Opinion
C081839
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CODY ALLEN KIRK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM038276)
Defendant Cody Allen Kirk appeals from the order denying his petition for relief from mandatory sex offender registration on equal protection grounds. He contends that state and federal equal protection principles require that the registration requirement be stricken. He alternatively requests that his appeal be dismissed without prejudice if we determine the trial court lacked jurisdiction to rule on the petition. We affirm the trial court's order.
BACKGROUND
In view of the limited issue raised on appeal, we only briefly summarize the relevant procedural history of this case. In October 1998, defendant (then 13 years old) was adjudged a continued ward of the juvenile court for committing two violations of Penal Code section 647.6, annoying or molesting a child. Between March 1999 and January 2002, defendant's wardship was continued multiple times due to new criminal offenses and probation violations. In March 2002, following a probation violation, defendant was committed to the California Youth Authority (CYA) for a maximum term of 61 months. At the time of his commitment, defendant's most recent juvenile adjudication (January 2002) was for violating section 415.5, subdivision (a), disturbing the peace on school grounds. Because defendant's aggregate term included his prior adjudications for annoying or molesting a child in violation of section 647.6, defendant was required to register as a sex offender upon his release. (§ 290.008, subds. (a) & (c)(2).)
Undesignated statutory references are to the Penal Code.
CYA was renamed the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), effective July 1, 2005. (Welf. & Inst. Code, § 1710, subd. (a).) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to the CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we use the name DJF.
While it is undisputed that defendant was committed to the DJF in part because of the section 647.6 adjudications, no minute order or transcript from the juvenile court confirms that fact. Nevertheless, we can safely assume defendant was in fact committed in part because of the section 647.6 adjudications because he would not be subject to mandatory sex offender registration were that not the case. (In re Alex N. (2005) 132 Cal.App.4th 18, 24.) The transcript from the hearing on defendant's petition to strike the mandatory sex offender registration requirement supports our assumption. At the outset of that hearing, the trial court stated that the abstract regarding defendant's 2002 commitment to the DJF (which is not in the appellate record) indicates that he received an aggregate sentence, including four months on each of the section 647.6 adjudications. Defense counsel and the prosecutor agreed that the section 647.6 adjudications were part of defendant's 2002 DJF commitment.
In January 2015, defendant pleaded no contest to assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) pursuant to a written plea agreement. Prior to sentencing, defendant filed an unlabeled petition requesting the trial court strike the mandatory sex offender registration requirement on equal protection grounds. After defendant was sentenced to four years in prison, and after the submission of further briefing and a hearing, the trial court denied defendant's petition and ordered that the abstract of judgment be amended to reflect the registration requirement. This timely appeal followed.
Defendant's status as a sex offender registrant required him to serve his sentence in state prison. (§ 1170, subd. (h)(3).)
DISCUSSION
A. Whether Issue on Appeal is Cognizable
On appeal, defendant seeks relief from the mandatory sex offender registration requirement on equal protection grounds. He appeals the trial court's order denying his unlabeled petition for relief from this requirement. According to defendant, review of the court's order is proper because, whether the petition is deemed a petition for writ of habeas corpus or a petition for writ of mandate, the trial court had jurisdiction to rule on it, and because the equal protection issue is predominately legal and the only factual issue (i.e., his criminal record) is undisputed. Thus, the threshold issue we must address is whether the trial court had the authority to rule on defendant's petition.
" '[T]here is no statutory authority for a trial court to entertain a postjudgment motion that is unrelated to any proceeding then pending before the court. [Citation.] Indeed, a motion is not an independent remedy. It is ancillary to an on-going action and " 'implies the pendency of a suit between the parties and is confined to incidental matters in the progress of the cause. As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.' " [Citation.] In most cases, after the judgment has become final, there is nothing pending to which a motion may attach.' [Citation.]" (People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer).)
Mandatory sex offender registration and placement in the state sex offender registry are not part of the judgment in a case, but rather collateral consequences of that judgment. Accordingly, the trial court's jurisdiction to issue orders carrying out the judgment does not grant it authority to act on a motion seeking to modify an obligation that was not any part of the judgment. (Picklesimer, supra, 48 Cal.4th at pp. 337-338.)
"[F]or . . . defendant[s] . . . who are no longer in custody and whose appeals are final, claims for . . . relief from mandatory lifetime sex offender registration based on equal protection . . . must be brought by way of a petition for writ of mandate in the trial court." (Picklesimer, supra, 48 Cal.4th at p. 335.) A freestanding postjudgment motion seeking such relief is not cognizable. However, a court may in its discretion treat such a motion as a mislabeled petition for writ of mandate. (Ibid.) "Unlike a petition for writ of habeas corpus, a petition for writ of mandate does not require ongoing custody; unlike a postjudgment motion, it is an independent proceeding that vests the trial court with jurisdiction to act." (Id. at p. 339.)
"For a defendant still in actual or constructive custody, a petition for writ of habeas corpus in the trial court is the preferred method by which to challenge circumstances or actions declared unconstitutional after the defendant's conviction became final. [Citations.] But once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and this avenue is foreclosed. [Citation.] '[C]ollateral consequences of a criminal conviction—even those that can later form the basis of a new criminal conviction—do not of themselves constitute constructive custody.' [Citation.] Thus, a party no longer in constructive custody may not challenge his or her obligation to register as a sex offender by way of a petition for writ of habeas corpus. [Citation]." (Picklesimer, supra, 48 Cal.4th at p. 339.)
"Placement in, or removal of a person from, the state sex offender registry is a ministerial act, contingent only on whether the person has suffered a conviction that lawfully mandates registration [citation] or has been the subject of a court's discretionary order to require registration [citation]. If a party seeking . . . relief [from the registration requirement] can establish he or she no longer should be required to register, the trial court may issue a writ directing the Department of Justice to remove the petitioner from the state sex offender registry." (Picklesimer, supra, 48 Cal.4th at p. 340.)
The label given to a petition is not determinative; rather, the true nature of a petition is based on the facts alleged and remedy sought in that pleading. (Picklesimer, supra, 48 Cal.4th at p. 340.) "A court has authority to treat one type of writ petition as another type when it is procedurally appropriate to do so." (Cox v. Superior Court (2016) 1 Cal.App.5th 855, 858-859, citing Picklesimer, supra, 48 Cal.4th at pp. 340-341 ["Assuming the pleading that has been filed meets or can be amended to meet the prerequisites for a petition for writ of mandate, a court in its discretion may treat a motion or a petition for a different writ as a mislabeled petition for writ of mandate."].)
Here, the record discloses that defendant was in custody at the time he filed his unlabeled petition for relief. However, he was not in custody for the offenses requiring him to register as a sex offender, and any appeal from his commitment to the DJF in 2002 for those offenses has long been final. The trial court ruled on the merits of defendant's petition after defendant was sentenced to prison in this case without determining whether it was treating it as a petition for a writ of mandate or a petition for writ of habeas corpus. On appeal, the People do not contend the trial court lacked jurisdiction to entertain defendant's petition.
In view of the record, we conclude the trial court had jurisdiction to decide the merits of defendant's petition. The court had the discretion to treat the unlabeled petition as a petition for writ of habeas corpus. Moreover, even assuming for the sake of argument that a petition for writ of habeas corpus was not the appropriate vehicle to challenge the registration requirement under the circumstances of this case, defendant's petition sufficiently alleged facts and sought a remedy that would support its consideration as a petition for writ of mandate. (See Picklesimer, supra, 48 Cal.4th at pp. 339-340 [discussing the prerequisites for a petition for writ of mandate].) Accordingly, we will examine the merits of defendant's equal protection claim.
B. Equal Protection
1. Legal Standard
" 'The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion. [Citations.]' [Citation.] We first ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. [Citation.] If groups are similarly situated but treated differently, the state must then provide a rational justification for the disparity. [Citation.] However, a law that interferes with a fundamental constitutional right or involves a suspect classification, such as race or national origin, is subject to strict scrutiny requiring a compelling state interest. [Citation.]" (People v. Lynch (2012) 209 Cal.App.4th 353, 358.)
"Where, as 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." ' [Citations.] '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." ' [Citations.]" (Johnson v. Dept. of Justice (2015) 60 Cal.4th 871, 881.)
2. Analysis
A juvenile found to have violated section 647.6 and committed to DJF in 2002, like one committed to DJF on that offense today, is required to register as a sex offender when released. (Former § 290, subd. (d)(3); § 290.008, subd. (a), (c)(2).)
Section 290, former subdivision (d)(3), which established the sex offender registration requirements for juvenile offenders, was reenacted as section 290.008, effective October 13, 2007. (Stats. 2007, ch. 579, § 16.)
Defendant's equal protection argument arises from changes in the law regarding the circumstances under which a juvenile can be committed to the DJF. He contends that a juvenile today with the same record as he had in 2002 could not be committed to DJF and therefore would not have to register as a sex offender. According to defendant, there is no rational basis for requiring him to register as a sex offender when a similarly situated juvenile today would not be required to do so. We disagree.
We note that defendant did not raise the same equal protection theory in the trial court. Instead, he argued that mandatory sex offender registration for a juvenile (like him) who is adjudicated of violating section 647.6 and committed to the DJF only after committing another offense, but not for a juvenile who is adjudicated of violating section 647.6 and never committed to the DJF, violates the equal protection clauses of the federal and state Constitutions. This same argument was rejected by the court in Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 378. While defendant's equal protection claim is subject to forfeiture, we will exercise our discretion to address the constitutional issue because it presents a pure question of law turning on undisputed facts. (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
When defendant was committed to the DJF in 2002, juvenile courts had broad discretion to commit wards for any offense. (Former Welf. & Inst. Code, § 731, subd. (a).) However, after amendments enacted in 2007, courts could commit wards to DJF only for specified offenses. (Stats. 2007, ch. 175, §§ 19, 22, 37 [amended Welf. & Inst. Code, §§ 731, 733]; In re N.D., supra, 167 Cal.App.4th at pp. 890-892.)
Following the 2007 amendments, a ward could be committed to the DJF only "if the ward ha[d] committed an offense described in" Welfare and Institutions Code section 707, subdivision (b) (i.e., a violent felony). (Former Welf. & Inst. Code, § 731, subd. (a)(4); Stats. 2007, ch. 175, § 19.) A section 647.6 violation was not among those specified offenses. (Welf. & Inst. Code, § 707, subd. (b).) In 2012, however, the law was amended again to add sex offenses listed in section 290.008 to the list of offenses eligible for a DJF commitment. (Welf. & Inst. Code, § 731, subd. (a)(4); Stats. 2012, ch. 7, § 1.) Section 647.6 is included in that list. (§ 290.008, subd. (c)(2).)
Welfare and Institutions Code section 733, which was added as part of the 2007 amendments, adds a further limitation on the juvenile court's discretion: It prohibits a DJF commitment unless "the most recent offense alleged in any petition and admitted or found to be true by the court" is an offense described in subdivision (b) of section 707 of the Welfare and Institutions Code or is a sex offense set forth in paragraph (3) of subdivision (d) of section 290 of the Penal Code. (Former Welf. & Inst. Code, § 733, subd. (c); Stats. 2007, ch. 175, § 22.) In 2008, the law was amended again to prohibit a DJF commitment unless the juvenile's offense is a violent felony offense described in subdivision (b) of section 707 of the Welfare and Institutions Code or a sex offense set forth in subdivision (c) of section 290.008. (Welf. & Inst. Code, § 733, subd. (c); Stats. 2008, ch. 699, § 28.) Thus, under current law, "a DJF commitment must be based on a recent violent offense or sex crime adjudicated in a delinquency petition. It cannot be ordered based on a past offense in the ward's juvenile record if the ward's most recent offense does not qualify." (In re Greg F. (2012) 55 Cal.4th 393, 404.)
At the time defendant was committed to the DJF, his most recent juvenile adjudication was for disturbance of the peace on school grounds. (§ 415.5, subd. (a).) As defendant correctly points out, a juvenile offender today could not be committed to the DJF for that offense. In making his equal protection argument, defendant, in effect, maintains that equal protection principles require that he receive the retroactive benefit of the amendments to the Welfare and Institutions Code. In other words, because his commitment to the DJF predated the amendments, he should be treated like wards adjudicated after the amendments, which would result in the benefit that he not be subject to the lifetime sex offender registration requirement. However, it is well settled that the refusal to apply a statute retroactively does not violate equal protection. (People v. Floyd (2003) 31 Cal.4th 179, 188-189 (Floyd).) " '[T]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' " (Id. at p. 191.)
The statutes are replete with instances where the date of the commission of a crime, of sentencing, or of the passage of a law has the effect of placing individuals on either side of a rigid line. (See, e.g., People v. Rosalinda C. (2014) 224 Cal.App.4th 1, 9-10 [some developmentally disabled persons committed under Welf. & Inst. Code, § 6500 after June 27, 2012, could not be committed for more than six months, but those committed before that date were still subject to one-year commitments]; People v. Mora (2013) 214 Cal.App.4th 1477, 1481 [sentencing changes made by the Realignment Act must be applied prospectively to any person sentenced on or after Oct. 1, 2011]; People v. Verba (2012) 210 Cal.App.4th 991, 994 [defendant who committed a crime on Sept. 30, 2011, will receive a lower level of conduct credits than a defendant who committed a crime on or after Oct. 1, 2011].) Arguments analogous to the argument made by defendant have been rejected. (See Floyd, supra, 31 Cal.4th at pp. 188-191 [passage of Prop. 36]; Baker v. Superior Court (1984) 35 Cal.3d 663, 668-669 [repeal of mentally disordered sex offender law]; Rosalinda C., at pp. 12-15 [changes to § 6500 commitments].)
We conclude that defendant has failed to demonstrate an equal protection violation. Even assuming the similarly situated requirement has been satisfied, there is a rational basis for the disparity in treatment. The 2007 amendments to Welfare and Institutions Code sections 731 and 733 were enacted in order to make " 'necessary statutory changes to implement the Budget Act of 2007.' " (In re Greg F., supra, 55 Cal.4th at p. 409.) The amendments were part of " 'realignment legislation' " that " 'shifted responsibility to the counties for all but the most serious youth offenders.' " (Ibid.) The amendments limit "the offenses for which juvenile courts can commit wards to state authorities." (In re N.D., supra, 167 Cal.App.4th at p. 892; see also In re Greg F., at p. 409 [one aspect of the legislation "was to 'stop the intake [to DJF] of youthful offenders adjudicated for non-violent, non-serious offenses' "].) The realignment was " 'motivated by a desire to reduce the cost and increase the effectiveness of juvenile confinement.' " (In re Greg F., at p. 410.) "In the first budget year, this change was projected to reduce the average daily population in state juvenile institutions by 199 offenders and the average daily population on parole by 190 parolees. [Citation.] 'By transferring responsibility for some wards to county authorities, the state saved about $250,000 per ward per year. [Citation.] At the same time, the legislation compensated the counties for the additional wards for which they would be responsible under a formula based on a rate of $117,000 per ward per year. [Citations.]' [Citation.] 'In addition to these budgetary concerns, this realignment legislation responded to findings that better results could be obtained at the local level for nonviolent juvenile offenders.' " (Id. at p. 409.) Accordingly, because the realignment legislation bears a rational relationship to a legitimate state purpose, there is no equal protection violation.
In his opening brief, defendant alternatively argues that he is entitled to a hearing in the juvenile court to determine whether that court understood it had the discretion to aggregate his term of commitment in 2002 to include his prior adjudications for annoying or molesting a child in violation of section 647.6. However, in his reply brief, defendant clarifies that he does not, as the People contend, seek remand for further proceedings in this regard. As such, we do not address this issue.
DISPOSITION
The trial court's order denying defendant's petition for relief from mandatory sex offender registration is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.