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CA: Appellate Court Rejects Challenge to Tiered Registry Law

Source: ACSOL

The Third District Court of Appeals has rejected a challenge to the Tiered Registry Law that, if granted, would have reassigned individuals convicted of Penal Code Section 288(c) from Tier 3 to Tier 2.  According to the court’s decision, individuals convicted of Penal Code Section 288(c) are not similarly situated to individuals convicted of Penal Code Section 288(a) who are assigned to Tier 2.  

In the challenge, attorney Jill Klein argued that individuals convicted of both offenses were based on the same type of conduct and therefore the equal protection clause of the state constitution required assignment to the same tier.  She also noted that the age of victims was lower (under 14) for convictions of Penal Code Section 288(a) as compared to convictions of Penal Code Section 288(c) (14 or 15 years old).

The court disagreed with the challenge noting that there can be an age difference between the offender and the victim of at least 10 years required for those convicted of Penal Code Section 288(c).  By comparison, there is no age difference required between the offender and the victim for those convicted of Penal Code Section 288(a).  The court therefore reasoned that some individuals convicted of Penal Code Section 288(a) could be minors and young adults.

In its decision, the court acknowledged that there is no explanation in the legislative history of the Tiered Registry Law regarding why an individual convicted of an offense involving an older victim should be assigned to the highest tier, Tier 3.  The court, however, created its own rationale for that tier assignment.  According to the court, 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.”

Because this appellate court decision, Legg v. Department of Justice, is controlling in all cases heard by this court of appeals, a pending case filed in Sacramento Superior Court has been withdrawn.  There is, however, a similar case challenging the assignment of individuals convicted of Penal Code Section 288(c) that is pending in Los Angeles Superior Court.  If that case is appealed, a different appellate court would consider the appeal.

Download a PDF of the decision:

Legg v Department of Justice – Tiered Registry – June 2022

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The courts logic is flawed. I know of several individuals who were more than 10 years older than their victims who were also under the age of 14, and they were charged with 288a. So, they are able to get off in 20 years for an offense against someone under the age of 14 when they were greater than 10 years older than the victim… not being young adults or other minors. They have their tier assignment proving this.

Courts shouldn’t opine or pontificate on what they believe another body has done and stick to what is known. If I want that, then I will turn on the mass media and their idiocy.

“the court acknowledged that there is no explanation in the legislative history of the Tiered Registry Law”
So they admitted that it’s a flawed system, but don’t want to address it rather they find a loophole to continue its legality.

I can’t be the only one wondering, so I’ll bite the bullet. Typically if an appellate court shoots something down, is there other recourse one could do or is it dead in the water? This article mentions a similar case in a different jurisdiction, is it a matter of bringing it to a different county? Can I get an ELI5 explanation?

Asinine.

Lesson learned for the other court filing.

Do we have confirmation that 288c1’s that are reduced via 17b are tier 1?

The courts said:

The court disagreed with the challenge noting that there can be an age difference between the offender and the victim of at least 10 years required for those convicted of Penal Code Section 288(c). By comparison, there is no age difference required between the offender and the victim for those convicted of Penal Code Section 288(a). The court therefore reasoned that some individuals convicted of Penal Code Section 288(a) could be minors and young adults

The courts misunderstood the age segregation.

1) There is above 14 – 15 years of age and under 10 year difference. Not part of 288.

2) There is above 14 -15 years of age and over 10 year difference. 288(c)(1)
Punishment: 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.

3) There is a below 14 years of age. 288(a)
Punishment: is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

Age is important in the scientific world.
… Pedophilia: Prepubescent
… Hebephilia: Pubescent, Ages 11-14
… Ephebophilia: Adolescent, Ages 15 – 19

Applying this to the Penal Code.

  • 288(a) identifies prepubescent and pubescent ages.
  • 288(c)(1) identifies adolescent.

California law, according to the Penal Code, identifies ages 14-15 as the late stage of hebephilia and early stage of adolescent.

California law has different punishment under 14 and ages 14-15.

  • Under age 14: 288(a) is a straight felony, go straight to prison for at least 3 years.
  • Age 14-15: 288(c)(1) can be a wobbler because county jail is an option.

The court was stretching this idea of using “the 10-year age gap” as being very dangerous is quite ludicrous and defies all scientific logic of the segregated penal codes.

And this is how CA court continually erodes people on the registry’s equality. In-person reporting was considered punitive until the 2000’s in California, but other states, like Michigan, identified in-person reporting is still punitive (Snyder). Here, the penal code actually identifies which offense is more egregious by it’s punishment. But the courts and people do not read completely and simply look at numbers and letters. If the letter C is after A, then penal code 288(c) must be worse than 288(a).

IMO, the court erred and did not interpret the law based upon age as well as the 10-year difference between adolescent is placed into a different category b/c adolescents (ages 15-19), not identifying over 10-years is worse. Example, a 14-year old and a 16-year old having any type of relations is excluded from 288(c).

Well, I think most people believe penalties should be harsher for an adult who has sex with a minor. I get it

Is their any updates with moving felony cp from tier 3 to tier 1 like misdemeanor co?

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