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Doe v. California Department of Justice

May 7, 2009


APPEAL from a judgment of the Superior Court of San Diego County, Steven R. Denton, Judge. Affirmed. (Super. Ct. No. 37-2007-000736921-CU-WM-CTL).

The opinion of the court was delivered by: Mcconnell, P. J.


Under California's version of "Megan's Law," 2004 legislation allowed persons convicted of specified sex crimes to, on successful completion of probation, apply to have their names, pictures and other identifying information excluded from an Internet Web site maintained by the California Department of Justice (the Department).*fn1 As amended in 2005, however, the exclusion is available only to a parent, stepparent, sibling or grandparent of the victim, when the crime did not involve oral copulation or any penetration. In 2006, the Legislature expressly made the amendment retroactive.

G.G. Doe and B.M. Doe, convicted child molesters, appeal a judgment in which the court denied their petition for an order prohibiting the Department from posting their information on the Megan's Law Web site. They contend the Department is equitably estopped from doing so because they detrimentally relied on exclusions they received in the summer of 2005 before the law changed. Further, they contend the 2006 amendment making the new law retroactive constitutes an unconstitutional ex post facto law, and violates their constitutional rights in numerous other respects. We affirm the judgment.


In the early 1980's G.G. was convicted of committing a lewd and/or lascivious act on a child under the age of 14, a felony (Pen. Code, § 288, subd. (a))*fn3, and B.M. was convicted of oral copulation with a child under the age of 16, also a felony (§ 288a, subd. (b)(2)). Their victims were family members. They were granted probation and successfully completed it, but they must nonetheless register under the Sex Offender Registration Act for life. (§ 290, subds. (a), (b).) In 1997 B.M.'s conviction was dismissed under section 1203.4, but his registration duty continues.

California's Megan's Law provides for the collection and public disclosure of information regarding sex offenders required to register under section 290. (Wright v. Superior Court (1997) 15 Cal.4th 521, 529; Fredenburg v. City of Fremont (2004) 119 Cal.App.4th 408, 413.) In 2004 the Legislature enacted section 290.46, which requires the Department to maintain an Internet Web site that includes information on persons convicted of specified sex offenses, such as the offender's name, address, aliases, photograph, physical description, date of birth, criminal history and other information the Department deems relevant. (§§ 290.46, subds. (a)(1), (b)(1) & (2)(G) & (H); Stats. 2004, ch. 745, § 1.)

Section 290.46 originally allowed offenders to apply to the Department for exclusion from the Megan's Law Web site on proof they successfully completed probation granted under section 1203.066. (§ 290.46, former subd. (e)(2)(C), enacted by Stats. 2004, ch. 745, § 1.) At the time, section 1203.066 allowed probation for certain serious sex offenses when "the defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household." (§ 1203.066, former subd. (c)(1).)*fn4 The exclusion applied to "a very narrow category of non-violent, intra-familial offenders convicted of child molestation who, unlike all other sex offenders, are eligible for probation." The Senate Committee explained that sometimes such cases can be prosecuted only because "family member witnesses are willing to cooperate with prosecutors because of the availability of probation." (Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 1323 (2005-2006 Reg. Sess.), as amended April 13, 2005, for hearing on June 28, 2005, p. N, quoting Sen. Com. on Pub. Safety, Analysis of Assem. Bill No. 488 (2003-2004 Reg. Sess.), as amended June 14, 2004, for hearing on June 22, 2004, p. T.)

G.G. and B.M. qualified for exclusions. They applied for exclusions and the Department granted them in June (B.M.) and July (G.G.) 2005.

Effective October 7, 2005, however, the Legislature amended section 290.46 to limit the availability of the exclusion. It now applies only when an offender proves he "was the victim's parent, stepparent, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object." (§ 290.46, subd. (e)(2)(C)(i), as amended by Stats. 2005, ch. 722, § 7.) The offender must also prove he successfully completed probation, but the probation need not have been granted under section 1203.066. (Ibid.)

Effective September 20, 2006, the Legislature expressly made the 2005 amendment retroactive. (§ 290.46, subd. (e)(3), added by Stats. 2006, ch. 337, § 19.)

B.M. is now ineligible for the exclusion because of the seriousness of his crime, and G.G. is ineligible because he is the victim's uncle rather than a parent, stepparent, sibling or grandparent.*fn5

In July 2007 the Department notified G.G. and B.M. of their ineligibility. They asked the Department not to rescind their exclusions, but it refused absent court intervention. In August 2007 they filed a petition against the Department for extraordinary writ relief, arguing it is equitably estopped from posting their information on the Megan's Law Web site because they detrimentally relied on the exclusions they obtained in mid-2005 under the old law. Further, they argued the 2006 retroactivity measure is constitutionally unsound for a variety of reasons: it takes away fundamental vested rights, the previous exclusions, without due process of law; it constitutes a forbidden ex post facto law; it violates their liberty interests in privacy and in their reputations; and it violates G.G.'s right to equal protection as it treats uncles of victims differently than parents, stepparents, siblings and grandparents of victims. B.M. also contends the posting of his information on the Web site violates section 1203.4, under which his conviction was dismissed in 1997.

The court denied the petition, and granted G.G. and B.M.'s unopposed request to stay enforcement of the judgment pending this appeal.


I. Equitable Estoppel

" 'Generally speaking, four elements must be present . . . : (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.' " (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 244.) "The doctrine of estoppel is available against the government ' "where justice and right require it." ' [Citation.] It has been applied when the government has misled a claimant [citations], but will not be applied if to do so would nullify a ' "strong rule of policy adopted for the benefit of the public." [Citation.]' " (Ibid.)

G.G. and B.M. contend the Department is equitably estopped from rescinding their exclusions from disclosure on the Megan's Law Web site. They complain that in mid-2005 when they were granted the disclosure exclusions "they were never notified nor were they aware . . . that the Government could rescind their exclusions years later." They assert that "[i]n reliance on the exclusion, each managed his life with the assurance and promise that they would not be publicly exposed as sex offenders on the internet. . . . To pull the rug out from under them now, after they have relied upon the assurance that they would not be placed on the internet, is unfair and inequitable." They claim they "relied upon the exclusion by going about their lives fully believing that their prior misconduct, occurring over twenty years ago, would not be exposed publicly on the internet. [They] maintained employment and ran their households under the promise and belief that their lives would not be turned upside down by the public humiliation and exposure of being placed on the Megan's Law [Web site]."

G.G. and B.M., however, adduced no evidence the Department ever assured them their exclusions were ironclad and the Megan's Law disclosure requirements were never subject to amendment. Indeed, the Department could not have done so as it does not control the Legislature. Further, G.G. and B.M. adduced no evidence of detrimental reliance on the exclusions. Their convictions were in the early 1980's. Section 290.46 was not enacted until 2004 and they received their exclusions in June 2005 (B.M.) and July 2005 (G.G.). Thus, they certainly did not rely on the exclusions in conducting their defenses or successfully completing their three-year (B.M.) and five-year (G.G.) probation periods. (See People v. Treadway (2008) 163 Cal.App.4th 689, 698.) Also, G.G. and B.M. submitted no evidence of how they would have conducted their lives differently after they obtained exclusions in mid-2005 had they known the Legislature could rescind them. Would they not have continued to ...

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