Judge: Michelle Williams Court, Case: 22STCV19692, Date: 2022-09-29 Tentative Ruling
Case Number: 22STCV19692 Hearing Date: September 29, 2022 Dept: 74
22STCV19692 JOHN
DOE vs CALIFORNIA DEPARTMENT OF JUSTICE
Demurrer by California Department of Justice and
California Attorney General Rob Bonta to Plaintiffs’ Complaint
TENTATIVE RULING: Demurrer by California Department of Justice
and California Attorney General Rob Bonta to Plaintiffs’ Complaint is SUSTAINED
without leave to amend.
Background
On June
16, 2022, Plaintiff John Doe filed this action against Defendants California
Department of Justice and Rob Bonta, in his official capacity as Attorney
General of the State of California for declaratory and injunctive relief. The
complaint seeks “a judgment declaring that the Tiered Registry Law, California
Penal Code section 290, subdivision (d), violates the equal protection
guarantee of Article 1, section 7 of the California Constitution to the extent
that it assigns persons convicted of violating subdivision (c)(1) of Section
288 of the Penal Code to Tier 3.” (Compl. at 17 § A.) Plaintiff alleges “there
is no rational basis for assigning persons convicted of felony or misdemeanor
violations of Section 288(c)(1) to Tier 3 under the Tiered Registry Law, while
assigning persons convicted of violating Section 288(a) to Tier 2.” (Compl. ¶ 43.)
Plaintiff also alleges “there is no rational basis for assigning persons
convicted of felony or misdemeanor violations of Section 288(c)(1) to Tier 3
under the Tiered Registry Law, while assigning to Tier 1 persons convicted of
violating” various enumerated provisions of the Penal Code. (Id. ¶ 44.)
Demurrer
On August 23, 2022, Defendants California Department of Justice and
California Attorney General Rob Bonta filed their demurrer to the complaint
arguing it fails to state a cause of action for relief.
Opposition
In opposition, Plaintiff argues he has plausibly
alleged an equal protection violation because he is treated differently from a
similarly situated group and there is no rational basis for the distinction.
Reply
In reply, Defendants reiterate their arguments that
Plaintiff is not similarly situated to any group treated in an unequal manner
and there is a rational basis for the tiered registration requirements
challenged.
Judicial Notice
Defendants and Plaintiff request the Court take
judicial notice of various legislative materials. The requests are GRANTED.
(Evid. Code §§ 452(c); 452(h).)
Meet and Confer
Defendant submitted the declaration of Lara Haddad, which satisfies the
requirements of Code of Civil Procedure
sections 430.41.
Demurrer
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ.
Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege
ultimate facts sufficient to apprise the defendant of the factual basis for the
claim against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts
noting plaintiff’s proof. (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A
“demurrer does not, however, admit contentions, deductions or conclusions of
fact or law alleged in the pleading, or the construction of instruments
pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A
special demurrer to a complaint is appropriate when the grounds of the pleading
are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f);
Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor
demurrers based on uncertainty, which the court strictly construes even when
the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.)
If
the demurrer is sustained, plaintiff must prove the possibility of cure by
amendment. (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)
Equal Protection – Penal Code sections
288(a) and 288(c)(1)
Plaintiff
challenges the assignment of persons convicted of felony or misdemeanor
violations of Penal Code section 288(c)(1) to Tier 3 of the Tiered Registry Law
on equal protection grounds. (Compl. ¶¶ 39-47.) Plaintiff alleges these
individuals are treated differently than those who violated Penal Code section
288(a). (Compl. ¶ 43.)
Penal
Code section 288(a) provides “[e]xcept as provided in subdivision (i), 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.”
Section
288(c)(1) provides “[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. In determining whether the person is at least 10 years
older than the child, the difference in age shall be measured from the birth
date of the person to the birth date of the child.”
The
Court may resolve equal protection challenges on demurrer. (See e.g. Kimco Staffing Services, Inc. v. State of
California (2015) 236 Cal.App.4th 875, 877 (upholding judgment of dismissal
after demurrer sustained without leave to amend).)
Defendants
argue Plaintiff’s complaint fails because “section 288, subdivisions (a) and
(c)(1) offenders are not similarly situated for equal protection purposes.”
(Dem. at 9:24-12:6; Reply at 2:18-6:5.) “When a statute is challenged on equal
protection grounds, . . . It first must
determine whether ‘the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.’ [Citations.] 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.” (Kimco,
supra, 236 Cal.App.4th at 884–885 quoting Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.)
As
to the interaction between Penal Code section 288(a) and 288(c)(1), the Court
of Appeal recently rejected an identical equal protection challenge, which is
binding on this Court. Plaintiff’s contention that violators “underlying
conduct is identical,” (Opp. at 7:24-10:9), under the two provisions is not
sufficient. The Court of Appeal in Legg v. Department of Justice (2022)
81 Cal.App.5th 504 found individuals who violated Penal Code section 288(a) and
288(c)(1) are not similarly situated. (Id.
at 512 (“while we recognize section 288, subdivisions (a) and (c)(1) share
similarities in the prohibited conduct and intent, the age differential required
by subdivision (c)(1) is a meaningful distinction demonstrating that persons
violating the two statutes are not similarly situated.”). See also Johnson
v. Department of Justice (2015) 60 Cal.4th 871, 887 (“There appears,
however, no legal authority suggesting that the same registration consequences
are constitutionally required because certain defendants might at times commit
both offenses with the same victims.”).) The Court also does not find
Plaintiff’s reliance upon the severity of the offenses dispositive because
registration is not punitive and serves a different purpose from sentencing. (See
e.g. People v. Castellanos (1999) 21
Cal.4th 785, 799; People v. Barker (2004)
34 Cal.4th 345, 357.)
Similarly,
the Court of Appeal in Legg found there was a rational basis for
treating these offenders differently. (Legg, supra, 81 Cal.App.5th at
514 (“The relevant inquiry in this case is whether a legitimate reason exists
that permits the Legislature to require lifetime registration for persons
convicted under section 288, subdivision (c)(1), while allowing persons
convicted under section 288, subdivision (a) to petition for termination from
the sex offender registry after the expiration of the mandated minimum
registration period (typically 20 years). Such a reason exists here.”).) Specifically,
the Court of Appeal found “[t]he Legislature could have reasonably determined
that the challenged statutory disparity is warranted to serve the legitimate
governmental purpose of protecting the public from considerably older adults
who have preyed on young and vulnerable children.” (Id. at 515.) Furthermore,
the Court of Appeal noted “[t]he legislative concern giving rise to the
enactment of subdivision (c)(1) of section 288--sexual exploitation of young,
vulnerable children by significantly older predatory adults [Citation]--is not
always present when a person violates subdivision (a) of section 288, since a
violation of that provision can involve consensual sexual relations between
minors or teenagers in a romantic relationship.” (Id. at 515.)
Plaintiff
contends in a footnote that “the petitioner in Legg did not have a
Certificate of Rehabilitation as does Plaintiff in this case” and therefore the
opinion does not govern. (Opp. at 3 n.1.) Plaintiff does not provide any
analysis or authority as to why this distinction is relevant and the Court is
not persuaded. Accordingly, Plaintiff’s equal protection challenge based upon
the treatment of violators under Section 288(a) and 288(c)(1) fails.
Equal Protection – Penal Code Section
288(c)(1) and Other Offenses
The
complaint also challenges the registration requirements based upon the
differences between individuals who violated Penal Code section 288(c)(1) and
those who violated Penal Code sections 243.4, 286(b)(1), 286(b)(2), 287(b)(1),
or 287(b)(2). (Compl. ¶ 44.)
Penal
Code section 243.4 governs sexual battery, Section 286 governs sodomy involving
a minor, and Section 287 governs oral copulation involving a minor. Sections
286(b)(1) and 287(b)(1) provide for imprisonment “for a period of not more than
one year” whereas Sections 286(b)(2) and 287(b)(2) raise the offense to a
felony where the offender is over 21 years of age, and the victim is under 16
years of age.
The
Court of Appeal’s analysis in Legg similarly forecloses Plaintiff’s
arguments as to these statutes. As noted by Defendants, “those sections involve
an age differential (see, e.g., section 287, subdivision (b)(2)), where the
floor is at least five years, as opposed to a decade.” (Dem. at 11:23-12:3.) Additionally,
Sections 286(b) and 287(b) are expressly limited by Section 288, further
demonstrating offenders are not similarly situated. (Pen. Code §§ 286(b);
287(b) (“Except as provided in Section 288 . . .”).) “[T]he requirement that
the offender be at least 10 years older than the 14-or 15-year-old victim
distinguishes subdivision (c)(1) from” the other statutes. (Legg, supra,
81 Cal.App.5th at 514.)
Moreover,
there is a rational basis for any differing treatment. “The age of a defendant
may provide a meaningful distinction in providing for different treatment of
criminal offenses in certain instances. . . . The Legislature could have
properly concluded that it was necessary to specifically prohibit sexual
conduct between a 14–or 15–year–old and an adult at least 10 years older and to
include mandatory sex offender registration based upon a conviction for the
offense, because of the potential for predatory behavior resulting from the
significant age difference between the adult and the minor.” (People v.
Cavallaro (2009) 178 Cal.App.4th 103, 114. See also Legg, supra, 81 Cal.App.5th at 515.)
While
this is the initial pleading, Plaintiff has not demonstrated a legal or factual
basis upon which he may amend the complaint to properly state an equal
protection challenge to the statutes at issue. Accordingly, the demurrer is
SUSTAINED without leave to amend.