 if she wanted to “try something new.” At 

some point, Silberman came up behind Victim No. 2 and placed his hands on her waist 

while she was sitting down during class. Victim No. 2 was born February 20, 1992, and 

was about 17 years 7 months old.

Victim No. 4 (count 4, § 647.6, subd. (a))

In April or May 2009, while Victim No. 4 was walking home from high 

school, she accepted a ride from Silberman. After she entered the vehicle Silberman told 

Victim No. 4 that he wanted to stop by his mother‟s house to check on her. When they 

arrived there Victim No. 4 noticed nobody else was home. As Victim No. 4 walked 

towards the front door to leave, Silberman grabbed her by the wrists, pulled her close to 

him, and tried to kiss her twice over her objections. Victim No. 4 said she wanted to 

leave. Silberman told her not to tell anybody what happened, and then drove her home. 

Victim No. 4 was born December 11, 1992, and was about 16 years 4 or 5 months old.

Victim No. 5 (count 5, § 647.6, subd. (a))

In early October 2009, while Silberman was working as a substitute teacher 

at a high school. Silberman asked Victim No. 5, a student, to stay after class. After all of 

the other students had left, Silberman locked the door and asked Victim No. 5 if she had a 

boyfriend, and whether she would be interested in dating an older man. Silberman asked 

Victim No. 5 if she would be interested in being “friends with benefits.” Silberman gave 

Victim No. 5 his cell phone number and asked her to reply with a yes or no to his 

question but Victim No. 5 never responded. Victim No. 5 was born December 31, 1991, 

and was about 17 years 10 months old.
4

PROCEDURAL BACKGROUND

An information charged Silberman with one count of sexual penetration by 

using a foreign object with a person under 18 years of age, in violation of section 289, 

subdivision (h), and four counts of annoying and molesting a child in violation of section 

647.6, subdivision (a).2 Each count involved a separate alleged victim.

Silberman initially pleaded not guilty and filed a memorandum of law 

seeking a ruling mandatory lifetime sex offender registration under section 290 in this 

case would violate equal protection under People v. Hofsheier (2006) 37 Cal.4th 1185 

(Hofsheier), and People v. Ranscht (2009) 173 Cal.App.4th 1369 (Ranscht).

The People filed a response asserting mandatory lifetime sex offender 

registration under section 290 would not violate equal protection because Hofsheier and 

Ranscht are distinguishable. Appellant also argued, in the alternative, the court should 

impose discretionary lifetime sex offender registration under section 290.006.

At a pretrial hearing on January 13, 2012 the court announced in open 

court: “The court has read and considered the application by the defense and the 

opposition by the prosecution for the issue of registration. The tentative ruling is that the 

conduct is too egregious for the court to grant relief under Hofsheier, and the court will 

require registration under 290.”

But, after listening to the arguments of counsel the court ruled mandatory 

lifetime sex offender registration for the alleged violations of section 289, subdivision (h) 

and section 647 subdivision (a) would violate equal protection. The court then adopted a 

“compromise” proposed by defense counsel and stated “The court . . . will require 

registration for settlement purposes on this case for a period of five years. Thereafter, the 

 

2 Count 3 alleging a violation of section 647.6, subdivision (a) against Victim 

No. 3 was later dismissed under section 995.
5

registration provision will terminate upon successful completion of five years or an 

extended period of probation.”

The minute order describes the ruling in more detail. “Motion granted in 

part as follows: The Court orders defendant register pursuant to 290 Penal Code for the 5 

years of Probation. If defendant successfully completes Probation, the registration 

requirement will end with the end of Probation. Motion denied in part as follows: The 

defendant NOT registering at all pursuant to 290 Penal Code . . . . [¶] Defendant must 

register pursuant to 290 Penal Code on Counts 2, 3 and 4 [§ 647.6, subd. (a)]. Counsel 

stipulated that registration on Count 1 [§ 289, subd. (h)] would deny defendant Equal 

Protection. [¶] The People objected to the Court requiring five years of registration and 

having it end when Probation is successfully completed.”

A few minutes later Silberman accepted the court‟s indicated sentence and 

pleaded guilty. The court suspended imposition of sentence and placed him on five years 

formal probation on various terms and conditions including sex offender registration. 

Specifically, the court stated, “The court orders registration under 290 of the Penal Code 

for the period of time of the five year probationary period. Should probation terminate 

earlier, the registration will terminate automatically . . . . [¶] Should probation be 

extended for one reason or another beyond the five year period of time, the 290 

registration condition continues until the actual termination however long that be [sic] of 

the probationary status.”

The standard sex offender registration terms on the Tahl form (In re Tahl

(1969) 1 Cal.3d 122) were modified to conform to the ruling and state, “I understand I 

will have to register for the term of probation.” The sentencing minute order also states 

as a condition of probation, “Defendant [is] ordered to register pursuant to 290 Penal 

Code for the duration of Probation. Defendant must successfully complete Probation in 

order for the Registration to cease at the end of five years.”
6

The People appealed from, “The trial court‟s order of JANUARY 13, 2012, 

imposing an order affecting the substantial rights of the People, as well as an unlawful 

sentence, after defendant‟s guilty plea in the above-captioned action.”

DISCUSSION

The People contend the sentence is unlawful because lifetime sex offender 

registration under section 290 is mandatory for any defendant convicted of annoying or 

molesting a child under section 647.6, subdivision (a). We agree. 

Section 290 requires mandatory lifetime sex offender registration for all 

persons convicted of various enumerated offenses, including section 647.6, subdivision 

(a). However, the mandatory registration requirement has been held to violate equal 

protection for some of the enumerated offenses. For example, in Hofsheier, our Supreme 

Court held “the statutory distinction in section 290 requiring mandatory lifetime 

registration of all persons . . . convicted of voluntary oral copulation with a minor of the 

age of 16 or 17, but not someone convicted of voluntary sexual intercourse with a minor 

of the same age, violates the equal protection clauses of the federal and state 

Constitutions.” (Hofsheier, supra, 37 Cal.4th at p. 1207.)

“Following Hofsheier, a number of appellate courts have extended its 

holding to include additional felony offenses involving voluntary sexual activity between 

adults and minors of various ages and age differences.[3] [Citations.] [¶] Other appellate 

 

3 Ranscht is one such decision. In Ranscht, the appellate court extended 

Hofsheier’s holding to a defendant convicted of voluntary digital penetration of a 13-

year-old‟s vagina, under section 289, subdivision (h). The People concede under Ranscht

Silberman cannot be subjected to mandatory lifetime registration as a result of his 

conviction under section 289, subdivision (h) for his conduct with Victim No. 1.

 
7

courts have declined to extend Hofsheier’s holding to defendants convicted of various 

sexual offenses with minors . . . . [Citations.] [¶] The appellate courts that found no 

equal protection violation focused on the dissimilarity between the two classes of 

offenders . . . . In particular, they noted the following distinctions: (1) the young age of 

the minor and/or the age difference of more than 10 years between the defendant and the 

minor and (2) the specific intent requirement of the relevant statutes.” (People v. 

Brandao (2012) 203 Cal.App.4th 436, 443-444 (Brandao).)

At the time of sentencing here, no reported decision had considered the 

question of whether the holding of Hofsheier should be extended to persons convicted of 

annoying or molesting a child under section 647.6, subdivision (a). Less than one month 

later, the question was answered in Brandao, and the appellate court declined to extend 

the holding of Hofsheier to persons convicted of annoying or molesting a child under 

section 647.6, subdivision (a). (Brandao, supra, 203 Cal.App.4th at p. 448.) 

We believe the reasoning in Brandao is sound. The court there focused on 

the abstract elements of the offense rather than the particular facts, because “appellant‟s 

equal protection challenge [was] a facial one . . . .”4 (Brandao, supra, 203 Cal.App.4th at 

p. 442.) The Brandao court noted a violation of section 647.6, subdivision (a), can 

involve mere words or conduct much less overtly sexual than felony offenses found not 

subject to mandatory registration under Hofsheier. (Id. at p. 445.) “Whatever the nature 

of the conduct, however, to be convicted under section 647.6, subdivision (a), [the] 

conduct would need to have “„unhesitatingly irritated or disturbed a reasonable 

person . . . regardless of the defendant‟s intent.‟” [Citation.] Hence, section 647.6 is 

distinguishable from Hofsheier-type offenses, which do not include this requirement and 

which all involve voluntary conduct between two willing parties.” (Ibid.)

 

4 Courts which have applied Hofsheier byond section 288a, subdivision 

(b)(1) have similarily focused on the [elements of] offense . . . without looking to the 

underlying acts.” (Ranscht, supra, 173 Cal.App.4th at p. 1375.)
8

The Brandao court also focused on another key difference between 

voluntary sex offenses in Hofsheier-type cases and involuntary section 647.6, subdivision 

(a) offenses. The “latter statute is limited to a „comparatively narrow province,‟ i.e., to 

offenders whose conduct, in addition to being objectively irritating and disturbing, is 

motivated by an unnatural or abnormal interest in children.” (Brandao, supra, 203 

Cal.App.4th at p. 445, italics added.) “Finally, while older minors may be victims under 

section 647.6, [subdivision (a)], and while the perpetrator need not be more than 10 years 

older than the victim, the statute also encompasses the youngest of minors as well as 

perpetrators who are much older than their victims.” (Id. at p. 446.) 

Thus, the Brandao court concluded there is a rational basis for the statutory 

classification requiring lifetime sex offender registration for persons convicted of 

violating section 647.6, subdivision (a). (Brandao, supra, 203 Cal.App.4th at p. 446.) 

“[F]or all these reasons, section 647.6, subdivision (a), simply is not comparable to the 

voluntary sex offenses at issue in Hofsheier-type cases, in which the only difference 

between the crimes was the nature of the sexual act and, in some cases, the ages of the 

defendant and the victim.” (Ibid.) We agree with these conclusions. 

Silberman contends the Brandao court “erroneously dismissed defendant‟s 

reliance on Newland v. Board of Governors (1977) 19 Cal.3d 705, 708.” We are not 

persuaded. As the Brandao court put it “Newland is not particularly relevant to the 

present case in that the court‟s focus there was on the arbitrary distinction between 

misdemeanants and felons generally, for purposes of eligibility to request a certificate of 

rehabilitation.” (Brandao, supra, 203 Cal.App.4th at p. 447.) 

Silberman also contends Brandao does not apply because the equal 

protection challenge there was a facial one whereas the equal protection challenge here is 

to the mandatory lifetime sex offender registration requirement as applied to the facts of 

this case. However, as we will demonstrate, looking at the facts of this case does not lead 

to a different result.
9

In this context, of course we agree with Silberman‟s statement that as a 

general matter, “On appeal, factual findings made by the trial court must be accepted if 

supported by substantial evidence.” The problem is Silberman has not directed our 

attention to any such factual findings and our independent review of the record reveals 

none. The trial court‟s only statement regarding the facts of this case was made in the 

tentative ruling on the registration issue when the court announced, “The tentative ruling 

is that the conduct is too egregious for the court to grant relief under Hofsheier . . . . ” 

(Italics added.)

We agree with the trial court Silberman‟s conduct was egregious. He 

annoyed or molested four separate victims on four separate occasions.5 In each instance, 

he took advantage of his position of trust and confidence as a teacher to commit the 

offenses, and the victims were particularly vulnerable because they were his students. 

Furthermore, the manner in which he carried out the crimes indicates planning and 

sophistication. He arranged to be alone with Victim Nos. 1, 4 and 5, and locked the 

classroom doors before committing the crimes against Victim Nos. 1 and 5. In addition, 

the conduct was not voluntary on the part of Victim Nos. 2, 4 and 5. Silberman even 

specifically instructed Victim Nos. 1 and 4 not to tell anybody what happened. Finally, 

the age difference between Silberman and the victims was 10 years or more. The victims 

were all 16 or 17 years old and Silberman was 27 years old at the time. 

In sum, the facts of this case demonstrate Silberman was “motivated by an 

unnatural or abnormal sexual interest” in underage female students, something he 

expressly admitted in the factual basis for his guilty pleas. These facts further 

demonstrate Silberman has a propensity to commit such offenses which presents a 

significant risk of reoffending.

 

5 For these purposes we include Victim No. 1, even though his unlawful 

conduct with her was voluntary and he was charged in count 1 with violating section 289, 

subdivision (h) rather than section 647.6, subdivision (a).
10

Under these circumstances we perceive no equal protection violation in the 

mandatory lifetime sex offender registration requirement under section 290 either on its 

face or as applied to the facts underlying Silberman‟s section 647.6, subdivision (a) 

convictions. This is true even though he might not be subjected to mandatory lifetime 

registration under section 290 for engaging in voluntary intercourse, oral copulation or 

digital penetration with any one of these victims. None of the Hofsheier-type cases cited 

by Silberman involved multiple victims like this case. 

Based on all of the foregoing, we hold the trial court erred in failing to 

impose mandatory lifetime sex offender registration pursuant to section 290 as a result of 

Silberman‟s convictions under section 647.6, subdivision (a). It follows the sentence is 

not authorized and the judgment must be reversed. (People v. Serrato (1973) 9 Cal.3d 

753, 763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583.)

With regard to Silberman‟s contention he must be allowed to withdraw his 

plea in light of our holding, we note this is a matter which may involve disputed factual 

questions and, it is more appropriately directed to the trial court in the first instance. 
11

DISPOSITION

The judgment is reversed and the case is remanded to the trial court for 

resentencing or other proceedings consistent with this opinion.

THOMPSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.