Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County No. BS115695 of Los Angeles. David P. Yaffe, Judge.
Stuart J. Faber Law Offices and Stuart J. Faber for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Janet E. Neeley, Supervising Deputy Attorney General, and Jason Tran and Stephanie C. Brenan, Deputy Attorneys General, for Defendant and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
California’s version of “Megan’s Law,” as amended in 2005, allows certain persons who have been convicted of specified sex crimes, upon successful completion of probation, to apply to have their names and other identifying information excluded from an internet web site maintained by the California Department of Justice (the Department). (Pen. Code, 290.46, subd. (e).) The exclusion is available only to a parent, stepparent, sibling or grandparent of the victim, and only if the crime did not involve oral copulation or penetration. (§ 290.46, sub. (e)(2)(C)(i).) In 2006, the Legislature expressly made the amendment retroactive. (§ 290.46, subd. (e)(3).)
All statutory references are to the Penal Code, unless otherwise specified.
Antonio Cardona Mascorro was convicted in 1999 of two felony counts of lewd or lascivious acts upon a 14 or 15-year-old child. (§ 288, subd. (c)(1).) He was ordered to and has been registered continuously as a sex offender under section 290. The crimes of which Mascorro was convicted did not involve oral copulation or penetration, and Mascorro successfully completed the terms of his probation. He sought an order prohibiting the Department from posting his information on the Department’s web site, contending that, while he was not the victim’s parent, stepparent, sibling or grandparent, he was a relative of and stood in loco parentis with the victim. The Department denied his application, and the trial court denied his petition for a writ of mandate.
Mascorro appeals, contending the limitation of the exclusion to parents, stepparents, siblings and grandparents is unconstitutional as applied to him, and that he was denied the equal protection of the law under the California and United States Constitutions. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
California’s Megan’s Law, which provides for the collection and public disclosure of information regarding sex offenders required to register under section 290, is described in detail in Doe v. California Department of Justice (2009) 173 Cal.App.4th 1095, 1101-1103 (G.G. Doe). Section 290.46, which requires the Department to maintain an internet web site that includes information on persons convicted of specified sex offenses, was enacted in 2004. Section 290.46 originally allowed offenders to apply for exclusion from the Megan’s Law web site on proof they successfully completed probation granted under section 1203.066, which at the time allowed probation for certain serious sex offenses when the defendant was the victim’s parent, stepparent, relative, or a member of the victim’s household. (G.G. Doe, supra, 173 Cal.App.4th at p. 1102.) Mascorro qualified for this exclusion, and the Department granted him exclusion from the web site on May 20, 2005.
The exclusion applied to “‘a very narrow category of non-violent, intra-familial offenders convicted of child molestation who, unlike all other sex offenders, are eligible for probation.’ The Senate Committee on Public Safety explained that sometimes such cases can be prosecuted only because ‘family member witnesses are willing to cooperate with prosecutors because of the availability of probation.’” (G.G. Doe, supra, 173 Cal.App.4th at pp. 1102-1103.)
Effective October 7, 2005, the Legislature amended section 290.46 to limit the availability of the exclusion, and it now applies only when an offender proves he was the victim’s parent, stepparent, sibling, or grandparent, and that the crime did not involve either oral copulation or penetration. (§ 290.46, subd. (e)(2)(C)(i).) Effective September 20, 2006, the Legislature expressly made the 2005 amendment retroactive. (§ 290.46, subd. (e)(3).) As a result, Mascorro became ineligible for exclusion, because he is the husband of the victim’s first cousin once removed, rather than a parent, stepparent, sibling or grandparent of the victim.
The amended exclusion applies to “[a]n offense for which the offender successfully completed probation, provided that the offender submits to the department a certified copy of a probation report, presentencing report, report prepared pursuant to Section 288.1, or other official court document that clearly demonstrates that the offender was the victim’s parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object.” (§ 290.46, subd. (e)(2)(C)(i).)
Section 290.46, subdivision (e)(3) provides: “If the department determines that a person who was granted an exclusion under a former version of this subdivision would not qualify for an exclusion under the current version of this subdivision, the department shall rescind the exclusion, make a reasonable effort to provide notification to the person that the exclusion has been rescinded, and, no sooner than 30 days after notification is attempted, make information about the offender available to the public on the Internet Web site as provided in this section.”
Mascorro was informed of the change in the exclusion requirements on March 13, 2008, and thereafter submitted a new application for exclusion, which was denied on June 18, 2008. On July 8, 2008, Mascorro filed a petition for writ of mandamus, asking for a writ directing the Attorney General to remove him from the Megan’s Law web site pursuant to section 290.46, subdivision (e). The trial court denied Mascorro’s petition, finding Mascorro was not within the class of persons who may apply for exclusion; there was no evidence to support his contention that “‘his role embodied all the substance of a parent’”; and the application of the statute to him did not deprive him of the equal protection of the laws.
Mascorro’s application contained his declaration stating, among other things, that he was related to the victim through marriage; his wife and the victim’s mother were first cousins; the victim called him “Uncle Tony”; the victim did not live with Mascorro, but she and her mother spent “many evenings and weekends as well as holidays” at the Mascorro home and “slept over” many times; he was “convinced that the victim regarded [him] as a father figure”; he was 67 years old and operated a business along with his wife of over 30 years, employing some 65 people.
Judgment denying Mascorro’s petition for a writ of mandate was entered on September 11, 2008, and Mascorro filed a timely appeal.
DISCUSSION
Mascorro contends that to limit exclusion from the Megan’s Law web site to parents, stepparents, grandparents and siblings violates his rights under the federal and state constitutions to the equal protection of the laws. A similar claim was made in G.G. Doe, supra, 173 Cal.App.4th 1095, by a registered sex offender who was the victim’s uncle. The G.G. Doe court rejected the contention, as do we, and Mascorro’s claims of other constitutional violations likewise have no merit.
1. The equal protection claim.
Both the federal and state constitutions guarantee the equal protection of the laws to all persons. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) The principles under which an equal protection claim is analyzed are well established. The first prerequisite to a meritorious claim is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier) [the equal protection clause requires more of a state law than nondiscriminatory application within the class it establishes; “[i]t also imposes a requirement of some rationality in the nature of the class singled out”].)
If it is determined that a statutory classification treats two similarly situated groups differently, the court must determine whether the government has a sufficient reason for distinguishing between them. (G.G. Doe, supra, 173 Cal.App.4th at p. 1111.) There are three levels of analysis. If the statutory distinction being challenged involves a suspect classification or touches upon a fundamental interest, it is subject to strict scrutiny and can be upheld only if it is necessary to achieve a compelling state interest. (Hofsheier, supra, 37 Cal.4th at p. 1200.) Classifications based on gender are subject to an intermediate level of review. (Ibid.) “But most legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose.” (Ibid.)
In this case, assuming the statutory scheme treats two similarly situated groups differently, the rational relationship test applies, because the statute does not involve a suspect classification and does not touch upon a fundamental interest. Under the rational relationship test, “‘“‘a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are “plausible reasons” for [the classification] “our inquiry is at an end.”’”’” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482.) The party raising an equal protection challenge has the burden of establishing unconstitutionality. (G.G. Doe, supra, 173 Cal.App.4th at p. 1111.)
Mascorro argues that the strict scrutiny test should be applied, because the classification affects his fundamental right to privacy. The applicable precedents lead us to conclude otherwise. In Doe v. Moore (11th Cir. 2005) 410 F.3d 1337, the Eleventh Circuit held that “a state’s publication of truthful information that is already available to the public does not infringe the fundamental constitutional rights of liberty and privacy” and therefore “we do not review the statute with strict scrutiny, but only under a rational basis standard.” (Id. at p. 1345; see also Doe v. Tandeske (9th Cir. 2004) 361 F.3d 594, 597 [“persons who have been convicted of serious sex offenses do not have a fundamental right to be free from the registration and notification requirements set forth in the Alaska statute”]; Russell v. Gregoire (9th Cir. 1997) 124 F.3d 1079, 1094 [collection and dissemination of information under Washington’s version of Megan’s law “does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property”]; G.G. Doe, supra, 173 Cal.App.4th at p. 1111 [applying rational relationship test to claim that the section 290.46 exclusion violated sex offender’s right to equal protection of the law].)
This case is virtually identical to G.G. Doe, where the court rejected an equal protection challenge by the victim’s uncle to the statutory exclusion for parents, stepparents, siblings and grandparents. In G.G. Doe, the court pointed out:
Extended relatives “such as aunts, uncles and cousins” are not similarly situated to parents, stepparents, siblings and grandparents, “because the latter group is more likely to live in the same home as a child victim of sexual abuse, and to have closer ties to the child. It appears the Legislature intended to preserve close family ties when possible, and the privacy of child victims, by not posting personal information on the Web site about the victims’ closest relatives.” (G.G. Doe, supra, 173 Cal.App.4th at p. 1111.)
Even if the two groups were similarly situated, the limitation of the exclusion is rationally related to a legitimate governmental objective. (G.G. Doe, supra, 173 Cal.App.4th at p. 1111.) The legislative history of the amendment showed that the Legislature was concerned about equal protection challenges to the previous law, which had allowed registrants who committed more serious child molestation offenses to obtain exclusion, while those who committed less serious offenses (mere fondling) did not qualify for exclusion because probation had been granted under section 1203, rather than section 1203.066. (Id. at p. 1112.) In revising the exclusion to apply only to parents, stepparents, siblings and grandparents, “[t]he Senate Committee sought to balance the interests of narrowing the exclusion to protect the public and protecting children victimized by their closest relatives.” (Ibid.) The Senate Committee’s report stated that legislators should consider “‘whether an approach more narrowly crafted than current law would assure the public safety interests of Megan’s Law without unnecessarily exposing families where little value in terms of enhanced public safety is likely to be gained,’” and stated that the approach subsequently enacted “‘may promote and balance these interests. These types of true incest cases … are predicated on a closer familial relationship where the offender is more likely to live with the victim and recidivism rates are low.’” (G.G. Doe, supra, 173 Cal.App.4th at p. 1112, quoting Sen. Com. On Pub. Safety, Analysis of Assem. Bill No. 1323 (2005-2006 Reg. Sess.) as amended Apr. 13, 2005, p. P, for hearing on June 28, 2005 (italics added in G.G. Doe).)
Accordingly, G.G. Doe found no equal protection violation in limiting the exclusion to parents, stepparents, siblings and grandparents, “as there is a rational basis for differentiating between them and more distant family members.” (G.G. Doe, supra, 173 Cal.App.4th at p. 1112.)
We detect no flaw in G.G. Doe’s analysis and no basis for reaching a different conclusion in this case, where Mascorro is the husband of the victim’s first cousin once removed. Mascorro says he “respectfully disagrees with the holding in G.G. Doe,” because “[t]he protection of family victims of certain family offenders should not be considered as a rational basis for treating two groups of family members differently.” But Mascorro cites no authority, and gives no reasoned explanation, for his claim that the statutory classification is not rational. The classification is rational, because it is “‘predicated on a closer familial relationship where the offender is more likely to live with the victim ….’” (G.G. Doe, supra, 173 Cal.App.4th at p. 1112.) Moreover, Mascorro overlooks the repeatedly stated principle that the law “‘“‘need not be in every respect logically consistent with its aims to be constitutional,’”’” and the legislature “‘may select one phase of one field and apply a remedy there, neglecting the others.’” (G.G. Doe, supra, 173 Cal.App.4th at p. 1112; see also FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314-315 [“[o]n rational-basis review, a classification in a statute... comes to us bearing a strong presumption of validity, … and those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it’”; “the absence of ‘“legislative facts’” explaining the distinction ‘[o]n the record,’ … has no significance in rational-basis analysis”].)
In short, as a multitude of cases have said, “‘“‘[w]here there are “plausible reasons” for [the classification], “our inquiry is at an end.”’”’” (Hofsheier, supra, 37 Cal.4th at p. 1201.) That is precisely the case here.
During oral argument, counsel for appellant cited the recent decision of People v. Thompson (2009) 177 Cal.App.4th 1424 in support of his position. The court held that an order imposing mandatory sex offender registration on a defendant because of his conviction for a mutually voluntary act of sodomy with a 17-year-old minor violates his right to equal protection, as guaranteed by the federal and California Constitutions. (Id. at p. 1431.) Thompson does not change the result here. This appeal turns on the nature of the relationship between victim and perpetrator, not the nature of the crime.
2. Other constitutional claims.
Mascorro also claims that the limited exclusion from Megan’s Law infringes upon his constitutional right of privacy and violates the prohibitions on cruel and unusual punishment and ex post facto laws. None of these claims has merit.
Mascorro appears also to contend that his procedural due process rights have been violated and that he is entitled to “a judicial inquiry into [his] status as well as his nondangerousness.” This claim was foreclosed in Connecticut Dept. of Public Safety v. Doe (2003) 538 U.S. 1, which held that public disclosure of Connecticut’s sex offender registry, without affording registrants a predeprivation hearing to determine whether they are likely to be “currently dangerous,” did not violate 14th Amendment procedural due process requirements. The Supreme Court explained that the registry requirements were based on the fact of previous conviction, not the fact of current dangerousness, and “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” (Id. at pp. 4, 7-8.)
In Smith v. Doe (2003) 538 U.S. 84, the United States Supreme Court held that Alaska’s sex offender registration and notification law did not constitute retroactive punishment forbidden by the Ex Post Facto Clause of the United States Constitution, thus disposing of Mascorro’s Eighth Amendment and ex post facto claims. The court held that the Alaska statute was civil and nonpunitive (id. at pp. 96, 105), observing that our system “does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” (Id. at p. 98.) The court expressly observed that “[t]he fact that Alaska posts the information on the Internet does not alter our conclusion [that the statute is not punitive],” and that “[t]he purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” (Id. at p. 99.) The court further noted that the “lasting and painful impact on the convicted sex offender … flow[s] not from the [statute’s] registration and dissemination provisions, but from the fact of conviction, already a matter of public record.” (Id. at p. 101; see also G.G. Doe, supra, 173 Cal.App.4th at p. 1109 [ex post facto argument lacks merit under Smith v. Doe; California law is substantively identical to Alaska law, and serves a protective rather than punitive purpose].)
Finally, as we have already pointed out (see footnote 6, ante), Mascorro’s privacy rights are not implicated by the disclosure provisions of the statute. (See Doe v. Moore, supra, 410 F.3d at p. 1345 [state’s publication of truthful information already available to the public does not infringe fundamental constitutional rights of liberty and privacy]; Doe v. Tandeske, supra, 361 F.3d at p. 597 [persons convicted of serious sex offenses have no fundamental right to be free from the notification requirements in Alaska statute]; Russell v. Gregoire, supra, 124 F.3d at p. 1094 [collection and dissemination of information under Washington’s version of Megan’s law “does not violate any protected privacy interest”].)
Mascorro also asserts that the Legislature has unlawfully delegated judicial power to the executive branch “[b]y empowering the office of the Attorney General to impose the Megan’s Law requirement on a defendant convicted of a sex crime....” Again Mascorro is mistaken. As we have seen, the courts have held that the disclosure requirements of sex offender registration statutes do not constitute punishment. Nor does the Department of Justice exercise judicial power or discretion when it determines whether or not a sex offender qualifies for exclusion from the site; the Department merely enforces the statute, which applies if specified requirements are met: the offender has successfully completed probation and submits a certified copy of a court document that “clearly demonstrates that the offender was the victim’s parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration ….” (§ 290.46, subd. (e)(2)(C)(i).) Equally misplaced is Mascorro’s claim that he is entitled to a jury determination of whether the facts of his case require his inclusion on the web site. (See People v. Garcia (2008) 161 Cal.App.4th 475, 486 [because sex offender registration is not considered a form of punishment under the state or federal constitutions, the requirements of the Apprendi-Blakely-Cunningham line of cases do not apply to a determination whether to require registration as a sex offender].)
DISPOSITION
The judgment is affirmed. The Attorney General is to recover his costs on appeal.
We concur: FLIER, Acting P.J., BIGELOW, J.