Judge: James C. Chalfant, Case: 24STCP04086, Date: 2025-04-15 Tentative Ruling

Case Number: 24STCP04086    Hearing Date: April 15, 2025    Dept: 85

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257.  The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36.  CCP §430.10.  Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.  CCP §472a(c).  However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.  CCP §430.41(e)(1).

C. Penal Code Section 290

Penal Code section 290 (“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 (Penal Code §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.  Penal Code §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 Penal Code 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.  Penal Code §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.  Penal Code §§ 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.  Penal Code §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.  Penal Code §§ 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.  Penal Code §290(d)(2)(A).

Tier three is the most restrictive, carrying lifetime mandatory registration.  Penal Code §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.  Penal Code §290(d)(3)(A)–(R).

Penal Code section 288 criminalizes a broad array of sexual offenses against minors under the age of 15, including lewd and lascivious conduct, forcible rape, and other sexual offenses.  Persons convicted of violating Penal Code section 288(a) -- committing of a lewd or lascivious act upon or with a child under the age of 14 (regardless of the age of the defendant) -- are required to register at tier two and may petition for relief from registration requirements after 20 years.  Penal Code §290(d)(2)(A).

A crime involving use of force or fear against a minor under the age of 14 is a violation of Penal Code section 288(b) whereas Penal Code section 288(a) does not have an element of using force or fear.  A conviction for violating Penal Code section 288(b) requires lifetime registration as a tier three offense.  Penal Code §290(d)(3)(C)(ix).

Penal Code section 288(c)(1) makes it a crime for a person to willfully and lewdly commit any lewd or lascivious act upon or with a 14- or 15-year-old child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, and requires that the perpetrator be at least ten years older than the child.  Penal Code §288(c)(1).  A conviction for lewd and lascivious acts in violation of Penal Code section 288(c)(1) is a tier three offense.  Penal Code §290(d)(3)(C)(ix).  Anyone convicted of this offense (whether misdemeanor or felony) is required to register as a sex offender for life.  Id.

Penal Code Section 653f(c) criminalizes the solicitation of another to commit, by force or violence, rape, sodomy, oral copulation, or any violation of section 264.1, 288, or 289, with the intent that the crime be committed.  Penal Code §653f(c). Anyone convicted of this offense (whether misdemeanor or felony) is required to register as a sex offender for life, as a violation of 653f(c) is a tier three offense.  Penal Code §290(d)(3)(C)(xv).

D. Analysis

The Attorney General demurs to the FAP on the ground that it fails to state a cause of action.^[1]

According to the FAP, Luna was convicted in 1993 of a felony in violation of Penal Code section 653f(c).  FAP, ¶¶ 5.  As a result of his conviction, Luna is subject to lifetime sex offender registration as a tier-three offender under Penal Code^[2] section 290(d)(3)(C)(ix) without any “legal means available to him of being relieved of his requirement.”  FAP, ¶14.  The FAP alleges this is a violation of equal protection.  FAP, ¶17.

1. The Rational Basis Test Applies to Luna’s Tier Three Sex Registration Requirement

“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 (quoting Cleburne v. Cleburne Living Ctr., Inc., (1985) 473 U.S. 432, 439).

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.  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.

Sex offender registration does not implicate a suspect class or a fundamental right and rational basis review applies in this case.  Legg, supra, 81 Cal.App.5th at 511 (citation omitted).  When a “disputed statutory disparity implicates no suspect class or fundamental right, 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 pp. 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.

2. The Equal Protection Issue May Be Addressed on Demurrer

Luna argues that the Attorney General asks the court to weigh the potential rational basis the Legislature may have had in deciding his offense should be in tier three, which is more properly addressed in a substantive hearing.  Opp. at 2.

This is incorrect.  “An equal protection claim may be addressed by demurrer.”  See Doe v. Finke, (2022) 86 Cal.App.5th 913, 921 (citation omitted).  In rational basis review, the court cannot rely on the absence of evidence in the legislative history or the court record to indicate that a justification was the actual motivation for the statute.  Id. at 927.  “This is because “’a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”.  Id. (italics in original; citation omitted). Because rational speculation may occur without supporting evidence, a demurrer is particularly suited to Luna’s equal protection claim. 

3. Luna’s Tier Three Placement Has a Rational Basis

There is a rational basis for Luna’s lifetime sex offender registration status as a tier-three offender (section 290(d)(3)(C)(xv)^[3]) based on his felony conviction under section 653f(c).

Section 653f(c) criminalizes the solicitation of another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or any violation of section 264.1, 288, or 289.  Section 264.1 is gang rape, section 288(a) is the commission of a lewd or lascivious act with a child under the age of 14 with the intent of arousing, section 288(b) is the commission of such an act and intent through the use of force or fear, section 288(c)(1) is the commission of such an act and intent where the perpetrator is at least ten years older than the child, section 288(c)(2) is the commission of such an act and intent by a caretaker against their dependent, and section 289 is non-consensual sexual penetration by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.

Luna argues that there is no rational basis for the Legislature to require a person who merely solicits another person to commit one of the offenses listed in section 653f(c) to register for life when there is no requirement that the actual crime be committed and, for some of section 653f(c)’s listed offenses, such as section 288, the registration requirement is only 20 years for actually committing the offense. The Attorney General calls a violation of section 653f(c) inherently predatory, but the elements of the offense do not requires the defendant do anything predatory. Instead, the charge penalizes soliciting another person to commit one of the listed offenses. There is no requirement that the person solicited, or the potential victim, be a stranger.  Opp. at 3.

Luna adds that, in other cases (presumably Legg), the Attorney General has argued that the Legislature could have theorized that section 288(a) offenders are only required to register for 20 years and not for life because it wanted to protect youthful offenders.  There is no requirement that the defendant charged with violating section 653f(c) and the victim be a certain number of years apart in age.  Additionally, section 653f(c) encompasses a large variety of conduct, included all violations of section 289 relating to sexual penetration, including section 289(h) (sexual penetration by object), which does not require automatic sex registration, and section 289(i) (sexual penetration by object of a victim ten years younger than the defendant), which only requires ten years of registration.  The Attorney General cannot why a section 653f(3) convicted defendant is more dangerous and required to register for life.  Opp. at 3-4.

It is true that Legg is distinguishable because it concerned the difference between section 288(a) and (c)(1) and the rational basis in protecting the public from older adults who have preyed on young and vulnerable children. Section 653f(c) is more broadly designed.  But Luna ignores the fact that he “must ‘negative every conceivable basis that might support the disputed statutory disparity.” Johnson, supra, 60 Cal.4th at 881.  Section 290’s sex registration requirements protect children in particular, who are “a class of victims who require paramount protection from sex offenders”.  It also serves “‘to notify members of the public of the existence and location of sex offenders so they can take protective measures.’”  Id. at 877.

As the Attorney General argues, section 653f(c) criminalizes the solicitation of another person to commit violent categories of forcible sexual assault upon both adults and children—including rape by force or violence, sodomy by force or violence, gang rape, lewd and lascivious acts upon children under the age of 14 (whether consensual or perpetrated by force, violence, duress, menace, or fear), and lewd and lascivious acts upon a 14- or 15-year-old by a predator at least ten years older than the child—and requires that the offender act “with the intent that the crime be committed.”  While some of the underlying offenses (sections 288(a) and 289) do not require lifetime sex registration, the nature of soliciting a third party to perform any of these acts is inherently predatory. 

“At its core section 653f(c) targets the conduct of bringing a third person into the zone of potential criminality otherwise occupied only by the defendant and the victim. By soliciting another person to directly perpetrate the offense, or to aid and abet its commission, the defendant threatens to inculcate criminal intent in those who would otherwise remain law abiding. This threatened communication of criminal inclinations so as to infect others and enlarge the criminal enterprise is the core evil at which criminal solicitation laws are aimed.  People v. Herman, (2002) 97 Cal.App.4th 1369, 1384-85 (emphasis added).

This predation is a rational reason for the difference in registration requirements between section 653f(c) violations and the underlying section 288(a) and 289 offenses.  The Legislature could reasonably have concluded that requiring lifetime registration for persons convicted under section 653f(c) is necessary to prevent recidivism by predators as well as the expansion of the number of such predators.  

It is not significant that some subset of section 653f(c) offenders may have solicited sex crimes that are subject to lesser registration requirements.  The Legislature could have rationally concluded that those who solicit others to engage in violent sexual assault against adults and minors, lewd and lascivious conduct against minors, or other sexual misconduct covered by section 653f(c), require the same or greater surveillance than those who commit sexual misconduct themselves because they pose a greater risk of expanding the population of predatory sex offenders.  Moreover, equal protection does not require that the Legislature have struck exactly the right balance in drawing rational lines.  See People v. Ngo, (2023) 89 Cal.App.5th 116, 126.  Under the rational basis test, the court “must accept any gross generalizations and rough accommodations that the Legislature seems to have made.  A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends, or because it may be to some extent both underinclusive and overinclusive.”  Johnson, supra, 60 Cal.4th at 887 (citations and internal quotations omitted).  Reply at 8.

Section 653f(c) is rationally related to the legitimate government purpose of avoiding enlarging the community of predatory people soliciting and committing the solicited sexual violence, exploitation, and misconduct.  See Mem. at 18, 20; Reply at 5-6.

E. Conclusion

The Attorney General’s demurrer to the FA is sustained without leave to amend.  An order to show cause re: dismissal is set for May 6, 2025 at 9:30 a.m.