Judge: James C. Chalfant, Case: 24STCP02925, Date: 2025-03-20 Tentative Ruling

Case Number: 24STCP02925    Hearing Date: March 20, 2025    Dept: 85

Petitioner Vahn Muradyan (“Muradyan”) seeks to compel Respondent Rob Bonta, in his official capacity as Attorney General, to release him from his obligation to register as a sex offender under Penal Code section 290 et seq.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

            1. Petition

            Petitioner Muradyan filed his Petition on September 11, 2024, which alleges in pertinent part as follows.

On January 9, 2009, Muradyan was convicted in Los Angeles Superior Court for, among other counts, felony violation of Penal Code section 288.4(b).  Pet., ¶¶ 5-6.  The court suspended sentencing, ordered Muradyan to 120 days in county jail, and placed him on five years of felony probation.  Pet., ¶7.  Muradyan also was ordered to register as a sex offender under Penal Code section 290 et seq.  Pet., ¶8. Muradyan has registered as a sex offender for over ten years.  Pet., ¶16.

Muradyan’s conviction classifies him as a tier three offender under Penal Code section 290(d)(3).  Pet., ¶15.  While tier one and two offenders may petition the court for relief from registration after a designated period, tier three offenders have no such path for relief.  Pet., ¶¶ 14-15. Muradyan asserts that it violates equal protection principles to compel him to register as a sex offender with no means of being relieved of this obligation.  Pet., ¶17.

Muradyan has a beneficial interest in the outcome of this matter, and has no other available remedies, and no other proceedings before any court.  Pet., ¶19-21.

Muradyan seeks mandamus to release him from his obligation to register as a sex offender pursuant to Penal Code section 290 et seq.  He prays for a writ of mandate removing his name from the list of persons required to register or such other relief as the court may deem just, proper, and equitable.  Prayer at ¶¶ 1-2.

2. Course of Proceedings

On October 14, 2024, the Attorney General filed his Answer.

B. Standard of Review

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.  Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.  Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.  Id. at 584 (internal citations omitted).  Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.  AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.”  Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205.  It is “essentially automatic based on whether certain fixed standards and objective measures have been met.”  Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359.  By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

No administrative record is required for traditional mandamus.

C. Penal Code Section 290

Penal Code^[1] section 290 provides a comprehensive scheme to “promote the state interest in controlling crime and preventing recidivism in sex offenders.”  Wright v. Super. Ct., (1997) 15 Cal.4th 521, 527 (internal quotation marks and citations omitted).  “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.”  Ibid.  The law protects children in particular, who are “a class of victims who require paramount protection from sex offenders.”  Johnson v. Dept. of Justice, (“Johnson”) (2015) 60 Cal.4th 871, 877.

The law has a second purpose “‘to notify members of the public of the existence and location of sex offenders so they can take protective measures.’”  Id. at 877 (citation omitted).  California’s Megan’s Law (§290.46) requires the Department of Justice to “make available information concerning persons who are required to register pursuant to section 290 to the public via an Internet Web site,” including the offender’s name, a photograph, a physical description, date of birth, criminal history, and address.  §290.46(b)(1).

Until recently, section 290 provided for lifetime, mandatory registration for persons convicted of any of certain sex offenses.  People v. Hofsheier, (2006) 37 Cal.4th 1185, 1196, overruled on other grounds, Johnson, supra, 60 Cal.4th at 879.  Once an offender was subject to registration, either by conviction of an offense providing for mandatory registration, or by order of a judge, the offender was required to register for life, without regard to subsequent rehabilitation efforts.  Critics of the Act, including some law enforcement agencies, believed the registry’s large size detracted from its crime-control purpose and overwhelmed law enforcement agencies.  See, e.g., People v. Smyth, (2024) 99 Cal.App.5th 22, 28 (citation omitted).  Critics also believed that the size of the registry detracted from its purpose of notifying the public about dangerous offenders.  Ibid.

In 2017, to address these concerns, the Legislature passed Senate Bill (“SB”) 384, the Tiered Registry Law amending section 290 to create a new, tiered registry.  SB 384 provides for three tiers of registration and requires that the Department of Justice place registrants into tiers primarily based on their offense of conviction.  §290(d).

Tier one is the least restrictive.  Registrants are required to register for ten years, after which they may petition for removal from the registry.  §§ 290(d)(1)(A), 290.5(a)(1).  A person is a tier one offender if he or she is required to register for conviction of specified misdemeanors and non-violent felonies.  §290(d)(1)(A).

Registrants placed into tier two must register for a minimum of 20 years and thereafter can petition for removal from the registry.  §§ 290(d)(2)(A), 290.5(a)(1).  This tier includes crimes that the Legislature has categorized as “serious or violent felonies,” as well as several additional listed offenses.  §290(d)(2)(A).

Tier three is the most restrictive, carrying lifetime mandatory registration.  §290(d)(3).  Tier three includes certain repeat sex offenders, offenders deemed to be at high risk of re-offense under a risk-assessment tool, offenders subject to certain prison terms, and registrants with a conviction for listed crimes.  §290(d)(3)(A)–(R).

D. Analysis

In 2009, Muradyan was convicted of violating section 288.4(b), which criminalizes the act of arranging and attending a meeting with a minor, or a person the offender believed to be a minor, to “expos[e] his . . . genitals or pubic or rectal area,” “hav[e] the [minor] expose his or her genitals or pubic or rectal area,” or “engag[e] in lewd or lascivious behavior.”  Pet., ¶5; §288.4(a)(1), (b).  The superior court ordered Muradyan to register as a sex offender pursuant to section 290.  Pet., ¶8.  Section 290(d)(3)(C)(xiii) lists Muradyan’s offense a tier-three offense, meaning lifetime registration as a sex offender.

Muradyan summarizes the elements of section 288.4(b) as follows: (a) the defendant arranged a meeting with a minor or a person he believed to be a minor; (b) when he did so he was motivated by an unnatural interest in children; (c) at the meeting he intended to expose his genitals or pubic or rectal area; and (d) the defendant went to the meeting at the arranged time.  Pet. Op. Br. at 2.

Muradyan seeks to compel the Attorney General to release him from his obligation to register as a sex offender pursuant to principles of equal protection.  He argues that his classification violates his right to equal protection because he must register for life, but other more serious sex offenses are either tier one or tier two offenses and do not carry mandated lifetime registration.  Pet. Op. Br. at 7.

“The United States and California Constitutions prohibit denial of equal protection of the laws.”  Legg v. Dept. of Justice, (“Legg”) (2022) 81 Cal.App.5th 504, 510; U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).  Except in cases of gender, the federal and state equal protection guarantees are applied identically.  Id. (citing Connerly v. State Personnel Bd., (2001) 92 Cal.App.4th 16, 31-32).  The Equal Protection Clause is “‘essentially a direction that all persons similarly situated should be treated alike.’”  People v. Hardin, (“Hardin”) (2024) 15 Cal.5th 834, 847 (“Hardin”), quoting Cleburne v. Cleburne Living Ctr., Inc., (1985) 473 U.S. 432, 439.

Sex offender registration under section 290 does not implicate a suspect class or a fundamental right and the rational basis standard of review applies in this case.  Legg, supra, 81 Cal.App.5th at 511 (citation omitted).  Pursuant to the rational basis standard, “equal protection of the law is denied only where there is no rational relationship between the disparity of treatment and some legitimate governmental purpose.”  Johnson, supra, 60 Cal.4th at 881 (internal quotation marks and citation omitted). “Rational basis review ‘sets a high bar’ for litigants challenging legislative enactments.”  Hardin, supra, 15 Cal.5th at 852.  The court must “presume that a given statutory classification is valid ‘until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.’”  Id. (citation omitted).  “‘[T]he logic behind a potential justification need [not] be persuasive or sensible—rather than simply rational.’”  Ibid. (citation omitted).  “This standard of rationality does not depend upon whether [the] lawmakers ever actually articulated the purpose they sought to achieve.”  Johnson, supra, 60 Cal.4th at 881.  The court “may engage in ‘rational speculation’ as to the justifications for the legislative choice”.  Ibid. (citation omitted).  The speculation need not have any empirical basis or foundation in the record.  Ibid.  “To mount a successful rational basis challenge, a party must ‘negative every conceivable basis that might support the disputed statutory disparity.”  Ibid.

In Legg, the appellate court addressed an equal protection challenge brought by a petitioner who was required to register as a sex offender for life due to his conviction under section 288(c)(1).  81 Cal.App.5th at 508-09.  The petitioner argued that his classification as a tier three offender for violation of section 288(c)(1) violated his equal protection rights under both federal and state law because those convicted of section 288(a) are subject to a more lenient registration requirement. Id. at 509.  He argued that both offenses proscribe the same conduct (lewd or lascivious act) and yet those convicted of violating section 288(a) are subject to a more lenient registration requirement.”  Id. at 509, 511.  The court rejected this argument, first concluding that persons who violate sections 288(a) and (c)(1) are “not similarly situated”.  Id. at 512-14.  Even if those offenders were similarly situated, the petitioner “failed to show that there is no rational relationship between the challenged statutory disparity and some legitimate governmental purpose.” Id. at 514.  The Legislature could reasonably have concluded that a legitimate governmental purpose is served of protecting the public from older adults who have preyed on young and vulnerable children.  Id. at 515.  Offenders under section 288(c)(1) – who are necessarily at least 24 or 25 years old – may be less likely to be rehabilitated than offenders convicted under section 288(a), who may be younger.  Id.  As a result, the petitioner’s equal protection challenge to the different registration requirements for sections 288(a) and (c)(1) offenders failed as a matter of law.  Id. at 516.

Prior to 2024, the threshold issue in evaluating equal protection claims in California was whether the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.  See Legg, supra, 81 Cal.App.5^th at 510.  In Hardin, the California Supreme Court modified the legal standard, holding that “when plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question.”  15 Cal.5th at 850.  “The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review.”  Ibid.  The reason for this change was that asking whether two groups are similarly situated for purposes of a facial challenge to a statute distinguishing between groups or classifications of individuals “is essentially the same as asking whether the distinction between them can be justified under the appropriate test of equal protection.  Id. at 849.  In so concluding, the court cautioned that its decision did not “call into question any of this court’s precedent that purported to dispose of an equal protection challenge upon deciding that the challenged disparate treatment did not involve groups that were similarly situated for purposes of the law in question.”  Id. at 851.  “[T]he conclusion in each of those cases could just as well have been cast as a conclusion about whether the difference in treatment was adequately justified under the applicable standard of review.”  Ibid.  The burden is on the party challenging the law to show that it is not justified under the applicable standard of review.  Id.

Muradyan initially relies on the outdated threshold of a classification that affects two or more similarly situated groups for purposes of the law challenged.  Pet. Op. Br. at 6.  As stated, this is not the standard of review.  “The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review.”  Hardin, supra, 15 Cal.5th at 850.

The Legislature enacted section 288.4 as part of the Sex Offender Punishment, Control, and Containment Act of 2006.^[2] Stats. 2006, ch. 337, § 7, p. 2584.  “The primary purpose of the Act was to prevent ‘future victimization’ of the community by sex offenders.”  People v. Cornett, (2012) 53 Cal.4th 1261, 1267.  The Supreme Court has called the specific offense criminalized by section 288.4 “the offense of child luring.”  Ibid.  Luring crimes are characterized by “contact or communication” with a victim that is preparatory in nature.  People v. Medelez, (2016) 2 Cal.App.5th 659, 663.  To be guilty of violating section 288.4(b), an offender has to both arrange a meeting with a minor (or a person believed to be a minor) and go to the meeting place at the agreed upon time.  Unlike some other offenses, luring crimes are inherently predatory, rather than impulsive.  See People v. Fromuth, (2016) 2 Cal.App.5th 91, 111 (“[A] person who arranges to have sex with a child when given the opportunity is an opportunistic sexual predator….”).

Section 290 does not have a purpose of requiring registration as a punishment.  “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.”  Wright v. Super. Ct., supra, 15 Cal.4th at 527.  The law protects children in particular, who are “a class of victims who require paramount protection from sex offenders.”  Johnson, supra, 60 Cal.4th at 877.  The law has a second purpose “‘to notify members of the public of the existence and location of sex offenders so they can take protective measures.’”  Id. at 877 (citation omitted).

As the Attorney General argues (Opp. at 5), the Legislature reasonably could have concluded that an offender who has committed a preparatory, predatory crime against a minor has demonstrated a mindset that makes him more likely to commit sex offenses against minors in the future, thereby justifying lifetime surveillance.  It is reasonable to conclude that offenders who are “more predatory” have less “potential to rehabilitate”.  Legg, supra, 81 Cal.App.5th at 515.  When the Legislature later passed the Tiered Registry Law, it used “decades of research” to determine which offenses most indicated a likelihood of recidivism.  Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. Sess., as amended Sept. 8, 2017, p. 12.  Section 290(d)(3)(C)(xii)’s mandate of lifetime registration for violators of section 288.4, therefore, reasonably serves the Tiered Registry Law’s purpose of mitigating the threat posed by offenders with a “perceived propensity for recidivism”.  People v. Franco, (2024) 99 Cal.App.5th 184, 191.

Muradyan lists five Penal Code offenses that he argues are “far greater offenses” than section 288.4(b), yet do not require lifetime registration.  Pet. Op. Br. at 7-9.

As the Attorney General contends (Opp. at 6-8), the Legislature could have reasonably determined that offenders convicted of the five offenses listed by Muradyan do not present the same risk of harming children in the future because they lack a necessary element reflecting a predatory mindset toward minors.  Inclusion of section 288.4(b) in the lifetime registration tier is rationally related to that goal.

The first offense, section 647.6(a), involves “annoy[ing] or molest[ing] any child under 18 years of age.”  Muradyan argues that section 288.4(b) and section 647.6(a) are indistinguishable, save for the requirement of arranging and attending a meeting where the offensive conduct is to happen.”  Pet. Op. Br. at 8.  As the Attorney General argues, that element is crucial because, unlike section 288.4(b), section 647.6(a) can be violated spontaneously.  The Legislature reasonably could have determined that an offender who takes the steps of arranging and attending a meeting with a minor presents a greater risk of recidivism.  Opp. at 6.

The second offense, section 288(a), involves “willfully and lewdly commit[ting] any lewd or lascivious act” on a child under the age of 14.  But the predation and recidivism risk for a section 288.4(b) offense are not always present for violations of section 288(a).  As Legg concluded, a violation of section 288(a) “can involve consensual sexual relations between minors or teenagers in a romantic relationship.”  81 Cal.App.5th at 515.  Opp. at 6.

Muradyan replies that this fails to account for the fact that section 288.4 does not require that the minor victim and the offender be any particular number of years apart in their age.  An 18 year-old high school senior can violate section 288.4 by arranging to pick up his 17 year-old girlfriend and take her to the movies with the intention of engaging in sexual activity.  The irony is that the act of having sex is not a mandatory registerable offense under section 261.5 (unlawful intercourse with person under 18), but the act of arranging a meeting triggers the lifetime registration requirement under section 288.4.  Reply at 2.

In contrast, the victim of an offense under section 288(a) is required to be under the age of 14 with no minimum age.  A typical case involving the molestation of an eight year-old girl by her adult stepfather will cause that defendant to have to register for 20 years as a tier 2 offender, but not as a lifetime offender.  The Attorney General argues that the act of arranging the meeting makes the section 288.4 offender more likely to reoffend, but the scenario of a parental figure or relative molesting a child who resides in the same home involves the exercise of greater power and coercive control of the minor victim, especially one under the age of 14, than a consensual meeting between a section 288.4 victim, who is only required to be under 18, and an offender.  Any distinction created by the Legislature between these two offenses is not rational.  Reply at 2. 

Muradyan is fighting the rational basis standard.  The issue is not whether it may be more rational in some circumstances to treat the offenders in two different classes the same.  “To mount a successful rational basis challenge, a party must ‘negative every conceivable basis that might support the disputed statutory disparity.”  Johnson, supra, 60 Cal.4th at 881.  Therefore, it is insufficient to create hypotheticals, even typical ones, and argue there is no rational basis to distinguish that scenario from the challenged statute.  The irrationality must be true in every circumstance.  Thus, Muradyan’s comparison of the section 290 registration requirements for a stepfather’s molestation of a child in violation of section 288(a) and the registration requirements for a section 288.4 offender guilty of predatory planning is insufficient.  The Legislature rationally could conclude that the class of section 288.4(b) offenses carry a greater risk of recidivism and predation than the class of section 288(a) offenses.

The third offense, section 314, involves indecent exposure, including after entering a dwelling without consent. The offense does not necessarily require planning and predation as required for section 288.4(b).  Moreover, section 314 can be violated without harming a minor. The Legislature could reasonably have concluded that making it a tier-three offense would not as closely serve the need for paramount protection of children.  Johnson, supra, 60 Cal.4th at 877.  Opp. at 7.

Muradyan replies that indecent exposure pursuant to section 314 requires an offender to expose themself and direct public attention to their genitals.  The charge does not carry an enhancement or greater period of registration when there is a minor victim.  A typical indecent exposure offender who exposes their genitals in a public place like a grocery store or public transportation poses as much or more of a threat to the public as a person who arranges a consensual meeting with a minor when the offender is just over the age of 18.  Indecent exposure carries the additional element of unwanted and uninvited conduct which creates a greater risk of harm to unknowing members of the public.  Reply at 2-3.

This argument is a gravity of the offense argument, which is not the issue.  The concern for rational basis analysis is the risk of recidivism, particularly with children, and the Legislature could reasonably conclude that an offense under section 288.4(b) carries a greater risk of recidivism against children than section 314.

The fourth offense, section 261.5(d), involves unlawful sexual intercourse between an offender who is 21 or older where the victim is younger than 16.  Violations of section 261.5(d) do not necessarily involve preparatory communications with a minor or evince a predatory mindset, and an offender may not present the same future risk to the community.^[3]  Opp. at 7.

The fifth offense, section 647(j)(2) and (j)(3)), involves concealing a camera to secretly record another person “under or through the clothing” or “in a state of full or partial undress.” The offense does not reflect a mindset of predation toward minors.  It does not necessarily involve minors at all. The Legislature could reasonably have determined that conviction of the offense warrants something less than lifetime registration.^[4] Opp. at 7.

In short, the Legislature’s different treatment of offenders convicted under section 288.4 of “child luring,” a predatory crime against children, reflects a rational decision motivated by a legitimate purpose of monitoring offenders with the highest risk of recidivism against minors. None of the offenses cited by Muradyan necessarily involve communications or planning with minors. There is a rational basis for Muradyan’s lifetime sex offender registration status as a tier three offender (section 290(d)(3)(C)(xii)) based on his felony conviction under section 288.4(b).

E. Conclusion

Petitioner Muradyan’s equal protection claim fails as a matter of law and the Petition is denied.  The Attorney General is ordered to prepare a proposed judgment, serve it on Muradyan’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for April 24, 2025 at 9:30 a.m.