Filed 4/29/15 P. v. Crowe CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN CROWE,

Defendant and Appellant.

 D064862

 (Super. Ct. No. SCN315953)

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen 

M. Lewis, Judge. Affirmed.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth 

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

A jury convicted Bryan Crowe of one count of a lewd act upon a 14- or 15-yearold child who was at least 10 years younger than Crowe (Pen. Code, § 288, subd. (c)(1)).

1 The trial court sentenced Crowe to two years in state prison and ordered him to register 

as a sex offender under section 290. Crowe contends that (1) there was insufficient 

evidence that he acted with the requisite specific intent to support his conviction of 

committing a lewd act under section 288, subdivision (c)(1); (2) the trial court 

prejudicially erred by giving the jury an incorrect version of CALCRIM No. 350 that 

failed to properly instruct the jury regarding how to evaluate evidence of his good 

character; (3) mandatory sex offender registration under section 290 for his conviction 

under section 288, subdivision (c)(1) violates his rights under the equal protection clause 

of the United States Constitution; and (4) the residency restrictions imposed by section 

3003.5 should be stricken from his section 290 registration requirement because they 

constitute cruel and unusual punishment in violation of the state and federal constitutions. 

We affirm.

 

1 All statutory references are to the Penal Code unless otherwise specified. 
3

II.

FACTS

Prosecution evidence

In February 2013, 14-year-old Karina was living with her 25-year-old brother 

Nate, who was her legal guardian, and his wife Chayna. Crowe lived with his wife and 

children in the apartment across the hall from Nate's apartment. Karina was friends with 

Crowe's 14-year-old stepdaughter, Lindsay, and 12-year-old stepson, Tyler. 

On Thursday, February 14, 2013, Nate and Chayna went to Las Vegas for the 

weekend and left Karina alone in their apartment. Nate and Chayna told Crowe and his 

wife, Dineal, that Karina would be alone in the apartment on Thursday night only. They 

had planned for Karina's mother to pick up Karina after school on Friday, but Karina told 

her mother that she had to clean the apartment and take care of other things, and arranged 

to have her mother pick her up on Saturday. When Dineal found out that Karina was 

going to be home alone on Friday night, she gave Lindsay and Tyler permission to spend 

the night with Karina in Nate and Chayna's apartment. Crowe and Dineal told the 

children that they had to stay inside the apartment, but the children disobeyed.

Around midnight, Crowe ran into Karina in front of her apartment and asked her 

where his stepchildren were. Karina pointed to an area beyond a fence on the other side 

of the swimming pool. Crowe told Karina to go back inside her apartment and to stay 
4

inside and not open the door. Karina returned to her apartment and fell asleep on the 

couch. She did not go back outside that night.

At approximately 6:00 a.m., Crowe knocked on Karina's apartment door and 

Karina let him in the apartment. He told Karina that he was returning a pair of Nate's 

shoes that Tyler had been wearing the night before. He put the shoes on the floor and 

then sat on the couch. Karina testified that she sat next to Crowe on the couch because 

"[i]t only seemed polite." Crowe told Karina that she was in trouble because his wife had 

called Nate and told him what Karina and the other children had been doing the previous 

night. However, he added that he had not told Nate anything, and said that if Nate asked, 

he would tell him that Karina "didn't do those things." Karina told Crowe that she was 

"ready to face the consequences with [Nate]."

Crowe and Karina continued to talk on the couch and at some point, Crowe put his 

arm around Karina. Karina initially thought that Crowe was "just being a fatherly figure"

and that he was going to give her a hug. However, Crowe started rubbing her right arm 

"up and down," and then rubbed her right leg in way that caused the loose fitting 

basketball shorts that she was wearing to slide up her leg. Karina became "confused and 

scared" because that was "not supposed to happen." Crowe rubbed Karina's arm a second 

time and then rubbed her right breast. Karina stood up and crossed her arms because she 

felt "uncomfortable" and "weird." She did not want to do anything sexual with Crowe. 

She expected Crowe to apologize, but "[h]e acted like it never happened." Crowe stood 
5

up and said, "Okay. Well, I won't tell your brother." He then left the apartment and 

Karina locked the door "[s]o he wouldn't come back."

Karina lay back down on the couch for about 10 minutes and became "intensely 

scared" about just having been "touched by an older man." She called her mother to see 

what time she was going to pick her up, but did not mention the incident with Crowe. 

She then called Nate in Las Vegas and told him what had happened. Nate told her to call 

the police, and Karina called 911 immediately after she ended her call to Nate. She told 

the 911 dispatcher that Crowe had "tried to touch [her]." She said, "[H]e was like 

touching my arms and while he was talking to me and at first I thought he was just trying 

to be a father to me, then . . . he touched, like . . . my breast and then . . . I got scared so I 

got up . . . ." She told the dispatcher that Crowe had touched her breast over her shirt and 

had tried to "put [her] . . . shorts up" by rubbing her leg.

A police officer who contacted Karina in her apartment shortly after the 911 call 

testified that Karina was shaking and "had an almost bewildered look on her face." After 

Karina told the officer what had happened, the officer contacted Crowe outside his 

apartment and arrested him.

A detective interviewed Crowe at the police station at 10:00 a.m. The detective 

noticed that his eyes were bloodshot and watery and that his breath had an odor of 

alcohol. Crowe told the detective that he had drank 10 to 12 beers and some Fireball 

cinnamon whiskey the night before. He initially denied that he had gone to Karina's 

apartment that morning, but eventually admitted that he had sat on the couch next to 
6

Karina. He said that Karina "leaned up against [him]" and started to "snuggle." He 

admitted that he touched and rubbed her breast, and he demonstrated for the detective the 

manner in which he had touched her breast by opening and closing his hand in a 

squeezing motion. The detective asked, "So like for a split second you were thinking 

okay, this is gonna be somethin' sexual but then you caught yourself?" Crowe answered, 

"Yeah." The detective asked Crowe if his touching Karina was "like a sexual thing." 

Crowe responded, "Yeah, at first." Crowe later told the detective that Karina had "leaned 

back on [him]." The detective asked Crowe whether he thought Karina's leaning on him 

was "somethin' sexual" or "was just like an affectionate thing." Crowe said he thought it 

was "like sexual kinda like . . . ." The detective later asked Crowe if he responded the 

way he had because he thought that Karina was coming on to him sexually. Crowe said, 

"Yeah." 

Defense evidence

Dineal testified that she and Crowe had been together for about 10 years and were 

friends with Nate and Chayna. When Dineal and Crowe gave Lindsay and Tyler 

permission to stay with Karina the night before the incident, they told them not to leave 

Karina's apartment under any circumstances and that they would be checking to make 

sure the children were there. Dineal and Crowe then went out for dinner. While they 

were out, Crowe drank three 24-ounce beers and some sake. When they returned home, 

Crowe continued to drink beer and also drank shots of Fireball. Lindsay and Tyler went 
7

to Karina's apartment at around 10:00 p.m. Dineal and Crowe played poker with some 

friends until about 1:30 a.m., when Dineal went to bed.

Sometime after Dineal went to bed, Crowe came into the bedroom and told her 

that the children were not at Karina's apartment. Crowe and Dineal found the children 

outside. Dineal told Lindsay and Tyler to go inside their apartment and said she was 

going to call Nate and Chayna to tell them what was going on. Karina cried and begged 

Dineal not to tell Nate. Dineal said to Karina, "You're done," and called Nate. She 

ultimately spoke to Chayna and told her that Karina was running around the apartments at 

1:30 a.m. Dineal went back to bed between 2:30 and 3:00 a.m. Crowe stayed up and 

continued to drink beer. 

Dineal testified that during her relationship with Crowe, she had seen him interact 

with his daughter and other young women and children, and had never seen him engage 

in any sexually inappropriate conduct toward children. Shayla Owens, a family friend 

from Washington who had known Crowe for 10 years, since she was 11 years old, 

testified that she and her younger sister spent most weekends with Crowe and his family, 

and that her sister used to babysit for Crowe and Dineal. Owens felt comfortable being 

around Crowe and was comfortable with her sister being around him. She did not believe 

Crowe was a child molester.

Defense counsel read the testimony of Nate and Chayna from the preliminary 

hearing into the record. Chayna testified that Karina began living with her and Nate 

about four months before the incident. After Karina moved in, incidents of her lying to 
8

them and other behavioral problems occurred with increasing frequency. She was 

habitually late to school and had problems with her teachers. Nate and Chayna 

disciplined her by taking away her allowance and privileges, grounding her, and cutting 

her hair short. Chayna testified that Karina was manipulative and that she had gotten into 

arguments with Karina that caused a lot of tension in her and Nate's marriage.

Nate testified that before Karina moved in with him and Chayna, she had lived 

with her mother and then with Karina's and Nate's biological father. Nate felt that it 

would be best for Karina to move in with him and Chayna because Karina's mother 

lacked the means to care for her and their father had been neglectful. Nate and Chayna

had escalating problems with Karina and caught her in numerous lies. Nate testified, 

"[Karina] . . . not only came into our house and, like, kind of messed up mine and my 

wife's marriage, she also put us through a lot of strain and made me feel bad for her, even 

though she was basically lying to me the whole time."

When Karina called Nate on the morning of the incident, she sounded scared and 

was crying on the phone, which frightened Nate. Nate told Karina to write down 

everything that had happened leading up to when the police arrived after the incident. 

III.

DISCUSSION

A. Sufficiency of the evidence to support the conviction

Crowe contends that his conviction of committing a lewd act under section 288, 

subdivision (c)(1) must be reversed because the jury's finding that he acted with the 
9

requisite specific intent is not supported by substantial evidence. "To determine whether 

there is substantial evidence to support a conviction we must view the record in a light 

most favorable to conviction, resolving all conflicts in the evidence and drawing all 

reasonable inferences in support of conviction. We may conclude that there is no 

substantial evidence in support of conviction only if it can be said that on the evidence 

presented no reasonable fact finder could find the defendant to be guilty on the theory 

presented." (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529, citing People v. 

Johnson (1980) 26 Cal.3d 557, 578.)

A violation of section 288, subdivision (c)(1) is a specific intent crime. Section 

288, subdivision (a) provides: "[A]ny person who willfully and lewdly commits any 

lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a 

child who is under the age of 14 years, with the intent of arousing, appealing to, or 

gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a 

felony . . . ." (Italics added.) Section 288, subdivision (c)(1), provides: "Any person 

who commits an act described in subdivision (a) 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 

more than one year."

"[S]ection 288 prohibits all forms of sexually motivated contact with an underage 

child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually 
10

exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the 

perpetrator in touching the child is the controlling factor and each case is to be examined 

in the light of the intent with which the act was done. . . . If [the] intent of the act, 

although it may have the outward appearance of innocence, is to arouse . . . the lust, the 

passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the 

statute . . . .' [Citation.]" (People v. Martinez (1995) 11 Cal.4th 434, 444.) " '[T]he trier 

of fact looks to all the circumstances, including the charged act, to determine whether it 

was performed with the required specific intent.' [Citations.] Other relevant factors can 

include the defendant's extrajudicial statements . . . , the relationship of the parties 

[citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or 

avoid detection [citation]." (Id. at p. 445.)

We conclude that Crowe's conviction is supported by substantial evidence that he 

touched Karina's arm, leg, and breast with the specific intent of arousing, appealing to, or 

gratifying his or Karina's lust, passions, or sexual desires. It is undisputed that the 

incident occurred after Crowe entered Karina's apartment at approximately 6:00 a.m., 

when he knew she was alone in the apartment. Karina testified at trial that Crowe rubbed 

her right leg in a way that caused the shorts that she was wearing to slide up her leg, and 

she told the 911 dispatcher that Crowe tried to "put [her] . . . shorts up." She told the 911 

dispatcher that she got up from the couch because she became "scared" when Crowe 

touched her breast, and she testified that she became "confused and scared" because that 

was "not supposed to happen." Karina's trial testimony and her statements to the 911 
11

dispatcher that Crowe touched her in ways that made her feel uncomfortable and afraid 

support a reasonable inference that Crowe touched her with sexual intent.

Further, Crowe admitted to the detective who interviewed him on the morning of 

the incident that he squeezed Karina's breast with the thought that, in the detective's 

words, "this is gonna be somethin' sexual." When the detective again asked Crowe if his 

touching Karina was a "sexual thing," Crowe answered, "Yeah, at first." Crowe told the 

detective that Karina leaned on him in a way that was more sexual than affectionate, and 

that he thought she was coming on to him. Crowe's admissions to the detective that he 

touched Karina's breast with the thought that he and Karina both wanted a sexual 

encounter constitute overwhelming evidence that he touched Karina with the requisite 

sexual intent for a conviction under section 288, subdivision (c)(1).

B. Adequacy of the jury instruction regarding evidence of Crowe's good character

Crowe contends that trial court committed prejudicial error by instructing the jury 

with the version of CALCRIM No. 3502 that the prosecution requested instead of 

 

2 CALCRIM No. 350 provides: "You have heard character testimony that the 

defendant (is a __________ < insert character trait relevant to crime[s] committed > 

person/ [or] has a good reputation for _____________ < insert character trait relevant to 

crime[s] committed > in the community where (he/she) lives or works). [¶] Evidence of 

the defendant's character for _____________ < insert character trait relevant to crime[s] 

committed > can by itself create a reasonable doubt [whether the defendant committed 

_____________ < insert name[s]of alleged offense[s] and count[s], e.g. battery, as 

charged in Count 1 >]. However, evidence of the defendant's good character may be 

countered by evidence of (his/her) bad character for the same trait. You must decide the 

meaning and importance of the character evidence. [¶] [If the defendant's character for 

certain traits has not been discussed among those who know (him/her), you may assume 

that (his/her) character for those traits is good.] [¶] You may take that testimony into 
12

instructing the jury with the version that he requested. Crowe argues that the version of 

CALCRIM No. 350 that the court gave failed to properly instruct the jury regarding how 

to evaluate evidence of his good character.

Crowe requested the following version of CALCRIM No. 350: "You have heard 

testimony that the defendant is not a child molester. [¶] Evidence of the defendant's 

character can by itself raise a reasonable doubt whether the defendant committed a Lewd 

or Lascivious Act on a Child or and Attempted Lewd and Lascivious Act on a Child. [¶] 

You must decide the meaning and importance of the character evidence. [¶] Consider 

the testimony along with all the other evidence in deciding whether the People have 

proved that the defendant is guilty beyond a reasonable doubt."

The prosecution requested, and the court gave, the following version of 

CALCRIM No. 350: "You have heard character testimony that the defendant does not 

have the character for sexual deviancy. [¶] Evidence of the defendant's character for 

sexual deviancy can by itself create a reasonable doubt whether the defendant committed 

a Lewd and Lascivious Act on a child 14 or 15 years old as charged in Count One.[3] 

However, evidence of the defendant's good character may be countered by evidence of 

his bad character for the same trait. You must decide the meaning and importance of the 

 

consideration along with all the other evidence in deciding whether the People have 

proved that the defendant is guilty beyond a reasonable doubt."

3 The People submit that "[i]t can be reasonably presumed that the second line of 

the jury instruction contains a clerical error by omitting the words 'lack of.' It should 

have read: 'Evidence of the defendant's lack of character for sexual deviancy can by itself 

create a reasonable doubt . . . .' " (First italics added.)
13

character evidence. [¶] You may take that testimony into consideration along with the 

other evidence in deciding whether the People have proved that the defendant is guilty 

beyond a reasonable doubt."

Crowe's counsel objected to the statement in the prosecution's version of 

CALCRIM No. 350 that "evidence of the defendant's good character may be countered 

by evidence of his bad character for the same trait." Crowe's counsel argued that the 

statement was inappropriate because the prosecution had not presented any evidence of 

Crowe's bad character at trial. The prosecution argued in response that "the evidence in 

this case can establish contrary character." Crowe's counsel responded that it was 

inappropriate to view evidence of the present offense as evidence of bad character 

because "character evidence by its very nature is things about the person's past . . . ."

On appeal, Crowe contends that the statement in the instruction that his "character 

for sexual deviancy can by itself create a reasonable doubt" was erroneous and failed to 

properly instruct the jury as to how to evaluate and apply the good character evidence. 

Crowe argues that "[t]he result of the instruction as given to the jury was that the good 

character evidence was no longer sufficient in itself to create a reasonable doubt." 

Although read in isolation, the portion of the instruction stating that "[e]vidence of the 

defendant's character for sexual deviancy can by itself create a reasonable doubt whether 

the defendant committed [the charged offense]" (italics added) did not apprise the jury 

that evidence of Crowe's lack of character for sexual deviancy could by itself create a 

reasonable doubt, that meaning is reasonably clear from the preceding sentence, which 
14

states: "You have heard character testimony that the defendant does not have the 

character for sexual deviancy."

Crowe further argues on appeal, as he did in the trial court, that the phrase 

"evidence of the defendant's good character may be countered by evidence of his bad 

character for the same trait" should have been deleted from the instruction because the 

People did not present any evidence of his bad character (i.e., character for sexual 

deviancy) other than the evidence of his conduct relating to the charged crime. Crowe 

maintains that evidence of the charged crime is not evidence of bad character, and that 

allowing the jury to consider it as such "violated the prohibition against [presenting 

evidence of bad character] and eviscerated [his] due process right to have the jury decide 

each element of the charged offense beyond a reasonable doubt."

"A trial court may instruct on a theory only if it is supported by 'substantial 

evidence.' [Citation.] We review the trial court's assessment de novo." (People v. 

Quiroz (2013) 215 Cal.App.4th 65, 76.) If a jury instruction challenged on appeal is 

ambiguous, we consider whether it is reasonably likely the jury misunderstood and 

misapplied the instruction. (People v. Young (2005) 34 Cal.4th 1149, 1202.) The 

correctness of jury instructions is determined from the entire charge of the court [or 

instructions as a whole] rather than from a particular instruction or parts of an instruction. 

(Ibid.) In assessing the probable effect of the instruction on the jury, the reviewing court 

must also consider whether the arguments of counsel diminished any possible confusion 
15

about the challenged instruction or reinforced the correct view of the law stated in the 

instruction. (Ibid.)

We conclude that there was no evidentiary basis to instruct the jury that "evidence 

of the defendant's good character may be countered by evidence of his bad character for 

the same trait." The prosecution did not introduce evidence that Crowe had a character 

for sexual deviancy other than the evidence relating to the charged offense. Character 

evidence in the form of evidence of specific acts is either evidence of past acts—i.e., acts 

that predate the charged offense—or, in some cases, subsequent acts. (See People v. 

Myers (2007) 148 Cal.App.4th 546, 552-553 [Evidence Code section 1103 regarding 

character evidence of crime victim to prove conduct "contemplates that character 

evidence comprises something other than evidence of conduct at the time in question, 

because character evidence is used to show the person acted 'in conformity with' his or 

her character."]; People v. Balcom (1994) 7 Cal.4th 414, 421 [evidence that defendant 

committed rape and robbery after the charged offense was admissible to show common 

design or plan].) The People have not cited, and we have been unable to find, any 

authority supporting the proposition that evidence relating to a charged offense qualifies 

as evidence of bad character for the purpose of instructing the jury under CALCRIM 350 

that evidence of the defendant's good character may be countered by evidence of his bad 

character for the same trait. Viewing the evidence of the charged offense as character 

evidence is inappropriate because the charged act has yet to be proved.
16

Moreover, character evidence in the form of specific acts is generally inadmissible 

to counter character evidence in the form of opinion or reputation. As Crowe and the 

People both recognize in their briefs, CALCRIM No. 350 is largely based on Evidence 

Code section 1102, which provides: "In a criminal action, evidence of the defendant's 

character or a trait of his character in the form of an opinion or evidence of his reputation

is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the 

defendant to prove his conduct in conformity with such character or trait of character. [¶] 

(b) Offered by the prosecution to rebut evidence adduced by the defendant under 

subdivision (a)." (Italics added.)

As noted in the Law Revision Commission comments to Evidence Code section 

1102, "it is usually held that evidence of specific acts by the defendant is inadmissible to 

prove his guilt even though the defendant has opened the question by introducing 

evidence of his good character. . . . [¶] Section 1102 codifies the general rule under 

existing law which precludes evidence of specific acts of the defendant to prove character 

as circumstantial evidence of his innocence or of his disposition to commit the crime with 

which he is charged." (Cal. Law Revision Com. com., 29B, pt. 3B, West's Ann. Evid. 

Code (2009 ed.) foll. § 1102, p. 312, italics added.) The California Supreme Court in 

People v. Wagner (1975) 13 Cal.3d 612, 619 stated, "As the Law Revision Commission's 

comments to section 1102 make clear, evidence of specific acts of the accused are, as a 

general rule, inadmissible to prove his disposition to commit such acts (see also Evid.

Code, § 1101); this general rule is applicable 'even though the defendant has opened the 
17

question by introducing evidence of his good character.' " (See People v. Gin Shue

(1943) 58 Cal.App.2d 625, 634 [in questioning a witness called to testify about the 

defendant's reputation, neither the prosecution nor defense may inquire into the 

defendant's general misconduct; questioning is limited to the defendant's reputation and 

the credibility of the witness]; People v. Cordray (1962) 209 Cal.App.2d 425, 439-440 

[defendant may not use specific acts to establish his good character].)

In sum, the trial court erred in instructing the jury that "evidence of the defendant's 

good character may be countered by evidence of his bad character for the same trait,"

because the prosecution did not present any opinion or reputation evidence to counter 

Crowe's evidence of his good character. Rather, the prosecution requested that portion of 

CALCRIM No. 350 based solely on evidence of the charged offense. Evidence relating 

to the charged offense does not support an instruction that evidence of good character 

may be countered by evidence of bad character for two reasons: (1) evidence of the 

charged offense is specific-act evidence, which is generally inadmissible to counter 

evidence of reputation or opinion evidence as to character; and (2) to the extent that 

evidence of specific acts is ever admissible as character evidence, it does not include 

evidence of the charged offense.

Although the trial court erred in giving the jury the version of CALCRIM No. 350 

that the prosecution requested, we conclude that the error was harmless. Error in giving 

an instruction that is a correct statement of law but has no application to the facts of the 

case is an error of state law subject to the harmless error test set forth in People v. Watson
18

(1956) 46 Cal.2d 818, 836 (Watson). (People v. Guiton (1993) 4 Cal.4th 1116, 1129-

1130.) "Under Watson, reversal is required if it is reasonably probable the result would 

have been more favorable to the defendant had the error not occurred." (People v. 

Guiton, supra, at p. 1130.) We conclude that in light of the overwhelming evidence that 

Crowe is guilty of the charged offense, particularly his admissions to the police that he 

touched Karina's breast with the thought that he and Karina both wanted a sexual 

encounter, it is not reasonably probable that he would have obtained a more favorable 

outcome at trial if the court had not included the statement that "evidence of the 

defendant's good character may be countered by evidence of his bad character for the 

same trait" in the version of CALCRIM No. 350 that it gave the jury. 

C. Constitutionality of mandatory sex offender registration for violation of section 

288, subdivision (c)(1)

Crowe contends that mandatory sex offender registration under section 290 for his 

conviction under section 288, subdivision (c)(1) violates his rights under the equal 

protection clause of the United States Constitution because a person convicted of 

unlawful sexual intercourse with a minor under the age of 16, in violation of section 

261.5, subdivision (d),4 is similarly situated but is not subject to the same registration 

requirement. "Where, as here, a disputed statutory disparity implicates no suspect class 

 

4 Section 261.5, subdivision (d) provides: "Any person 21 years of age or older 

who engages in an act of unlawful sexual intercourse with a minor who is under 16 years 

of age is guilty of either a misdemeanor or a felony, and shall be punished by 

imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to 

subdivision (h) of Section 1170 for two, three, or four years."
19

or fundamental right, 'equal protection of the law is denied only where there is no 

"rational relationship between the disparity of treatment and some legitimate 

governmental purpose." ' [Citations.] 'This standard of rationality does not depend upon 

whether lawmakers ever actually articulated the purpose they sought to achieve. Nor 

must the underlying rationale be empirically substantiated. [Citation.] While the realities 

of the subject matter cannot be completely ignored [citation], a court may engage in 

" 'rational speculation' " as to the justifications for the legislative choice [citation]. It is 

immaterial for rational basis review "whether or not" any such speculation has "a 

foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a 

party must ' "[negate] every conceivable basis" ' that might support the disputed statutory 

disparity. [Citations.] If a plausible basis exists for the disparity, courts may not secondguess its ' "wisdom, fairness, or logic." ' [Citation.]" (Johnson v. Department of Justice

(2015) 60 Cal.4th 871, 881 (Johnson).)

Crowe's equal protection argument rests entirely on People v. Hofsheier (2006) 37 

Cal.4th 1185 (Hofsheier) and Court of Appeal decisions that followed its reasoning. The 

California Supreme Court in Hofsheier decided that imposing mandatory sex offender 

registration under section 290 on a 22-year-old defendant convicted of nonforcible oral 

copulation of a 16-year-old girl in violation of section 288a, subdivision (b)(1) violated 

the defendant's constitutional right to equal protection under the law because a person 

convicted of unlawful sexual intercourse with a minor in violation of section 261.5 was 

not subject to mandatory registration. (Hofsheier, supra, at pp. 1192-1193.) However, in 
20

Johnson, the California Supreme Court overruled Hofsheier and disapproved the Court of 

Appeal decisions that followed it. (Johnson, supra, 60 Cal.4th at p. 888.)

The Johnson court noted that "[a]mong the various sex offenses, unlawful sexual 

intercourse is unique in its potential to result in pregnancy and parenthood. The act of 

intercourse, by itself, nearly always carries this potential, while engaging in oral 

copulation or other nonintercourse sexual activity, by itself, never does. Given the 

potential life-altering consequences of intercourse, it may seem, at first blush, anomalous 

that section 261.5 is one of the only—if not the only—offenses proscribing sexual contact 

with a minor that is subject to discretionary, as opposed to mandatory, registration. 

(§ 290.006.)

"Though section 261.5 violations may seem just as deserving of mandatory 

registration as nonforcible oral copulation offenses, the legislative history of section 

261.5 dispels any notion that confining the availability of discretionary registration to 

intercourse offenders has no rational basis. 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 [employers] do not differentiate between "statutory rape" and "forcible 
21

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. [Citations.] This history 

confirms that the potential for pregnancy and parenthood has, in fact, influenced 

legislative decisionmaking regarding unlawful intercourse with minors." (Johnson, 

supra, 60 Cal.4th at p. 884, fn. omitted.)

The Johnson court further noted that the high teenage pregnancy rate resulting 

from illicit sex between teenage or younger girls and adult males, many of whom are 

repeat offenders who have fathered multiple children by different teenage mothers and 

accept little or no responsibility for the support of their children, costs the state billions of 

dollars in welfare and healthcare expenses to assist families headed by teenagers. 

(Johnson, supra, 60 Cal.4th at p. 886.) Consequently, "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. (§ 261.5, subd. (e)(1).) 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. (§ 261.5, subd. (e)(2).) These 
22

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. 

885-886.)

The Johnson court also noted that the Legislature had considered and ultimately 

rejected statutory amendments that would have imposed mandatory registration for 

section 261.5 offenders at least three times. (Johnson, supra, 60 Cal.4th at p. 886.) The 

Johnson court reasoned that "[b]ecause the Legislature has acted purposefully and 

consistently to preserve discretionary sex offender registration for section 261.5 

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.)

Finally, the Johnson court reasoned that " '[w]hen conducting rational basis 

review, we must accept any gross generalizations and rough accommodations that the 
23

Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational 

simply because there is an "imperfect fit between means and ends" ' [citations], or 

'because it may be "to some extent both underinclusive and overinclusive" ' [citations]. 

Consequently, any plausible reason for distinguishing between oral copulation and 

intercourse for purposes of mandatory registration need not exist in every scenario in 

which the statutes might apply. It is sufficient that the oral copulation activity prohibited 

by section 288a[, subdivision] (b) lacks the same inherent capacity to cause pregnancy as 

the sexual intercourse activity prohibited by section 261.5. [¶] At bottom, the 

Legislature is afforded considerable latitude in defining and setting the consequences of 

criminal offenses. [Citations.] In light of the legitimate purposes of sex offender 

registration, and the plausible and actual legislative concerns noted above, it cannot be 

said that the differentiated treatment of section 261.5 and section 288a offenders 'so 

lack[s] rationality' that it constitutes 'a constitutionally impermissible denial of equal 

protection.' [Citation.]" (Johnson, supra, 60 Cal.4th at p. 887.)

The reasoning in Johnson as to why mandatory registration for a violation of 

section 288a, subdivision (b)(1), does not violate equal protection applies with equal 

force to mandatory registration for a violation of section 288, subdivision (c)(1).5 

Accordingly, we reject Crowe's equal protection challenge.

 

5 We also agree with the reasoning of the Court of Appeal in People v. Cavallaro

(2009) 178 Cal.App.4th 103, 114 (Cavallaro), which rejected the same equal protection 

argument that Crowe makes in this case—i.e., that mandatory registration on a conviction 

of violating section 288, subdivision (c)(1) violated equal protection because a person 
24

D. Constitutionality of the residency restrictions imposed by section 3003.5

Crowe contends that the residency restrictions imposed by section 3003.5, 

subdivision (b) should be stricken from his section 290 registration requirement because 

they constitute cruel and unusual punishment in violation of the state and federal 

Constitutions.6 We reject that contention in light of People v. Mosley (2015) 60 Cal.4th 

 

convicted of unlawful, nonforcible sexual intercourse with a minor under the age of 16 in 

violation of section 261.5, subdivision (d) would not be subject to mandatory registration. 

(Cavallaro, supra, at p. 111.) The Cavallaro court rejected the defendant's equal 

protection challenge for four reasons: (1) section 288, subdivision (c)(1) includes a 

specific intent requirement and section 265.1, subdivision (d) does not; (2) there is a 

threshold age requirement for an offender under section 288, subdivision (c)(1) (the 

defendant must be at least 10 years older than the minor victim) that is not present under 

section 261.5, indicating that the Legislature may have concluded that it was necessary to 

require mandatory registration for the former offense because of the potential for 

predatory conduct related to the significant age difference between the adult and the 

minor; (3) Hofsheier is distinguishable because the age difference between a victim under 

section 288, subdivision (c)(1) (14 or 15) and the victim in Hofsheier (16), in addition to 

the age span between the victim and the defendant under section 288, subdivision (c)(1), 

reflect a legislative intent to protect sexually naïve 14- and 15-year-olds from predatory 

older adults; and (4) "a person who engages in sexual intercourse with a 14 or 15 year old 

and who is also at least 10 years older than the minor may be convicted of a lewd or 

lascivious act under section 288[, subdivision] (c)(1)." (Cavallaro, supra, at pp. 114-

115.) In contrast, if the 22-year-old-defendant in Hofsheier had engaged in unlawful, 

nonforcible sexual intercourse with the 16-year-old victim instead of oral copulation, he 

would not have been subject to mandatory registration. (Id. at p. 115.)

6 Crowe raises a facial challenge to section 3003.5, subdivision (b); he does not 

contend that the statute's residency restrictions are unconstitutional as applied. In In re 

Taylor (2015) 60 Cal.4th 1019 (Taylor), paroled registered sex offenders challenged the 

residency restrictions of section 3003.5, subdivision (b) as applied to them, and the 

California Supreme Court held that the restrictions are unconstitutional as applied to 

paroled registered sex offenders in San Diego County. (Taylor, supra, at p. 1023.) The 

petitioners in Taylor did not challenge the residency restrictions as constituting cruel and 

unusual punishment in violation of the state and federal Constitutions; rather, they alleged 

that the residency restrictions violated "their fundamental constitutional rights to 
25

1044, in which the California Supreme Court concluded that the residency restrictions 

under section 3003.5 do not constitute punishment.

The California voters enacted Proposition 83, the Sexual Predator Punishment and 

Control Act, also known as Jessica's Law, in November 2006. (In re E.J. (2010) 47 

Cal.4th 1258, 1263.) Proposition 83 added subdivision (b) to section 3003.5, which sets 

forth restrictions on where certain sex offenders subject to the lifetime registration 

requirement of section 290 may reside. (In re E.J., supra, at p. 1263.) Section 3003.5, 

subdivision (b) provides: "Notwithstanding any other provision of law, it is unlawful for 

any person for whom registration is required pursuant to Section 290 to reside within 

2000 feet of any public or private school, or park where children regularly gather." 

Crowe argues that section 3003.5, subdivision (b) is punitive because the Legislature 

intended it to constitute punishment and its residency restrictions have a punitive effect.

In Mosley, the California Supreme Court considered whether the residency 

restrictions of Jessica's Law increased the penalty for a crime under the reasoning of 

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), in which the United States 

Supreme Court "held that the Sixth Amendment generally requires a jury to find 'any fact 

 

intrastate travel, to establish and maintain a home, and to privacy and free association 

with others within one's home; and further effectively 'banish[]' them from establishing 

homes or residing anywhere in the county." (Taylor, supra, at p. 1036.) Although it is 

unclear from Taylor which specific constitutional provisions the residency restrictions 

allegedly violated, after noting the petitioners' allegations, the Taylor court stated: "The 

Fourteenth Amendment's due process clause ' "forbids the government to 

infringe . . . 'fundamental' liberty interests" ' in any manner ' "unless the infringement is 

narrowly tailored to serve a compelling state interest [i.e., strict scrutiny review]." '

[Citations.]" (Taylor, supra, at p. 1036.)
26

that increases the penalty for a crime beyond the prescribed statutory maximum.' " 

(Mosley, supra, 60 Cal.4th at p. 1038, quoting Apprendi, supra, 530 U.S. at p. 490, italics 

added by Mosley.) The Mosley court decided that if "a judge makes the findings 

underlying his or her discretionary order that a convicted criminal defendant must register 

as a sex offender, . . . the order [is not] invalid under Apprendi insofar as it includes 

registered sex offender residency restrictions imposed by Proposition 83 . . . ." (Mosley, 

supra, at p. 1048.)

The Mosley court rejected the defendant's contention, and the Court of Appeal's 

conclusion, that the residency restrictions of Jessica's Law are punitive. The Mosley 

court explained that " the residency restrictions of Jessica's Law are not, on their face, an 

added 'penalty' for [the defendant's] conviction to which Apprendi applies. Like sex 

offender registration requirements, the restrictions are not intended as punishment or 

retribution for the offense or offenses that led to their imposition. Rather, their purpose is 

to serve a legitimate regulatory goal—reducing the opportunity for persons convicted of 

sexually related crimes, who are at large in the community but still deemed dangerous, to 

reoffend in the future. The restrictions may lead to significant disabilities in individual 

cases, but in the abstract, they do not so resemble traditional forms of punishment, and 

are not so clearly punitive in effect, as to override their regulatory aim." (Mosley, supra,

60 Cal.4th at p. 1062.)

The Mosley court's analysis was guided by factors identified in Smith v. Doe 

(2003) 538 U.S. 84 (Smith) "as relevant to determining whether attempts to control 
27

dangerous sex criminals constitute punishment." (Mosley, supra, 60 Cal.4th at p. 1063.) 

The court began "with the settled principle that in the interest of protecting public safety, 

'an imposition of restrictive measures on sex offenders adjudged to be dangerous is "a 

legitimate nonpunitive governmental objective and has been historically so regarded." 

[Citation.]' [Citation.] At the outset, therefore, the inquiry is whether the state legislative 

authority, in adopting a law allowing a court to impose such restrictions, intended them as 

punishment, or instead meant to adopt a nonpunitive regulatory scheme." (Ibid., citing 

Smith, supra, at pp. 92, 93.)

If the intent was to enact a civil, nonpunitive regulatory scheme, the court " 'must 

further examine whether the . . . scheme is " 'so punitive either in purpose or effect as to 

negate [the State's] intention' to deem it 'civil.' " [Citation.] Because [courts] "ordinarily 

defer to the legislature's stated intent" [citation], " 'only the clearest proof' will suffice to 

override legislative intent and transform what has been denominated a civil remedy into a 

criminal penalty.' " (Mosley, supra, 60 Cal.4th at p. 1063, citing Smith, supra, 538 U.S. 

at p. 92.) The factors that are most relevant to the analysis of the effects of the regulatory 

scheme " 'are whether, in its necessary operation, the regulatory scheme: has been 

regarded in our history and traditions as a punishment; imposes an affirmative disability 

or restraint; promotes the traditional aims of punishment; has a rational connection to a 

nonpunitive purpose; or is excessive with respect to this purpose.' [Citation.] [The court 

analyzes] these factors 'in relation to the statute on its face. ' " (Ibid.)
28

Based largely on the findings set forth in Proposition 83 and the ballot arguments 

in support of the proposition, the Mosley court concluded that "the electorate had a 

regulatory, nonpunitive purpose." (Mosley, supra, 60 Cal.4th at p. 1065.) The court

therefore considered "whether the restrictions, if generally applicable to nonparolee 

registered sex offenders in California, nonetheless have such a necessary punitive effect 

as to override this nonpunitive intent," and concluded that they do not. (Ibid.) 

Crowe argues, as the Court of Appeal in Mosley concluded, that the residency 

restrictions of section 3003.5 are akin to the traditional punishment of banishment and 

have other punitive effects, such as forcing offenders to move away from established 

residences if a school or park opens nearby. (Mosley, supra, 60 Cal.4th at p. 1065.) The 

Mosley court reasoned: "There is no doubt that the residency restrictions of Jessica's Law 

can produce significant difficulties and inconveniences in particular areas and individual 

cases. . . . But we are not persuaded that they so resemble traditional punishment, or are 

necessarily so harsh, as to compel a conclusion that their punitive effect overrides their 

regulatory intent.

"Though potentially burdensome, the terms of the residency restrictions are 

limited. '[They] impose[] no physical restraint, and so [do] not resemble the punishment 

of imprisonment, which is the paradigmatic affirmative disability or restraint. [Citation.]' 

[Citation.] They infringe upon personal liberties far less than does the 'post-incarceration 

confinement' of dangerously disordered sex offenders, which the high court has 

recognized as ' "a legitimate nonpunitive government objective." ' [Citations.] They do 
29

not regulate a registered sex offender's daily activities, and they seem, on their face, no 

harsher 'than the sanction[] of occupational debarment, which [the high court has also] 

held to be nonpunitive. [Citations.]' [Citation.]

"Nor are the restrictions akin to banishment. One subject to them is not thereby 

excluded from the state or any part thereof. They do not dictate where he or she may 

travel, visit, shop, eat, work, or play. Even the law's domiciliary prohibitions are, by their 

terms, confined to specified geographic areas relevant to the regulatory purpose they 

serve. Hence, they do not, on their face, meet or approach the traditional definition of 

banishment—the entire dismissal, expulsion, or casting out from one's community, and 

into exile. [Citations.] . . . 

"Further, the restrictions do not take on the character of punishment by 

comparison to forms of conditional, supervised postconviction release, such as probation 

and parole, which might be considered punitive. [Citations.] As applied to nonparolees 

such as defendant, the residency restrictions involve no oversight or supervision by penal 

authorities. Their violation cannot result in revocation of a conditional release; rather, the 

only arguable sanction is 'a [criminal] proceeding separate from the individual's original 

offense.' [Citation.] The possibility of criminal prosecution for violation of the 

restrictions is simply calculated to give effect to a 'valid regulatory' measure, and does not 

make them punitive. [Citation.] 

"Similarly, there is little relevance to the fact that the restrictions, like criminal 

punishment, are aimed at deterring future crimes, and might have that effect. 'Any 
30

number of governmental programs might deter crime without imposing punishment. "To 

hold that the mere presence of a deterrent purpose renders such sanctions 

'criminal' . . . would severely undermine the Government's ability to engage in effective 

regulation." [Citations.]' [Citation.] Indeed, the primary deterrence of the residency 

restrictions is not a threat that wrongdoing will be met with sanctions—the premise of 

punishment. Rather, it is simply a way to reduce registered sex offenders' contact with 

children on whom they might prey by ensuring that such persons will not live near where 

children routinely gather.

"Finally, the real-life consequences of the residency restrictions of Jessica's Law 

may vary widely from person to person, and from case to case. Unlike registration 

requirements, which demand periodic affirmative acts from all registrants throughout 

their lifetimes [citation], the residency restrictions impose no additional obligations on 

registrants whose domiciles of choice are, and remain, in compliance with Jessica's Law. 

In sum, these restrictions do not necessarily inflict such onerous disabilities and 

restraints, or otherwise so resemble common or traditional forms of punishment, that they 

must be so labeled . . . despite their regulatory and nonpunitive intent." (Mosley, supra,

60 Cal.4th at pp. 1065-1067, fns. omitted.)

In light of Mosley's reasoning and conclusion that the residency restrictions of 

section 3003.5 do not constitute punishment, we conclude that the restrictions do not 

violate the federal and state constitutional prohibitions against cruel and unusual 

punishment.
31

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.