Does Tier System in SB 384 Violate Equal Protection?

Ever since October of 2017, when Senate Bill (SB) 384 was passed (permitting termination of one’s obligation to register as a sex offender), even before it became effective, questions arose and continue to arise as to why a certain person is assigned to Tier 2 and not Tier 1, or why a person is assigned to Tier 3 and not Tier 2.  The underlying concern was that the Tier levels were unfair in many ways.

Our office, quite frankly, has struggled to answer most of these questions and we suspect we are not alone.  Often, our answers vaguely explained that someone who was convicted of a sex offense and later convicted of a serious or violent felony, or a controlled substance offense, was regarded as more of a public safety risk than someone who had only the same conviction for the same sex offense.  Our answers, however, were unsatisfying to even ourselves.

Robert Legg took this issue to the courts for a more definitive answer.  In 2011, he pleaded guilty in San Joaquin County Superior Court to committing a lewd act upon a 14- or 15-year old child, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of defendant and the child (Penal Code § 288(c)(1)), a conviction that required him to register as a sex offender for life under (the now former) Penal Code § 290(b) under the Sex Offender Registration Act.  He was then sentenced to the upper term of three years in state prison.

Senate Bill 384 was then passed in October of 2017, modifying § 290(b) and creating a three-tiered registry for sex offenders convicted in adult court, requiring an offender to register for a minimum of ten or twenty years for certain offenses and for life for others, depending on the offender’s tier.

Mr. Legg’s conviction, however, continued to require lifetime registration under the amendments to § 290(b), while a person convicted of Penal Code § 288(a) is now only subject to a minimum twenty-year registration period (Penal Code § 290(c), (d)(2)(A), (d)(3)(C)(ix)).

In May 2021, Mr. Legg then filed a petition for a writ of mandate in the San Joaquin County Superior Court, arguing the disparate sex offender registration requirements of Penal Code § 288(a) and Penal Code § 288(c)(1) under the new tier registration system violate equal protection. 

The United States and the California Constitutions prohibit denial of equal protection of the laws (U.S. Const., 14th Amend.; Cal. Const., art. 1, § 7, subd. (a)).  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.

Where two groups are similarly situated, federal law has prescribed different levels of scrutiny depending upon whether the law “targets a suspect class.”  Romer v. Evans (1996) 517 U.S. 620, 631.  “At a minimum, a statutory classification must be rationally related to a legitimate government purpose.” Clark v. Jeter (1988) 486 U.S. 456, 461.

Judge Xapuri Vallapudua of the San Joaquin Superior Court denied the petition.

Mr. Legg then appealed this ruling to the Third Appellate District court of appeal in Sacramento.

The Third Appellate District court affirmed the trial court and its reasoning is why this article is presented to our readers.

The appellate court first explained the differences in conduct between § 288(a) and § 288(c)(1).   Penal Code § 288(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.”

Penal Code § 288(c)(1), in contrast, 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.”   

Mr. Legg’s sentence was three years in state prison, perhaps because his case also involved a charge that Mr. Legg, then age 43, also committed rape by force or fear (Penal Code § 261(a)(2)), which was dismissed in plea negotiations.

The appellate court then noted that “[t]he 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.

The appellate court rather quickly explained that those convicted under Penal Code § 288(a) include other teenagers and young adults involved in “teen romances,” whereas those convicted under § 288(c)(1) are much older.  A defendant’s age can provide a meaningful distinction between categories for equal protection purposes.  See In re Arthur W. (1985) 171 Cal. App. 3d 179 (longer period of a driver’s license suspension for minors convicted of DUI does not violate equal protection; a “longer period of license revocation imposed upon minor offenders serves an additional state interest in the protection of the minor, as well as the public at large.”).

Here, the appellate court found that the two groups of convicted people were not similarly situated, so it ended its equal protection analysis at this point, affirming the trial court in denying Mr. Legg’s petition.

For more information about Senate Bill (SB) 384, please click on the following articles: