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APPELLATE COURT AFFIRMS MANDATORY SEX OFFENDER REGISTRATION FOR INDECENT EXPOSURE, NONMANDATORY REGISTRATION FOR LEWD CONDUCT DOES NOT VIOLATE EQUAL PROTECTION – CALIFORNIA PENAL CODE SECTION 290, PENAL CODE SECTION 314(1), PENAL CODE SECTION 647(A)

On June 29, 2010, the California Court of Appeal, Fourth District, decided People v. Honan, which ruled that mandatory sex offender registration for those convicted of indecent exposure but discretionary registration for those convicted of lewd conduct did not violate equal protection.

On February 17, 2008, defendant Donald Honan and Jose Martinez-Gutierrez were at a sauna in a gym. Martinez-Gutierrez testified that while looking at Honan, Honan smiled and stroked his own erect penis, which he had released from his shorts.

Martinez-Gutierrez testified that he was uncomfortable, left the sauna, but later returned. According to Martinez-Gutierrez, Honan was still there and he resumed exposing himself and stroking his penis. Honan was arrested, charged, and convicted of lewd conduct (California Penal Code section 647(a)) and indecent exposure (California Penal Code section 314(1)).

At sentencing, the trial court stated that it felt constrained by California Penal Code section 290’s requirement that Honan register as a sex offender because of his indecent exposure conviction. Absent the mandatory requirement in Penal Code section 290, the court would not have ordered Honan to register as a sex offender. Honan appealed on equal protection grounds.

An equal protection violation exists if, under the appropriate standard of review, similarly situated people are treated differently. The court of appeal rejected Honan’s claim that because identical conduct can support lewd conduct and indecent exposure convictions, no rational basis existed for the different sex offender requirements.

The court of appeal noted that, for an equal protection claim, the claimant must argue that he belongs to a group of similarly situated people. Though lewd conduct and indecent exposure are related offenses, the court pointed out that lewd conduct can be violated by merely reckless sexual behavior, whereas indecent exposure requires a willful commission of a sexually inappropriate manner. Due to the greater intent requirement for indecent exposure, the appellate court found that those convicted of lewd conduct and indecent exposure were not similarly situated and that the mandatory sex offender registration for indecent exposure did not violate equal protection.

Under California Penal Code section 647(a) and related case law, lewd conduct is willfully touching an intimate part of the body while in a public place with the intent to sexually gratify or offend. To be convicted, the person must know or should reasonably know that other people could potentially witness the sexual behavior. Lewd conduct is a misdemeanor punishable by up to six months in jail, up to a $1,000 fine, or both. The trial court may, but is not mandated to, require that the person register as a sex offender. (California Penal Code section 290.006.)

Under California Penal Code section 314(1), indecent exposure exists when a person willfully exposes his genitals in another’s presence who might be offended by the exposure, and the person exposed intended to direct public attention to himself for his own sexual gratification or to offend another. Indecent exposure is a misdemeanor punishable by up to six months in jail, up to a $1,000 fine, or both. In addition, under California Penal Code section 290(c), a person convicted of indecent exposure must register as a sex offender.

If you or someone you know has been accused of a sex crime, you will need a competent sex crimes defense attorney who will diligently defend you, especially considering the grave consequences of an adverse result. At Wallin & Klarich, we have over 30 years experience defending sex crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

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