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Filed 6/29/22 Stuckey v. Dept. of Justice CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

GARY WAYNE STUCKEY,

Plaintiff and Appellant,

v.

DEPARTMENT OF JUSTICE,

Defendant and Respondent;

THE PEOPLE,

Real Party in Interest and Respondent.

C094411

(Super. Ct. Nos. STK-CR-FE1993-0005670, SC055590A)

California law has long required persons convicted of certain specified sex crimes 

against a child, including violations of Penal Code section 288,1 to register as a sex 

offender so long as they live, attend school, or work in California. (People v. Mosley

(2015) 60 Cal.4th 1044, 1048; In re Alva (2004) 33 Cal.4th 254, 264; § 290, subds. (b), 

1 Undesignated statutory references are to the Penal Code.
2

(c).) In 1993, Gary Stuckey pleaded no contest to committing a lewd and lascivious act 

upon a 15-year-old child when he was at least 10 years older than the child in violation of 

former section 288, subdivision (c) (now (c)(1)).2 As a consequence of his conviction, 

Stuckey was ordered to register as a sex offender for life. (See former § 290.) 

Commencing January 1, 2021, Senate Bill No. 384 (2017-2018 Reg. Sess.) 

(Senate Bill No. 384) restructured the sex offender registration requirement, establishing 

three tiers of registration for sex offenders, primarily based on the offense of conviction, 

for periods of at least 10 years (tier one), at least 20 years (tier two), and life (tier three). 

(Stats. 2017, ch. 541, § 2.5; see § 290, subd. (d).) Effective July 1, 2021, Senate Bill 

No. 384 established procedures for termination from the sex offender registry if certain 

criteria are met, including completion of the mandated minimum registration period. 

These procedures, however, are limited to tier one and tier two sex offenders, with one 

exception that is not applicable here.3 (Stats. 2017, ch. 541, § 2.5; see § 290.5, subds. 

(a)-(c).) Under current law, Stuckey is a tier three sex offender, subject to the lifetime 

registration requirement with no possibility of termination from the sex offender registry. 

(§ 290, subd. (d)(3)(C)(ix); see § 290.5, subds. (a), (b).) 

Stuckey appeals from the denial of his petition for writ of mandate, which 

challenged the tiered sex offender registration law as violating principles of equal 

2 The provision that is now subdivision (c)(1) of section 288 was originally enacted as 

subdivision (c) effective January 1, 1989; it became subdivision (c)(1) by a later 

amendment effective January 1, 1996. (People v. Paz (2000) 80 Cal.App.4th 293, 296, 

fn. 8 (Paz).) In this opinion, we refer to Stuckey’s offense as a conviction under section 

288, subdivision (c)(1).

3 If certain criteria are met, section 290.5, subdivision (b)(3) permits a person required to 

register as a tier three sex offender based solely on their risk level to petition the trial 

court for termination from the sex offender registry after 20 years. Stuckey concedes that 

this provision does not apply to him because he qualifies as a tier three sex offender 

based on his offense of conviction.
3

protection. He argues that persons convicted of violating section 288, subdivision (c)(1) 

(a tier three sex offense) are similarly situated with persons convicted of committing a 

lewd or lascivious act upon a child under the age of 14 years in violation of section 288, 

subdivision (a) (a tier two sex offense), and that no rational basis exists for treating these 

groups of sex offenders differently with respect to the registration requirement. 

We reject Stuckey’s equal protection claim and affirm the order denying the 

petition for writ of mandate. 

BACKGROUND

In 1993, a six-count information was filed against Stuckey, charging him with 

three counts of committing a lewd and lascivious act upon a 14- or 15-year-old child in 

violation of section 288, subdivision (c) (now (c)(1), as noted ante), and three counts of 

unlawful sexual intercourse with a person under the age of 18 years in violation of 

section 261.5. The conduct giving rise to these charges occurred in early 1993 and 

involved the same victim, a 15-year-old girl. Stuckey, who was 26 years old at the time 

of the alleged offenses, pleaded no contest to a single count of violating section 288, 

subdivision (c)(1) and the remaining counts were dismissed. Stuckey’s conviction 

resulted in a one-year sentence and mandatory lifetime sex offender registration under 

former section 290.

After Senate Bill No. 384 went into effect in January 2021, Stuckey filed a petition 

for writ of mandate, challenging the validity of the tiered sex offender registration law on 

equal protection grounds. In June 2021, the trial court denied Stuckey’s petition. 

Stuckey timely appealed. The case was fully briefed on February 22, 2022, and assigned 

to this panel shortly thereafter. Defendant requested argument and the case was heard on 

June 22, 2022.

DISCUSSION

Stuckey contends reversal is required because the tiered sex offender registration 

law established by Senate Bill No. 384 violates his equal protection rights under both the 
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federal and state Constitutions. He argues that persons convicted of the sex offenses 

proscribed under subdivisions (a) and (c)(1) of section 288 are similarly situated for 

purposes of the new law but treated in an unequal manner, and that no rational basis 

exists for the Legislature’s disparate treatment, that is, there is no rational basis to support 

the mandatory lifetime registration requirement for a section 288, subdivision (c)(1) sex 

offender, while permitting a section 288, subdivision (a) sex offender to seek termination 

from the sex offender registry after the mandated minimum registration period (which, as 

we explain post, is generally 20 years). We disagree.

I

Equal Protection Principles and Standard of Review

Both the Fourteenth Amendment to the United States Constitution and article I, 

section 7 of the California Constitution guarantee equal protection of the laws. “ ‘The 

California equal protection clause offers substantially similar protection to the federal 

equal protection clause’ ” (People v. Jackson (2021) 61 Cal.App.5th 189, 195), and our 

Supreme Court “has not distinguished the state and federal guarantees of equal protection 

for claims arising from allegedly unequal consequences associated with different types of 

criminal offenses” (People v. Chatman (2018) 4 Cal.5th 277, 287 (Chatman)).4 

“ ‘ “ ‘The equality guaranteed by the equal protection clauses of the federal and 

state Constitutions is equality under the same conditions, and among persons similarly 

situated. The Legislature may make reasonable classifications of persons and other 

activities, provided the classifications are based upon some legitimate object to be 

accomplished.’ ” ’ ” (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073.) “ ‘The 

concept of equal protection recognizes that persons who are similarly situated with 

respect to a law’s legitimate purposes must be treated equally.’ ” (People v. Valencia

4 Stuckey does not differentiate between the state and federal Constitutions or suggest 

the equal protection analysis under either should differ. Accordingly, we address his 

state and federal claims together. (In re C.B. (2018) 6 Cal.5th 118, 133, fn. 11.)
5

(2017) 3 Cal.5th 347, 376.) At its core, “the requirement of equal protection ensures that 

the government does not treat a group of people unequally without some justification.” 

(Chatman, supra, 4 Cal.5th at p. 288.) 

“ ‘ “The first prerequisite to a meritorious claim under the equal protection clause 

is a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether 

persons are similarly situated for all purposes, but “whether they are similarly situated for 

purposes of the law challenged.” ’ ” (People v. McKee (2010) 47 Cal.4th 1172, 1202.) 

“In other words, we ask at the threshold whether two classes that are different in some 

respects are sufficiently similar with respect to the laws in question to require the 

government to justify its differential treatment of these classes under those laws.” 

(Ibid.)

If the similarly situated prerequisite is satisfied and, as here, the “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.” ’ ” (Johnson v. Department of 

Justice (2015) 60 Cal.4th 871, 881 (Johnson).) “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.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74-75.) The 

party challenging a law on equal protection grounds must negate “ ‘ “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 of the law.” ’ ” (Johnson, at p. 881.) 
6

“ ‘[W]hen conducting rational basis review, we must accept any gross 

generalizations and rough accommodations that the Legislature seems to have made.’ 

[Citation.] ‘A classification is not arbitrary or irrational simply because there is an 

“imperfect fit between means and ends” ’ [citations], or ‘because it may be “to some 

extent both underinclusive and overinclusive” ’ [citations].” (Johnson, supra, 60 Cal.4th 

at p. 887.) “At bottom, the Legislature is afforded considerable latitude in defining and 

setting the consequences of criminal offenses.” (Ibid.)

We review an equal protection claim de novo. (California Grocers Assn. v. City 

of Los Angeles (2011) 52 Cal.4th 177, 208.)

II

Section 288, the Sex Offender Registration Act, and Senate Bill No. 384

Section 288 criminalizes the commission of lewd or lascivious acts against 

children and dependent persons. (See § 288, subds. (a)-(c).) As relevant here, 

subdivision (a) of section 288 provides: “[A] person who willfully and lewdly commits 

any lewd or lascivious act . . . upon . . . a child who is under the age of 14 years, with the 

intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that 

person or the child, is guilty of a felony and shall be punished by imprisonment in the 

state prison for three, six, or eight years.” 

Subdivision (c)(1) of section 288 provides, in pertinent part: “A person who 

commits an act described in subdivision (a) with the intent described in that subdivision, 

and the victim is a child of 14 or 15 years, and that person is at least 10 years older than 

the child, is guilty of a public offense and shall be punished 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.” As one appellate court has explained, “The inclusion of the decade age 

difference in th[is] subdivision reflects a recognition that a ‘sexually naïve’ [citation] 

child of 14 or 15 could fall victim to a more experienced adult, a vice the Legislature was 

attuned to and took action to prevent.” (Paz, supra, 80 Cal.App.4th at pp. 296-297 
7

[explaining that the legislative history of § 288, subd. (c) (now (c)(1)) discloses a 

legislative desire to fill a gap in the law and protect early teens from sexual exploitation 

by predatory older adults to the same extent children under 14 are protected by subd. (a) 

of § 288].)

As noted ante, California law has long required persons convicted of certain 

specified sex crimes against a child, including violations of section 288, to register as a 

sex offender so long as they live, attend school, or work in California. The registration 

requirement is set forth in section 290, which is a key provision of California’s Sex 

Offender Registration Act (§ 290 et seq.) that applies automatically to the offenses 

enumerated therein, and, until recently, imposed a mandatory lifelong obligation to 

register for all such offenses. (See Johnson, supra, 60 Cal.4th at p. 876-877; Wright v. 

Superior Court (1997) 15 Cal.4th 521, 527.) As our Supreme Court has explained, 

section 290 was enacted to “ ‘promote the “ ‘state interest in controlling crime and 

preventing recidivism in sex offenders’ ” ’ [citation] and serves ‘an important and vital 

public purpose by compelling registration of many serious and violent sex offenders who 

require continued public surveillance’ [citations]. Children, in particular, ‘are a class of 

victims who require paramount protection’ from sex offenders [citation], and mandating 

lifetime registration of those who prey on underage victims serves ‘to notify members of 

the public of the existence and location of sex offenders so they can take protective 

measures’ [citation].” (Johnson, at p. 877; see In re Alva, supra, 33 Cal.4th at p. 264 

[“ ‘ “The purpose of section 290 is to assure that persons convicted of the crimes 

enumerated therein shall be readily available for police surveillance at all times because 

the Legislature deemed them likely to commit similar offenses in the future.” ’ ”].)

Commencing January 1, 2021, Senate Bill No. 384 restructured the sex offender 

registration requirement, establishing three tiers of registration for sex offenders, 

primarily based on the offense of conviction, for periods of at least 10 years (tier one), at

least 20 years (tier two), and life (tier three). (Stats. 2017, ch. 541, § 2.5; see § 290, subd. 
8

(d).) Under current law, a person (like Stuckey) convicted of violating section 288, 

subdivision (c)(1) is a tier three sex offender, subject to the lifetime registration 

requirement with no possibility of termination from the sex offender registry. (§ 290, 

subds. (c), (d)(3)(C)(ix).) By contrast, a person convicted of violating section 288, 

subdivision (a) is a tier two sex offender, who is generally permitted to petition for 

termination from the sex offender registry after a minimum of 20 years.5 (§ 290, subds. 

(c), (d)(2)(A) [describing a tier two sex offender as a person convicted of an offense 

described in subdivision (c) of section 290 that is also a violent or serious felony 

described in subdivision (c) of section 667.5 or subdivision (c) of section 1192.7]; 

§ 290.5, subd. (a)(1); see § 667.5, subd. (c)(6) [describing a §, subd. (a) offense as a 

violent felony]; § 1192.7, subd. (c)(6) [describing a § 288, subd. (a) offense as a serious 

felony].)

Prior to the enactment of Senate Bill No. 384, California treated all sex offenders 

the same, “regardless of the person’s risk of reoffense,” which resulted in the registry 

becoming so “bloated” that law enforcement could not use it effectively, since there was 

no way of differentiating between higher and lower risk sex offenders. (Sen. Rules Com., 

Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. 

Sess.) as amended Sept. 8, 2017, p. 12.) The purpose of Senate Bill No. 384 was to 

establish a tiered registration system that improves public safety by focusing resources on 

those offenders who pose the greatest risk based on the severity of the offense and the 

likelihood of recidivism, while allowing less serious or lower risk sex offenders to seek 

termination from the sex offender registry after 10 or 20 years. (Id. at pp. 12-13.)

5 Although not relevant here, the tiered sex offender registration law permits a tier two 

sex offender to petition for termination from the sex offender registry after 10 years if 

certain specified criteria are satisfied. (§ 290.5, subd. (b)(1), (2).)
9

III

Analysis

As we next explain, we see no equal protection violation. Stuckey has not shown 

that persons convicted under subdivisions (a) and (c)(1) of section 288 are similarly 

situated for purposes of the tiered sex offender registration law. Nor has Stuckey shown 

that there is no rational relationship between the disparity of treatment at issue here and 

some legitimate governmental purpose. 

Generally, persons who commit different crimes are not similarly situated. 

(People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, overruled on another ground by 

Johnson, supra, 60 Cal.4th at pp. 874-875.) Stuckey recognizes the general rule but 

insists that it does not apply here because “both subdivisions (a) and (c)(1) of section 288 

are directed at protecting all children from sexual exploitation, both offenses proscribe 

the same conduct and [require] the same specific intent, and all section 288, subdivision 

(c)(1), offenders have also violated subdivision (a).”6 We are unpersuaded. 

In arguing that the similarly situated prerequisite is satisfied, Stuckey 

acknowledges that a violation of section 288, subdivision (c)(1) requires that the victim 

be 14 or 15 years old and the perpetrator be at least 10 years older than the victim. Thus, 

only adults 24 years of age or older may be convicted of this offense. By contrast, the 

only age requirement under section 288, subdivision (a) is that the victim of a lewd or 

lascivious act be under 14 years of age; the perpetrator can be any age.7 As such, minors 

6 Stuckey erroneously asserts that all persons who violate section 288, subdivision (c)(1) 

also violate section 288, subdivision (a). As we have explained, in order to be convicted 

of violating subdivision (a), the minor victim must be under the age of 14 years, while a 

minor victim must be 14 or 15 years old for a person to be convicted of violating 

subdivision (c)(1). (§ 288, subds. (a), (c)(1).) In short, there is no overlap.

7 Indeed, section 288, subdivision (a) applies even if the perpetrator is a minor and 

younger than the victim. (See, e.g., In re Jerry M. (1997) 59 Cal.App.4th 289, 295-297 

[juvenile delinquent 11 years old and victim 12 years old].)
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and adult teenagers (i.e., persons 18 and 19 years old) can violate this provision.8 

Accordingly, since a person convicted under section 288, subdivision (c)(1) must 

be an adult at least 10 years older than a 14- or 15-year-old victim, a person convicted of 

that crime is not similarly situated to a person convicted under section 288, subdivision 

(a) for purposes of the tiered registration law. Our conclusion is consistent with other 

appellate court decisions that have rejected equal protection challenges involving laws 

that do not have a similar age gap requirement as section 288, subdivision (c)(1). (See 

People v. Cavallaro (2009) 178 Cal.App.4th 103, 114 [concluding that persons convicted 

under sections 288, subdivision (c)(1) and 261.5, subdivision (d) (unlawful, nonforcible

sexual intercourse with a child under 16 years of age, where the offender is 21 years of 

age or older), are not similarly situated for purposes of mandatory sex offender 

registration (as opposed to discretionary registration)]; People v. Anderson (2008) 168 

Cal.App.4th 135, 142 [rejecting argument that, for purposes of mandatory sex offender 

registration, a person convicted under § 288, subd. (c)(1) is similarly situated with 

persons convicted of voluntary oral copulation of a 16- or 17-year-old victim in violation 

of former § 288a, subd. (b)(1) (now § 287, subd. (b)(1))].) Since Stuckey has not shown 

that the Legislature adopted a classification that affects two or more similarly situated 

groups in an unequal manner, his equal protection claim fails “at the threshold.” (People 

v. McKee, supra, 47 Cal.4th at p. 1202; People v. Buffington (1999) 74 Cal.App.4th 1149, 

1155.) 

In any event, even were we to agree with Stuckey that the similarly situated 

prerequisite is satisfied, Stuckey has failed to show that there is no rational relationship 

between the challenged statutory disparity and some legitimate governmental purpose. 

The relevant inquiry in this case is whether a legitimate reason exists that permits the 

8 A 16- or 17-year-old child may be tried as an adult for a violation of section 288, 

subdivision (a). (See Welf. & Inst. Code, § 707, subd. (a)(1).) 
11

Legislature to require lifetime registration for persons convicted under section 288, 

subdivision (c)(1), while allowing persons convicted under section 288, subdivision (a) to 

petition for termination from the sex offender registry after the expiration of the 

mandated minimum registration period (typically 20 years). Such a reason exists here. 

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. (See People v. Cavallaro, supra, 178 Cal.App.4th at p. 114 [explaining that the 

Legislature could have properly concluded it was necessary to require lifetime sex 

offender registration for a person convicted under section 288, subdivision (c)(1) because 

of the potential for predatory behavior resulting from the significant age difference 

between the adult and the minor victim].) The legislative concern giving rise to the 

enactment of subdivision (c)(1) of section 288--sexual exploitation of young, vulnerable 

children by significantly older predatory adults (Paz, supra, 80 Cal.App.4th at pp. 296-

297)--is not always present when a person violates subdivision (a) of the statute, since a 

violation of that provision can involve consensual sexual relations between minors or 

teenagers in a romantic relationship. (See, e.g., People v. Tuck (2012) 204 Cal.App.4th 

724, 727-728 [19 year old who engaged in consensual sexual relations with girlfriend “a 

few months shy of 14” convicted under § 288, subd. (a)].) The Legislature, therefore, 

could have rationally concluded that some violations of section 288, subdivision (a) are 

not as egregious and the offender is not as dangerous to society (i.e., likely to recidivate) 

as sexual predators convicted under section 288, subdivision (c)(1). It is reasonably 

conceivable the Legislature rationally determined that lifetime sex offender registration 

may not be warranted for all persons convicted under section 288, subdivision (a) due to 

the nature of the offense, including the relationship and age difference between the 

perpetrator and victim. In other words, the Legislature could have sensibly decided that 

there may be instances where a violation of section 288, subdivision (a) is less serious 
12

and the offender is a lower risk sex offender, such that persons convicted of this crime 

should be given the opportunity to seek termination from the sex offender registry after 

the mandated minimum registration period. 

We acknowledge several specific points from the briefing that we also explored at 

oral argument regarding apparent incongruities in the Legislature’s treatment of the 

crimes at issue here. First, we do not disagree that because certain young adults (24 and 

25 year olds) may be convicted of violating section 288, subdivision (c)(1), there is some 

tension in the Legislature’s decision to exclude section 288, subdivision (c)(1) offenders 

from seeking relief from the sex offender registration requirement, given recent changes 

in the law driven by the differences in moral culpability and brain development of 

offenders 25 years of age and younger versus older offenders. However, this apparent 

inconsistency and resulting tension is a matter for the Legislature and is not dispositive 

here. Similarly, although those convicted of offenses under section 288, subdivision (a) 

are subject to harsher penalties (three, six, or eight years of imprisonment; convictions 

classified as a “super strike” (§ 667, subd. (e)(2)(C)(iv)(III)) than those convicted under 

section 288, subdivision (c)(1) (one, two, or three years imprisonment; offenses may be 

prosecuted as a misdemeanor or a felony), this observation does not necessarily signal the 

lack of a plausible basis for the statutory disparity challenged here. The Legislature 

reasonably could have determined that, even if section 288, subdivision (a) offenses are 

punished more severely than subdivision (c)(1) offenses based on the age of the victim, 

subdivision (a) offenses could be committed by younger offenders with more potential to 

rehabilitate than their subdivision (c)(1) counterparts, who are necessarily older and more 

predatory, even if their conduct occurs with an older victim. In short, because here a 
13

plausible basis does exist for the challenged statutory disparity, Stuckey’s equal 

protection claim fails.9

DISPOSITION

The order denying the petition for writ of mandate is affirmed.

 /s/

Duarte, J.

We concur:

 /s/

Robie, Acting P. J.

 /s/

Hoch, J.

9 Stuckey argues in passing that the “considerably older” adult rationale does not justify 

the disparate treatment at issue here because a person convicted of nonforcible oral 

copulation or sodomy with a minor under 14 years of age who is more than 10 years 

younger than he or she (§§ 286, subd. (c)(1), 287, subd. (c)(1)) is not a tier three sex 

offender under the tiered registration law. Stuckey has forfeited this argument by failing 

to raise it in the trial court and by failing to adequately develop it on appeal. (Allen v. 

City of Sacramento (2015) 234 Cal.App.4th 41, 52 [an appellate court is not required to 

examine undeveloped claims]; Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 [“Points 

not raised in the trial court may not be raised for the first time on appeal”].)