Filed 9/29/26 Park v. California Dept. of Justice CA1/4
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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
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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.
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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
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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
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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
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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.”].)
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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.”
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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
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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.
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