Flores v. Dep't of Justice

1

JOE ROBLES FLORES, Plaintiff and Appellant, v. DEPARTMENT OF JUSTICE, Defendant and Respondent;

THE PEOPLE, Real Party in Interest.

C095611

California Court of Appeals, Third District, Yolo

November 2, 2022

NOT TO BE PUBLISHED

(Super. Ct. No. CR-2007-6479-AP)

HOCH J.

In 2008, petitioner Joe Robles Flores pleaded no contest to a misdemeanor violation of Penal Code^[1] section 288, subdivision (c)(1) and was required under former section 290 to register as a sex offender for life. Following a change in the sex offender registration scheme in 2021 which created a tiered registration system, petitioner was classified as a tier-three offender, and, as such, was still subject to lifetime registration.

Petitioner filed a petition for a writ of mandate on equal protection grounds seeking to have his tier-three registration classification changed or his removal from the registry altogether. He asserted that similarly situated individuals convicted under section 288, subdivision (a) were classified as tier-two offenders whereas those convicted under subdivision (c)(1) of that section for crimes involving the same acts and the same intent were classified as tier-three offenders, and that there was no rational basis for this differential treatment. The superior court denied the petition.

Petitioner appeals, reprising his equal protection claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, petitioner was convicted, upon his plea of no contest of a misdemeanor violation of section 288, subdivision (c)(1) based on an incident involving his granddaughter. As a result of this conviction, he was required to register for life as a sex offender under former section 290.

In 2017, the Legislature enacted, and the Governor signed Senate Bill No. 384 (2017-2018 Reg. Sess.), which amended section 290 and established a three-tiered registry for sex offenders convicted in adult court. (Stats. 2017, ch. 541; see § 290.) Tier one provides for a minimum 10-year term of registration, tier two provides for a minimum 20-year term, and tier three provides for lifetime registration. (§ 290, subd. (d).) In 2021, the amended, tiered version of section 290 became operative. Under the new tiered registration scheme, petitioner's conviction of violating section 288, subdivision (c)(1) was a tier-three offense, and thus petitioner remained subject to lifetime registration. (§ 290, subd. (d)(3)(C)(ix).) However, violation of section 288, subdivision (a) was classified as a tier-two offense, subject to a minimum 20-year term of registration. (§ 290, subd. (d)(2)(A).)

Petitioner filed his petition for a writ of mandate in the Yolo County Superior Court. He asserted that violation of subdivision (a) of section 288 was a more serious crime than violation of subdivision (c)(1) of that section. Petitioner emphasized that violation of subdivision (a) "deals with an even more vulnerable class of people - those under the age of 14," results in more severe sentences, and is classified as a serious felony under section 1192.7, subdivision (c)(6) and a violent felony under section 667.5, subdivision (c)(6). Additionally, unlike section 288, subdivision (c)(1), violation of section 288, subdivision (a) is not considered a "wobbler" and therefore cannot be reduced to a misdemeanor. Yet, petitioner noted, had he pled to a violation of subdivision (a) of section 288, he would be classified as a tier-two offender rather than a tier-three offender. He emphasized that violations of subdivisions (a) and (c)(1) of section 288 both constituted specific intent crimes, they addressed identical conduct, and they involved a "very similar age group." However, according to petitioner, "the more serious crime, a violation of [section] 288[, subdivision ](a), has a lesser consequence under [section] 290."

Thus, petitioner asserted that individuals similarly situated to him-offenders 10 years older than their victims convicted of violating section 288, subdivision (a) and offenders 10 years older than their victims convicted of violating section 288, subdivision (c)(1)-were treated differently under the amended version of section 290. Petitioner asserted that this constituted a violation of his rights under the equal protection clauses of the United States and California Constitutions. Specifically, individuals convicted under subdivision (a) of section 288 receive a lesser registration consequence under section 290 than individuals convicted under subdivision (c)(1) of section 288. Petitioner further asserted there was no rational basis for the differential treatment of these similarly situated individuals.

The superior court denied the petition.

DISCUSSION

I Equal Protection Principles

"The United States and California Constitutions prohibit denial of equal protection of the laws." (Legg v. Department of Justice (2022) 81 Cal.App.5th 504, 510 (Legg), citing U.S. Const., 14th Amend. &Cal Const., art. 1, § 7, subd. (a).) "At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification." (People v. Chatman (2018) 4 Cal.5th 277, 288.)

"The 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 unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.) "This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)

"Where the two groups are similarly situated, the high court under federal law has prescribed different levels of scrutiny depending on whether the law 'targets a suspect class.'" (Legg, supra, 81 Cal.App.5th at p. 511, quoting Romer v. Evans (1996) 517 U.S. 620, 631.)" 'At a minimum, a statutory classification must be rationally related to a legitimate government purpose. [Citations.] Classifications based on race or national origin [citation], and classifications affecting fundamental rights [citation] are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.'" (Legg, at p. 511, quoting Clark v. Jeter (1988) 486 U.S. 456, 461, &citing Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 31-32 &United States v. Virginia (1996) 518 U.S. 515, 532.)

"Because sex offender registration does not implicate a suspect class or a fundamental right, rational basis review applies here." (Legg, supra, 81 Cal.App.5th at p. 511.) "Under rational basis review, even where the state treats two similarly situated groups differently, there is no constitutional violation unless there is [not] 'a rational relationship between the disparity of treatment and some legitimate governmental purpose.'" (Ibid., quoting Heller v. Doe (1993) 509 U.S. 312, 320.) "A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citations.] The underlying rationale for a statutory classification need not have been' "ever actually articulated"' by lawmakers, and it does not need to' "be empirically substantiated."' [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible-rather than simply rational." (People v. Chatman, supra, 4 Cal.5th at p. 289.)" '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' "negative every conceivable basis"' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its' "wisdom, fairness, or logic." '" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).)

We review petitioner's equal protection claim de novo. (Legg, supra, 81 Cal.App.5th at p. 509.)

II Penal Code Section 288 and the Parties' Contentions

Subdivision (a) of section 288 provides, in pertinent part: "a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."

Subdivision (c)(1) of section 288 provides, in pertinent part: "A 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."

Petitioner asserts that the disparate treatment of offenders convicted of violating section 288, subdivision (c)(1) and a subset of those convicted of violating section 288, subdivision (a) in their respective section 290 tiered-registration requirements violated the equal protection clauses of the United States and California Constitutions. Petitioner asserts...