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Name: People v. Tuck
Case #: A131624
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 03/27/2012

Mandatory sex registration for a defendant convicted of violating Penal Code section 288, subdivision (a) does not violate equal protection. In 1999 when Tuck was 19 years old, he pled no contest to violating section 288, subdivision (a) for having a sexual relationship with his 13-year-old girlfriend. He filed a petition for writ of mandate in the superior court seeking to be relieved of his lifetime registration requirement. The trial court found it had no authority to grant the writ, holding the analysis in People v. Hofsheier (2006) 37 Cal.4th 1185, did not support the conclusion that the mandatory sex registration requirement for violating (now) section 290.006, denied the offender equal protection. Affirmed. The trial court had no discretion under Penal Code section 1385 to relieve Tuck of his registration requirement, as registration is not an action, criminal count, factual allegation or punishment. Nor does the mandatory registration violate equal protection. A person who violates section 288, subdivision (a) or subdivision (c)(1) necessarily impacts a victim who is under 14 years of age or 14 or 15, if the defendant is 10 years older, and is therefore not similarly situated with persons convicted of sex offenses under other statutes that do not necessarily require the victim to be so young. The fact that victims of other offenses might be under 14 years is immaterial as this may be a result of prosecutorial charging decisions, which, absent a showing of discriminatory prosecution, does not deprive other defendants who do not receive such leniency, of equal protection. Section 288, subdivision (a) “sweeps with an exceptionally broad brush” and the court questioned the wisdom of including such a wide array of conduct within a single statute. Nonetheless, by targeting victims under the age of 14, the statute does not treat similarly situated offenders differently and the distinction drawn by the statute “bears a rational relationship to [an] appropriate legislative purpose.”

A defendant’s ineligibility for a certificate of rehabilitation due to a section 288, subdivision (a) conviction, may violate principals of equal protection. Penal Code section 290.5 provides that a defendant, upon receiving a certificate of rehabilitation, may be relieved of a registration requirement. Sections 290.5 and 4852.01 enumerate certain sex offense convictions that render a defendant ineligible for the certificate. This exclusion may run afoul of equal protection principals “in light of the possible eligibility for such relief of other similarly situated sex offenders.” However, in this case, Tuck has not yet applied for a certificate of rehabilitation and the trial court has therefore not considered whether the principles set forth in Hofsheier require that relief be accorded him.