Legg v. Dep't of Justice

• Decision Date: 29 June 2022
• Docket Number: C094657
• Citation: 81 Cal.App.5th 504,296 Cal.Rptr.3d 179
• Parties: Robert Henry LEGG, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 504

296 Cal.Rptr.3d 179

Robert Henry LEGG, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent;The People, Real Party in Interest.

C094657

Court of Appeal, Third District, California.

Filed June 29, 2022

Jill M. Klein, Attorney at Law, 1902 Wright Place, Suite 200, Carlsbad, CA 92008, for Petitioner.

Office of the State Attorney General, P.O. Box 944255, Sacramento, CA 94244-2550, Chad A. Stegeman, Office of the Attorney General, 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102, Megan Anne Richards, Office of the Attorney General, 1300 I Street, Suite 125, Sacramento, CA 95814, Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney General, Paul Stein, Deputy Attorney General, for Respondent.

No appearance for Real Party in Interest.

Duarte, J. Petitioner Robert Henry Legg pleaded guilty to committing a lewd act upon a 14-or 15-year-old child, a conviction that required him to register as a sex offender for life. ( Pen. Code, § 290.)¹ A subsequent amendment to section 290 created a tiered registry for adult sex offenders, requiring a minimum registration period for some offenses and lifetime registration for others; petitioner's offense continued to require lifetime registration. Petitioner sought a writ of mandate in the trial court, claiming that his lifetime registration requirement denied him equal protection of the laws. The trial court denied the petition, and he appeals. We affirm.

FACTS AND PROCEEDINGS

The underlying facts of the case are not relevant; it suffices to say that petitioner inserted his finger into the vagina of the female victim. At the time of the offense, petitioner was 43 years old, and the victim was 15 years old.

A complaint charged petitioner with one count of rape by force or fear ( § 261, subd. (a)(2) ; count 1), and one count of lewd acts upon a 14- or 15-year-old-child, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of petitioner and the child ( § 288, subd. (c) ; count 2).² On November 14, 2011, petitioner pleaded guilty to count 2, and count 1 was dismissed. Under the Sex Offender Registration Act, petitioner was required to register as a sex offender for life in light of his conviction. (Former § 290, subds. (b), (c) ; Stats. 2007, ch. 579, § 8.) On May 18, 2012, the trial court denied petitioner's motion to withdraw his plea, in which he had alleged in part that he was not advised of the requirement that he register as a sex offender pursuant to section 290. Over petitioner's objection, the court proceeded with sentencing and sentenced him to the upper term of three years in prison.

In October 2017, the Legislature enacted, and the Governor signed, Senate Bill No. 384 (2017-2018 Reg. Sess.) (Senate Bill No. 384), which established a three-tiered registry for sex offenders convicted in adult court, requiring an offender to register for a minimum of 10 or 20 years for certain offenses and for life for others, depending on the offender's designated tier. (See Stats. 2017, ch. 541, § 4 ; Stats. 2018, ch. 423, § 52.) Under section 290 as amended by Senate Bill No. 384, petitioner's conviction under section 288, subdivision (c)(1) remains subject to mandatory lifetime registration, while a section 288, subdivision (a) offender is now only subject to a minimum 20-year registration period. ( § 290, subds. (c), (d)(2)(A), (d)(3)(C)(ix).)

On May 3, 2021, petitioner filed a petition for writ of mandate in the San Joaquin County Superior Court raising an equal protection challenge to the disparate sex offender registration requirements of section 288, subdivision (a) and subdivision (c)(1) under the new tiered registration system as set forth in section 290 as amended. On June 30, 2021, the trial court denied his petition.

Petitioner timely appealed the trial court's denial of his petition for writ of mandate. The case was fully briefed in April 2022, and it was assigned to this panel on April 29, 2022. The parties waived argument and the case was submitted on June 24, 2022.

DISCUSSION

Petitioner argues that subjecting criminal defendants convicted of violating section 288, subdivision (c)(1) to mandatory lifetime sex offender registration violates his state and federal constitutional rights to equal protection of the laws because those convicted of violating section 288, subdivision (a) are subject to a more lenient registration requirement. Petitioner's equal protection claim is subject to de novo review. ( Shoemaker v. Harris (2013) 214 Cal.App.4th 1210, 1223, 155 Cal.Rptr.3d 76.) As we will explain, we disagree with petitioner's argument.

In relevant part, section 288, subdivision (a) criminalizes "willfully and lewdly commit[ting] 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."

Section 288, subdivision (c)(1) provides in 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."

I

Equal Protection Principles

The United States and California Constitutions prohibit denial of equal protection of the laws. ( U.S. Const., 14th Amend.; Cal Const., art. 1, § 7, subd. (a).) The state constitutional guarantee is independent of the federal guarantee, but, except in cases of gender, the state and federal guarantees are applied identically. ( Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 31-32, 112 Cal.Rptr.2d 5.) The equal protection clause requires the state to treat all persons similarly situated alike or, conversely, to avoid all classifications that are "arbitrary or irrational" and those that reflect " ‘a bare ... desire to harm a politically unpopular group.’ " ( City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 446, 447, 105 S.Ct. 3249, 87 L.Ed.2d 313.)

"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, 159 Cal.Rptr. 317, 601 P.2d 549.) We do not inquire "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, 127 Cal.Rptr.2d 177, 57 P.3d 654.) "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." ...’ [Citation.] 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, 63 Cal.Rptr.2d 173.)

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." ( Romer v. Evans (1996) 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855.) "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." ( Clark v. Jeter (1988) 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 ; Connerly v. State Personnel Bd. , supra , 92 Cal.App.4th at pp. 31-32, 112 Cal.Rptr.2d 5, citing United States v. Virginia (1996) 518 U.S. 515, 532, 116 S.Ct. 2264, 135 L.Ed.2d 735.)

Because sex offender registration does not implicate a suspect class or a fundamental right, rational basis review applies here. ( People v. McKee (2010) 47 Cal.4th 1172, 1211, fn. 14, 104 Cal.Rptr.3d 427, 223 P.3d 566 [lifetime sex offender registration requirement is a regulatory statute that does not involve loss of liberty and thus is subject to rational basis review].) 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." ( Heller v. Doe (1993) 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257.) " ‘This standard of rationality does not depend upon whether the lawmakers ever actually articulated the purpose they sought to achieve.’ " ( Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881, 183 Cal.Rptr.3d 96, 341 P.3d 1075.) In determining if there is a rational basis for the disparity in treatment, " ‘a court may engage in " ‘rational speculation’ " as to the justifications for the legislative choice,’ " and such speculation...