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is controlling in all cases heard by this court of appeals, a pending case filed in Sacramento Superior Court has been withdrawn.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.
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