Filed 11/2/22 Flores v. Dept. of Justice CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
JOE ROBLES FLORES, C095611
Plaintiff and Appellant, (Super. Ct. No. CR-2007-
6479-AP)
v.
DEPARTMENT OF JUSTICE,
Defendant and Respondent;
THE PEOPLE,
Real Party in Interest.
In 2008, petitioner Joe Robles Flores pleaded no contest to a misdemeanor
violation of Penal Code1 section 288, subdivision (c)(1) and was required under former
1 Further undesignated statutory references are to the Penal Code.
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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).)
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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.
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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.)
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“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,
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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 that these groups are similarly situated, satisfying the initial step of the equal
protection inquiry. He asserts both crimes are specific intent crimes, they address
identical conduct, and they deal with a similar age group.
Petitioner further asserts no rational basis exists for disparate treatment. He
asserts that “the best argument in support of rational basis is that [section]
288[, subdivision ](c)(1) requires a 10 year age gap and [section] 288[, subdivision ](a)
does not. However, no rational basis can exist for the following outcome; if [petitioner]
committed the exact same act with a child under 14 instead of 15, not only would
[section] 288[, subdivision ](c)(1) simply not . . . apply but his consequences would be
less under [section] 290 with a [section] 288[, subdivision ](a) conviction. No rational
reason can exist for this outcome.” He emphasizes that violation of section 288,
subdivision (a) is the more serious crime, it is classified as a “serious felony” (§ 1192.7,
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subd. (c)(6)) and a “violent felony” (§ 667.5, subd. (c)(6)), it is not a wobbler, and it
carries a higher potential prison term.
The Attorney General maintains the two groups are not similarly situated:
“offenders under subdivision (c)(1) are at least 24 years old and at least 10 years older
than their minor victims—and their behavior is more likely to be predatory—whereas
subdivision (a) lacks an age difference requirement between offenders and victims and
could criminalize consensual acts between peers.” (Fn. omitted.) In the same vein, the
Attorney General argues: “While both subdivisions criminalize lewd and lascivious acts
against children and require the prosecutor to prove the same intent, the age difference
required between the victim and offender for a conviction under [section]
288[, subdivision ](c)(1) make the offenders differently situated. . . . [¶] First, every
subdivision (c)(1) offense requires an age difference of at least 10 years’ difference
between the offender and the victim, an age difference that is presumptively predatory
when a child is involved.” “Second, section 288, subdivision (a) offenders include
people who committed their offense as children, teenagers, and young adults—ages
recognized to be more open to rehabilitation.” (Fn. omitted.) The Attorney General
asserts the registration scheme is supported by several rational bases.
Another panel of this court recently addressed the same issue in Legg, supra,
81 Cal.App.5th 504. For the reasons articulated in Legg, we reject petitioner’s equal
protection claim.
III
Analysis
The acts proscribed under subdivisions (a) and (c)(1) of section 288 are similar “in
that they both prohibit a person from willfully and lewdly committing any lewd or
lascivious act upon or with any part of the body of a child.” (Legg, supra,
81 Cal.App.5th at p. 512; see § 288, subds. (a), (c)(1).) However, subdivision (a)
requires that the victim be under 14 years old, whereas subdivision (c)(1) requires both
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that the victim be 14 or 15 years old and that the perpetrator is at least 10 years older than
the victim. (§ 288, subds. (a), (c)(1).) “The inclusion of the decade age difference in . . .
subdivision [(c)(1)] reflects a recognition that a ‘sexually naïve’ [citation] child of 14 or
15 could fall victim to a more experienced adult, a vice the Legislature was attuned to
and took action to prevent.” (People v. Paz (2000) 80 Cal.App.4th 293, 297.) “ ‘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.’ ” (Legg, at p. 512, quoting People v.
Cavallaro (2009) 178 Cal.App.4th 103, 114 (Cavallaro).) This legislative concern is not
always present when an offender violates section 288, subdivision (a). “Thus, 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.” (Legg, at p. 512.)
In making his “similarly situated” argument, petitioner relies extensively on
People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), overruled in part in Johnson,
supra, 60 Cal.4th 871. (AOB 15-21) In Hofsheier, the defendant had pled guilty to oral
copulation of a 16-year-old girl in violation of former section 288a and was subject to
lifetime mandatory registration under section 290. (Hofsheier, at pp. 1192-1193.) The
defendant on appeal asserted an equal protection claim on the ground that a person
convicted of unlawful sexual intercourse with a minor in violation of section 261.5 under
the same circumstances would not be subject to mandatory registration. (Hofsheier, at
p. 1193.) The Supreme Court agreed with the defendant and held that “to subject
defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A)
would deny defendant the equal protection of the laws.” (Id. at p. 1193.) In concluding
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the two groups were similarly situated, the Supreme Court in Hofsheier stated the “only
difference between the two offenses is the nature of the sexual act.” (Id. at p. 1200.)
However, the Supreme Court subsequently overruled Hofsheier on this point, stating that,
“[c]ontrary to Hofsheier’s observation, ‘the nature of the sexual act’ is not the ‘only
difference’ between unlawful sexual intercourse and nonforcible oral copulation.”
(Johnson, at p. 884.) In any event, unlike Hofsheier, “here, the differences between the
groups petitioner identifies is not the nature of the sexual act.” (Legg, supra,
81 Cal.App.5th at p. 513.) In fact, petitioner asserts that, here, “the nature of the lewd
and lascivious acts are the exact same.”
Petitioner also relies on Hofsheier to argue the age differences in the statutes
should not prevent a finding that persons convicted under section 288, subdivision (a) or
section 288, subdivision (c)(1) are similarly situated. However, the Supreme Court, in
subsequently overruling Hofsheier in part, stated that “Hofsheier’s equal protection
analysis is fundamentally flawed and deserves to be overruled.” (Johnson, supra,
60 Cal.4th at p. 879.) That criticism applies to aspects of the analysis on which petitioner
relies. We conclude the circumstances here are more analogous to those in Cavallaro,
supra, 178 Cal.App.4th 103, upon which the Attorney General relies. “In Cavallaro, the
defendant was convicted under section 288, subdivision (c)(1), and he asserted that he
was similarly situated to persons of the same age convicted of unlawful, nonforcible
sexual intercourse with a 14- or 15-year-old child under section 261.5, subdivision (d).
However, the appellate court concluded the groups were not similarly situated because
while section 261.5, subdivision (d) required that the defendant be at least 21 years of
age, it did not require a minimum age differential between defendant and victim,”
whereas section 288, subdivision (c)(1) does. (Legg, supra, 81 Cal.App.5th at p. 513,
citing Cavallaro, at p. 114.)
In addition, section 288, subdivision (c)(1) can only apply to adult offenders 24
years old or older, as that subdivision applies only to individuals at least 10 years older
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than their 14- and 15-year-old victims. (§ 288, subd. (c)(1).) Conversely, section 288,
subdivision (a) is not so limited and may apply to younger offenders including teens and
adults under 24 years old (§ 288, subd. (a)), who may have greater prospects for reform
(see In re Williams (2020) 57 Cal.App.5th 427, 431 [discussing U.S. Supreme Ct. cases
and their discussions of “juveniles and their greater prospects for reform”]). For this
reason, too, these two groups of offenders are not similarly situated.
“Petitioner’s equal protection challenge fails because he has not established that
he, as an individual required to register as a sex offender for life due to his conviction
under section 288, subdivision (c)(1), is subjected to unequal treatment as compared to a
similarly situated group. In any event, even were we to agree with petitioner that the
similarly situated prerequisite is satisfied, he has failed to show that there is no rational
relationship between the challenged statutory disparity and some legitimate governmental
purpose. 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.”
(Legg, supra, 81 Cal.App.5th at p. 514.)
“The 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. [Citation.] The 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. [Citation.] Thus,
although those convicted of offenses under section 288, subdivision (a) are subject to
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harsher penalties (three, six, or eight years of imprisonment; convictions classified as a
‘super strike’ [citation]) than those convicted under subdivision (c)(1) (one, two, or three
years’ imprisonment; offenses may be prosecuted as a misdemeanor or a felony), the
Legislature reasonably could have determined that section 288, subdivision (a) offenses
could be committed by younger offenders with more potential to rehabilitate–despite the
severity of the offense–than their subdivision (c)(1) counterparts, who are necessarily
older and more predatory, even if their conduct occurs with an older victim.” (Legg,
supra, 81 Cal.App.5th at p. 515, fn. omitted.)
Petitioner advances arguments in his opening brief and his reply brief concerning
over- and under-inclusion. On this point, we note, as did the court in Legg, that, while
some offenders under section 288, subdivision (a) may be the same age as offenders
under subdivision (c)(1) of that section, “there is no minimum age requirement set forth
in subdivision (a); therefore, whether some offenders under subdivision (a) could possibly
be the same age as offenders under subdivision (c)(1) does not affect our analysis.”
(Legg, supra, 81 Cal.App.5th at p. 515, fn. 3.) “ ‘A classification is not arbitrary or
irrational simply because there is an “imperfect fit between means and ends” ’ [citation],
or ‘because it may be “to some extent both underinclusive and overinclusive.” ’ ”
(Johnson, supra, 60 Cal.4th at p. 887.) “Consequently, any plausible reason for
distinguishing between” subdivisions (a) and (c)(1) of section 288 for purposes of tier-
three lifetime registration “need not exist in every scenario in which the statutes might
apply.” (Johnson, at p. 887.) “At bottom, the Legislature is afforded considerable
latitude in defining and setting the consequences of criminal offenses. [Citations.] In
light of the legitimate purposes of sex offender registration, and the plausible and actual
legislative concerns noted above, it cannot be said that the differentiated treatment” under
subdivisions (a) and (c)(1) of section 288 “ ‘so lack[s] rationality’ that it constitutes ‘a
constitutionally impermissible denial of equal protection.’ ” (Johnson, at p. 887.)
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“[B]ecause here a plausible basis does exist for the challenged statutory disparity,
petitioner’s equal protection claim fails.” (Legg, supra, 81 Cal.App.5th at p. 516.)
Having concluded that the groups petitioner identifies are not similarly situated and that,
in any event, a rational basis exists for the disparate treatment, we need not address
petitioner’s contentions concerning remedies.
Lastly, the Attorney General requested that we take judicial notice of a superior
court decision and subsequent order in an unrelated matter. The request was deferred
pending calendaring and assignment of the panel. We deny the Attorney General’s
request for judicial notice “ ‘because the proffered material is unnecessary to our
decision.’ ” (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 567, 594, fn. 13,
quoting City of Emeryville v. Cohen (2015) 233 Cal.App.4th 293, 312, fn. 13.)
DISPOSITION
The order denying petitioner’s petition for a writ of mandate is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.
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DUARTE, J., Concurring.
Although I agree with the entirety of the majority opinion in this case, and
continue to believe we reached the legally correct conclusion in Legg v. Department of
Justice (2022) 81 Cal.App.5th 504, I am concerned by the mandatory imposition of
lifetime registration requirements in misdemeanor cases that resolve by plea, such as this
one. Defendant’s appellate counsel raised this point at oral argument, couched as a
concern about the chilling effect of the tier three classification for this particular statute
on the parties’ ability to agree on a misdemeanor plea.
It certainly seems logical that if the factual basis or the state of the evidence in any
particular case is such that the prosecutor and ultimately the trial judge are amenable to
permitting a plea to a misdemeanor on a Penal Code section 288, subdivision (c)(1)
wobbler, the parties should be permitted to negotiate--and the trial judge permitted to
impose--something other than a lifetime registration requirement in accordance with that
misdemeanor plea. This logic seems particularly evident at the present time, when the
Legislature has been steadily moving toward conferring greater sentencing discretion on
trial judges. Indeed, the establishment of the three-tiered registry reflects that movement.
Thus, although I agree that a rational basis appears for the Legislature to classify
violation of this particular statute as a tier three offense, I am concerned that the
restrictive and nondiscretionary nature of requiring cooperative misdemeanants to
register for life--without any regard to the prosecutors’ and trial judges’ respective
assessments of whether this requirement is actually warranted under the facts and
circumstances of a particular case--may have been inadvertently overlooked.
I write separately because I feel it deserves mention.
/s/
DUARTE, J.
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