In re Martin M.

Filed 3/1/04 In re Martin M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re MARTIN M., A Person Coming
Under the Juvenile Court Law.
THE PEOPLE, H025631
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. J121122)
MARTIN M.,
Defendant and Appellant.
_____________________________________/
Appellant Martin M. admitted allegations in a Welfare and Institutions
Code section 602 petition that he had committed the offenses of oral copulation
with a minor (Pen. Code, § 288a, subd. (b)(1) and misdemeanor unlawful sexual
intercourse with a minor (Pen. Code, § 261.5, subd. (b)). The court declared the
oral copulation offense to be a felony and set Martin’s maximum time of
confinement at three years and two months. Martin was returned home on
probation to serve a 90-day juvenile hall commitment under the electronic
monitoring program (EMP). On appeal, Martin claims that treating the oral
copulation offense as a felony violates his right to equal protection because there
is no adequate justification for treating oral copulation more harshly than sexual

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intercourse. We agree and order the juvenile court to declare the oral copulation
offense to be a misdemeanor and to recalculate Martin’s maximum time of
confinement.
I. Background
In June 2000, at the age of 15, Martin was declared a ward and returned
home on probation after he admitted a misdemeanor allegation in a Welfare and
Institutions Code section 602 petition that he had exhibited a deadly weapon (a
baseball bat) in a threatening manner (Pen. Code, § 417, subd. (a)(1)). He served a
60-day juvenile hall commitment at home under EMP. Martin successfully
completed his probation, and the case was dismissed in March 2002.
In November 2002, a new Welfare and Institutions Code section 602
petition was filed alleging that, in October 2002, 17-year-old Martin had
committed forcible rape in concert (Pen. Code, § 264.1), forcible rape (Pen. Code,
§ 261, subd. (a)(2)) and forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)).
When questioned by the police, Martin readily admitted having had sexual
intercourse with the 14-year-old victim and also admitted that the victim had
orally copulated him. Martin insisted that these activities were consensual.
In December 2002, the petition was amended to add allegations that Martin
had committed misdemeanor unlawful sexual intercourse with a minor (Pen. Code,
§ 261.5, subd. (b)) and felony oral copulation with a minor (Pen. Code, § 288a,
subd. (b)(1)). Martin admitted these two allegations, and the original allegations
were dismissed at the prosecutor’s request. 1 The court declared the oral
copulation offense to be a felony. Martin’s trial counsel objected to this
1 There is no indication in the record that Martin’s admissions were entered
pursuant to a plea agreement of any kind. Martin told the court that he was not
admitting the allegations because of any “promises” that had been made to him.

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declaration. “I don’t think there’s a rational basis for the minor to be charged with
a felony oral copulation with a minor when the maximum that he can be punished
for actually having intercourse is a misdemeanor . . . .” The court overruled his
objection: “The Legislature in their wisdom has determined that there are certain
acts that are more serious than the other.”
At the January 2003 dispositional hearing, the juvenile court accepted the
probation department’s recommendation that Martin be declared a ward and
returned home on probation to serve a 90-day juvenile hall commitment at home
on EMP. Martin’s maximum time of confinement was set at three years and two
months.
Martin’s trial counsel filed a motion asking the court to reduce the oral
copulation offense to a misdemeanor because treating it as a felony violated
Martin’s right to equal protection. In opposition, the prosecutor asserted that oral
copulation was “a more degrading act for the victim.” After a February 2003
hearing on the motion, the court denied the motion. “I think that the state is within
its right to limit certain behavior, to classify it as either a felony or misdemeanor,
and to differentiate between various kinds of sex without the necessity of
justifying it based upon what is more serious.” Nevertheless, the court set the
matter for another hearing in June 2003 to consider a reduction of the oral
copulation offense to a misdemeanor under Penal Code section 17, subdivision
(b)(5).2 “And I fully expect, given what I have read in terms of his short period of
time that he’s been on probation, that if he keeps proceeding in that direction, I
think it’s a sure thing. [¶] I also invite you to appeal the court’s decision in the
2 To our knowledge, the juvenile court has not reduced the oral copulation offense
to a misdemeanor.

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hopes of having a . . . case that’s more on point.” Martin filed a timely notice of
appeal.
II. Analysis
A violation of Penal Code section 288a, subdivision (b)(1) is alternatively
punishable as either a felony or a misdemeanor. “[A]ny person who participates in
an act of oral copulation with another person who is under 18 years of age shall be
punished by imprisonment in the state prison, or in a county jail for a period of not
more than one year.” However, a violation of Penal Code section 261.5,
subdivision (b) is punishable only as a misdemeanor.3 “Any person who engages
in an act of unlawful sexual intercourse with a minor who is not more than three
years older or three years younger than the perpetrator, is guilty of a
misdemeanor.”4
Martin asserts that the distinction that these statutes draw between the
punishment for unlawful sexual intercourse and the punishment for unlawful oral
copulation lacks adequate justification and therefore violates his right to equal
protection.
“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. It is often stated that [t]he first prerequisite to a
meritorious claim 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
3 Unlawful sexual intercourse in violation of Penal Code section 261.5 where the
perpetrator is more than three years older than the victim is alternatively
punishable as either a felony or a misdemeanor. (Pen. Code, § 261.5, subds. (c),
(d).)
4 Martin was two years, six months and eight days older than the victim.

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unequal manner. The use of the term ‘similarly situated’ in this context refers
only to the fact that [t]he Constitution does not require things which are different
in fact or opinion to be treated in law as though they were the same. There is
always some difference between the two groups which a law treats in an unequal
manner since an equal protection claim necessarily asserts that the law in some
way distinguishes between the two groups. Thus, an equal protection claim cannot
be resolved by simply observing that the members of group A have distinguishing
characteristic X while the members of group B lack this characteristic. The
‘similarly situated’ prerequisite simply means that an equal protection claim
cannot succeed, and does not require further analysis, unless there is some
showing that the two groups are sufficiently similar with respect to the purpose of
the law in question that some level of scrutiny is required in order to determine
whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th
705, 714, citations and quotation marks omitted.)
Here, the members of both groups engaged in consensual sex acts with
minors and are no more than three years older or three years younger than their
victims. The sole distinction between the members of the two groups is the nature
of the sex act: members of one group engaged in sexual intercourse while
members of the other group engaged in oral copulation. The primary legislative
intent underlying these proscriptions is to protect minors from the exploitation to
which they are “uniquely susceptible.”5 (People v. Scott (1994) 9 Cal.4th 331,
5 The proscription on unlawful sexual intercourse with a minor is also intended to
help prevent minors from becoming pregnant. However, the designation of
unlawful sexual intercourse as a misdemeanor where the perpetrator and the
victim are within three years of each other’s age, as opposed to a potential felony
when the perpetrator is more than three years older than the victim, does not
reflect any reduction in the risk of pregnancy but solely a reduction in the risk that
exploitation is involved. Sexual intercourse between a 15-year-old and a 17-year-
old poses at least the same risk of pregnancy as sexual intercourse between a 15-

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341-342.) Both sexual intercourse with a minor and oral copulation with a minor
involve the potential for sexual exploitation of a minor. While the acts themselves
are distinct, those who engage in these acts are sufficiently similar with respect to
the primary purpose of these proscriptions to justify further scrutiny of the
punitive distinction between them.
The Attorney General argues that there is not sufficient similarity to merit
further scrutiny because the proscription on unlawful sexual intercourse with a
minor is a narrow proscription that applies only to male perpetrators and female
victims while the proscription on oral copulation with a minor is a broad
proscription that extends to perpetrators and victims of either gender. Not so. The
proscription on unlawful sexual intercourse is gender neutral. While, under
California law, “sexual intercourse” is an act of penile-vaginal intercourse that
may only occur between a male and a female (see People v. Holt (1997) 15
Cal.4th 619, 675-676), Penal Code section 261.5’s proscription does not identify
the gender of the perpetrator or the victim. Thus, either a male or a female may
violate the proscription against unlawful sexual intercourse with a minor by
engaging in sexual intercourse with a minor of the opposite gender.
The only way in which the oral copulation with a minor proscription is
more broad is that it may apply to an act between two males or between two
females. Because Martin and his victim were not of the same gender, we have no
occasion here to consider whether punishing consensual homosexual sex acts more
harshly than consensual heterosexual sex acts violates the U.S. Constitution. We
need only consider the constitutionality of punishing consensual oral copulation
between a male and a female whose ages differ by no more than three years more
year-old and a 22-year-old, but the risk that the 15-year-old is being exploited is
increased where a much older individual is the perpetrator.

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harshly than consensual sexual intercourse between a male and a female whose
ages differ by no more than three years.
“The next step in analyzing an equal protection challenge is a determination
of the appropriate standard of review.” (Nguyen at p. 715.) A classification that
subjects members of one group to misdemeanor punishment while subjecting
similarly situated members of another group to felony punishment “affects a
fundamental interest” and therefore must be subjected to strict scrutiny. (Nguyen
at p. 717.) Here, those who perpetrate unlawful sexual intercourse with a minor
and are within three years of the minor’s age are subjected to misdemeanor
punishment while those who perpetrate unlawful oral copulation with a minor and
are within three years of the minor’s age are potentially subject to felony
punishment. Consequently, the classification affects a “fundamental interest” and
must be subjected to strict scrutiny.
“[O]nce it is determined that the classification scheme affects a
fundamental interest or right the burden shifts; thereafter the state must first
establish that it has a compelling interest which justifies the law and then
demonstrate that the distinctions drawn by the law are necessary to further that
purpose.” (Nguyen at p. 716, citation and quotation marks omitted.) Here, the
state has failed to establish that it has a compelling interest that justifies the precise
distinction drawn here. (See People v. Jones (2002) 101 Cal.App.4th 220, 233-
237 (Mihara, J. dissenting).)
The Attorney General maintains that the distinction may be justified by the
Legislature’s presumed conclusion that oral copulation is a more prevalent
problem. He reasons that “minors are more willing to engage in alternatives to
sexual intercourse such as oral copulation, which cannot result in pregnancy.”
This proposed justification is far from compelling. Both proscriptions are
intended to protect minors from exploitation. Unlawful sexual intercourse with a

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minor, unlike oral copulation with a minor, actually creates greater risks because a
pregnancy may result. This increased risk to minors could only justify harsher
punishment for sexual intercourse with a minor not harsher punishment for oral
copulation with a minor.
We can only conclude that the state has failed to establish that a compelling
justification necessitates treating Martin’s offense of oral copulation with a minor
female within three years of his age more harshly than it would be treated if the
sex act were sexual intercourse. The proper remedy here is to direct the juvenile
court to declare Martin’s oral copulation with a minor offense to be a
misdemeanor and to recalculate his maximum time of confinement.
III. Disposition
The juvenile court’s order is reversed. The matter is remanded to the
juvenile court with directions to declare the oral copulation with a minor offense
to be a misdemeanor and to recalculate the maximum time of confinement
accordingly.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P.J.
_____________________________
Wunderlich, J.

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