Park v. California Dept. of Justice CA1/4

Opinion

Filed 9/29/26 Park v. California Dept. of Justice CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

GREIGORY PARK, Plaintiff and Appellant, A172675 v. (Alameda County CALIFORNIA DEPARTMENT OF Super. Ct. No. 24CV062670) JUSTICE et al., Defendants and Respondents.

Plaintiff Greigory Park appeals from the trial court’s judgment in favor of the California Department of Justice (Department). The court entered judgment after sustaining the Department’s demurrer to Park’s complaint challenging on equal protection grounds the statutory requirement that he register as a sex offender for life under Penal Code section 290, subdivision (d)(3). Park contends the trial court erred both in sustaining the demurrer and in denying him leave to amend. We conclude Park has forfeited his equal protection claim on appeal by failing to address whether or not there is a rational basis for his lifetime registration requirement. We further conclude that he fails to show the trial court erred in denying him leave to amend, particularly in light of the holding in Legg v. Department of Justice (2022) 81 Cal.App.5th 504 (Legg) that there 1 is a rational basis for such lifetime registration in a case involving very similar contentions. Accordingly, we will affirm. I. BACKGROUND In February 2024, Park filed a complaint for declaratory and injunctive relief against the Department based on a single cause of action. Park alleged that a law passed in 2017, California’s “ ‘Tiered Registry Law’ ” (Pen. Code,1 §§ 290, subd. (d), 290.5), as applied to him violated his equal protection rights under the California Constitution. According to Park, he was 66 years old. Over 20 years before, in 2001, he pleaded guilty and was convicted of violating section 288, subdivision (c)(1).2 He received probation, which he completed successfully. In 2008, the trial court granted his motion to reduce his conviction under section 288, subdivision (c)(1) to a misdemeanor. Park further alleged that the Tiered Registry Law, adopted in 2017, by assigning him to tier three and thereby requiring him to register as a sex offender for life (§ 290, subd. (d)(3)), was arbitrary and irrational and, as applied to him, a violation of his state equal protection rights. He contrasted his lifetime registration to persons convicted of a violation of section 288, subdivision (a)3, who are assigned to tier two (§ 290, subd. (d)(2)), and able to petition to end registration after 20 years. He summarized his position as follows: “In assigning [Park] to Tier 3, the Tiered Registry Law irrationally 1 Undesignated statutory references are to the Penal Code.

2 Section 288, subdivision (c)(1), just as it did in 2001, prohibits a lewd and lascivious act against a child who is 14 or 15 years old by a person at least ten years older than the child. (Stats. 1998, ch. 22, § 2.) 3 Section 288, subdivision (a) prohibits lewd and lascivious acts against a child under 14 years of age regardless of the age of the offender.

2 deprives [Park], a person who presently has a misdemeanor conviction for section 288(c)(1), of the opportunity to petition for termination of his registration requirement. There is no rational basis for depriving [Park] of the opportunity to petition for termination of his registration requirement, while extending this benefit and protection to person [sic] convicted of the objectively more severely punished offense of section 288(a).” The Department demurred to the complaint. It argued that Park’s cause of action failed to state facts sufficient to constitute a cause of action under controlling authority, in particular Legg, supra, 81 Cal.App.5th 504. It contended that Legg established that there was a rational basis for placing Park in tier three. Park opposed the demurrer, arguing Legg was distinguishable because it was a facial rather than an as-applied challenge. He further contended that, if necessary, he would be able to amend his complaint by alleging additional facts applicable to him. Specifically, he represented in his opposition brief that in 2003, a psychologist had prepared a confidential psychological assessment of him for family court child custody proceedings in which the psychologist concluded that his sexual misconduct “appeared to be an isolated instance,” that “there was ‘little likelihood’ that [he] would sexually abuse others,” and that his “act was an unplanned one of opportunity unlikely to be repeated.” Park contended that if he were psychologically assessed again, the assessment would conclude there was a very low risk of his reoffending, and that he had not reoffended. The court sustained the demurrer without leave to amend. It explained its ruling as follows: “Park’s argument is foreclosed by . . . Legg v. Department of Justice (2022) 81 Cal.App.5th 504. In Legg, the Court applied rational basis review 3 to a virtually identical challenge because sex offender status does not implicate a suspect class or fundamental right. (Id. at 511.) The Court held that defendants under § 288(a) and (c)(1) are not similarly situated, a holding that is no longer relevant to an equal protection analysis under the State Constitution. (People v. Hardin (2024) 15 Cal.5th 834, 850 [(Hardin)].) The Court also held, however, that Plaintiff there had failed to show a lack of rational relationship between the statutory disparity (the same statutory disparity at issue here) and a legitimate government purpose. (Legg, 81 Cal.App.5th at p. 514.) The Court observed that defendants under § 288(c)(1) are necessarily predatory older adults (i.e., necessarily 24 years or older): ‘The Legislature could have reasonably determined that the challenged statutory disparity is warranted to serve the legitimate government purpose of protecting the public from considerably older adults who have prayed [sic] on young and vulnerable children.’ (Id. at p. 515.) “Park’s effort to distinguish Legg based on his own particular circumstances (characterized as an ‘applied’ challenge) is unavailing. Legg expressly recognized the harsher penalties available to be imposed under § 288(a). (81 Cal.App.5th at p. 515.) It . . . appears to be the case that, under the statutory scheme, two persons of exactly the same age could commit the same conduct, with the result that the perpetrator against the younger victim (e.g., 13 years old) having the option to petition for termination of his or her registration requirement, and the perpetrator against the older victim (e.g., 15 years old) being foreclosed from that opportunity. Legg nonetheless found rational the differential in registration requirements given the greater potential for rehabilitation for younger offenders convicted of a PC § 288(a) offense as compared to the ‘necessarily older and more predatory’ offenders convicted under § 288(c)(1). Indeed, as Park’s Complaint observes, the 4 distinction between Tier 2 and 3 registration requirements is premised precisely on a risk differential. (Complaint, ¶ 16.) The Court also observes that Petitioner was approximately 43 year[s] old when he committed his offense (Complaint, ¶ 8), which is the same age as petitioner in Legg.” The court entered judgment for the Department. Park filed a timely notice of appeal from the judgment. II. DISCUSSION A. Legal Standards Park does not contend that he is part of a suspect class for equal protection purposes. Generally, “[w]here . . . 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.” ’ [Citation.] ‘This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] 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, 882.) This rational basis test applies to challenges that are both facial and as applied. (Hardin, supra, 15 Cal.5th at p. 839.) Under this test, courts presume the subject statutory classification being challenged is valid “ ‘until 5 the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.’ ” (Id. at p. 852.) “ ‘A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a question of law. [Citations.]’ [Citation.] Thus, the standard of review on appeal is de novo. [Citation.] ‘. . . “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” ’ ” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) An equal protection claim is also subject to de novo review. (Legg, supra, 81 Cal.App.5th at p. 509.) B. Analysis 1. Park Has Forfeited His Equal Protection Claim by Failing To Present a Rational Basis Analysis The Department contends that Park has forfeited his equal protection claim on appeal by his failure to address at all in his opening brief whether there is a rational basis for the requirement that he register as a sex offender for life, as compared to those convicted of a sex crime under section 288, subdivision (a). Park fails to address the Department’s rational basis analysis in his reply brief as well.4 We agree that he has forfeited his claim because of this critical failure. (See Doe v. California Department of Justice (2009) 173 Cal.App.4th 1095, 1101–1102, 1115 [noting with regard to a due process challenge to the disclosure of information regarding sex offenders 4 Rather than address the rational basis test, Park argues, based on a passage in Hardin regarding special circumstance murder, that the court erred because there was nothing “ ‘uniquely serious’ ” about his offense. (See Hardin, supra, 15 Cal.5th at p. 839.) This, however, is not the standard, and Hardin makes clear the court did not intend its reference to be applied in place of the rational basis test. (See ibid. [“The standard we apply here, rational basis review, is necessarily deferential.”].)

6 required to register under section 290 that “[a]n appellant . . . forfeits an issue by failing to raise it in his or her opening brief”].) Even if we were to address the merits of Park’s equal protection argument, we would likely reject it. As the trial court concluded, Legg is a solid basis for concluding there is a rational basis for requiring Park to register for his lifetime as a sex offender. As the Legg court held, the Legislature could rationally conclude that a sex offender convicted of a lewd and lascivious act under section 288, subdivision (c)(1), who therefore was more than 10 years older than the 14 or 15 year old minor victim and had reached adulthood with predatory instincts sufficiently intact to commit the crime, presented more of an ongoing danger to public safety than offenders convicted of lewd and lascivious act under section 288, subdivision (a), who were not necessarily 10 years older than the victim and had not necessarily reached adulthood at the time they committed the crime. (Legg, supra, 81 Cal.App.5th at pp. 514–515.)5 Park focuses his argument on his claim that the court ignored that his equal protection claim was not a facial challenge, as he contends was the case by the defendant in Legg, but an as-applied challenge, which he contends is easier to prove. As our discussion of the law indicates, whether or not we agree with his perspective—the Department does not—this distinction does not matter because both claims require a rational basis analysis, which is 5 Although the Legg court discussed whether or not offenders under the same two statutes we consider here were similarly situated (Legg, supra, 15 Cal.5th at p. 514), our Supreme Court subsequently held in Hardin, supra, 15 Cal.5th at pages 850 to 851 that this part of an equal protection analysis under our state Constitution is not relevant when, as here, a litigant challenges a classification “appearing on the face of the law.”

7 absent from Park’s briefing. We therefore will not resolve the parties’ debate on this matter. 2. Park Does Not Show He Was Entitled To Amend His Complaint To a significant extent, Park relies on his as-applied contention to argue that the trial court should have granted him leave to amend his complaint. “ ‘When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect . . . .’ ” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371.) “ ‘The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect.’ ” (Ibid.) “Ordinarily, an appellant who seeks leave to amend attempts to show that the trial court’s denial of leave to amend was error by showing on appeal what facts could be pleaded to cure defects in the complaint and how they state a cause of action. [Citation.] But for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court’s denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’ ” (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411.) In support of his amendment argument, Park relies on his contentions in his opposition brief below that (1) a psychologist prepared a confidential psychological assessment of him in 2003 in which the psychologist that his sexual misconduct “appeared to be an isolated instance and there was ‘little likelihood’ that [he] would sexually abuse others,” and that his “act was an unplanned one of opportunity unlikely to be repeated,” and (2) that a new assessment, if done, would reach the same conclusion. These brief 8 contentions are without any proffer of evidence regarding a current assessment, or even a proffer, such as by a request for judicial notice, of the full 2003 assessment. Therefore, the trial court could reasonably conclude these contentions were too speculative and limited to show a reasonable probability that Park could cure his complaint defects by amendment. Further, Park fails to grapple with the fact that the Tiered Registry Law does not provide for individualized consideration of postconviction circumstances in determining the tier in which a convicted sex offender belongs, nor does he present any legal authority showing the court should have given his alleged postconviction performance any more consideration than it did in deciding he could not solve his pleading problems by amendment. Because Park fails to show there was a reasonable probability that he could successfully amend his complaint, particularly in light of Legg, he does not show that the court erred in denying him leave to amend. III. DISPOSITION The judgment is affirmed. The Department is awarded costs of appeal. STREETER, J.

WE CONCUR:

BROWN, P. J. GORDON, J.* * Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.