(Santa Clara County Super. Ct. No. 113899) Trial Judge: Honorable David A. Cena.
The opinion of the court was delivered by: Mihara, Acting P. J.
CERTIFIED FOR PUBLICATION
Petitioner Michael S. Taravella sought an order from the trial court terminating his obligation-based on his 1987 conviction for violating Penal Code section 288a, subdivision (b)(2)*fn1 -to register as a sex offender under section 290. The trial court denied his "motion to vacate," and he challenges that decision. Relying on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), Taravella contends the registration requirement violates his right to equal protection by treating two groups of similarly situated offenders differently, mandating registration by one but not the other without any rational basis. We agree. We reverse the trial court's order and remand with directions to enter judgment declaring that Taravella cannot constitutionally be subjected to section 290's mandatory registration requirement based on his conviction for violating section 288a, subdivision (b)(2).
I. Factual and Procedural Background
Taravella pleaded no contest in 1987 to oral copulation by a person over the age of 21 with a person under 16 years of age. (§ 288a, subd. (b)(2)).*fn2 He served a prison sentence and has been obligated, since his release, to comply with the mandatory registration provisions of section 290.*fn3
In 2008, Taravella received a letter from the Department of Justice informing him that Hofsheier "could have an impact" on his obligation to register. Stating that "it is your responsibility to obtain a court order to end your registration duty," the letter suggested that Taravella "gather all relevant documents supporting your application to the court for relief, decide whether to retain legal counsel or, if you are indigent, contact a public defender's office, and obtain the necessary court order instructing the Department of Justice to terminate your registration duty."
Taravella filed a "Motion to Vacate Penal Code Section 290 Mandatory Registration Requirement" in the trial court. In that motion, he argued that "two groups of offenders-both of whom committed voluntary sex crimes against the same group (14- or 15-year-olds)-are being treated differently, based solely on whether they committed voluntary oral copulation or . . . voluntary sexual intercourse." (Italics omitted.) Taravella contended that subjecting the former but not the latter group to mandatory registration lacked a rational basis and thus denied him equal protection.
The parties acknowledged a split in appellate authority interpreting Hofsheier. The district attorney argued that People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel) governed. Taravella contended that the Manchel court's analysis was flawed, that the case was wrongly decided, and that People v. Garcia (2008) 161 Cal.App.4th 475 (Garcia), a case "on all fours" with his, was controlling. The trial court agreed with the district attorney: "I believe Manchel was properly decided, and the motion to vacate the registration requirement is denied." Taravella filed a timely notice of appeal from the trial court's minute order.
A. Procedure for Raising Hofsheier Challenge
We begin with a procedural issue: whether a Hofsheier challenge may be raised, as it was below, by postjudgment motion. As Taravella acknowledges, in Lewis v. Superior Court (2008) 169 Cal.App.4th 70 (Lewis), this court answered that question in the negative and elected to treat the defendant's "motion" as a mandate petition. (Lewis, at pp. 76-77.) As Taravella also points out, however, several courts have addressed postjudgment Hofsheier motions without questioning their procedural propriety. (E.g., People v. Luansing (2009) 176 Cal.App.4th 676, 679 (Luansing); Garcia, supra, 161 Cal.App.4th at pp. 479-480.) With the issue unsettled, he asks that we treat the instant appeal as a mandate petition, as this court did in Lewis, if we remain of the opinion that a motion will not lie.*fn4
Because the judgment in this case became final over 20 years ago, we remain of the opinion that a motion will not lie. (People v. Ainsworth (1990) 217 Cal.App.3d 247, 251-252 [a motion is ancillary to an ongoing action or proceeding; "[u]pon issuance of the remittitur, the trial court's jurisdiction with regard to the `remitted action' is limited solely to the making of orders necessary to carry the judgment into effect"].) Instead of treating Taravella's "motion to vacate" as a petition for a writ of mandate in the trial court or in this court, we view his motion as more akin to an action seeking a declaratory judgment that, because the registration requirement violates his constitutional right to equal protection, he cannot be required to comply with it. (Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 678, fn. 2 (Abbott) [action for declaratory relief is an available vehicle for testing validity of criminal registration ordinance], criticized on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6.) We requested supplemental briefing on this procedural issue as follows: "Question #1: Assuming that defendant's motion was not the appropriate procedural vehicle for raising the Hofsheier issue in the superior court, does the Attorney General concede that we may reach the merits of defendant's appeal and direct the trial court to grant defendant the appropriate relief, such as a declaratory judgment, if defendant established his entitlement to such relief in the proceedings on his motion?" The Attorney General has conceded "that this Court may reach the merits of [defendant's] appeal and may direct the trial court to grant [defendant] the appropriate relief, if this Court concludes that he has established his entitlement to such relief." In light of the Attorney General's concession, we will treat defendant's "motion" in the trial court as an action for declaratory relief against the Department of Justice.*fn5 "Declaratory relief is available where an actual controversy exists . . . and is commonly used to resolve constitutional issues arising from the application of statutes . . . ." (Minor, supra, 219 Cal.App.3d at p. 1547 [where forfeiture notice constitutionally defective, action seeking return of bail funds construed as action for declaratory relief].) A complaint that alleges "a genuine controversy involving the construction of particular legislation as to which it seeks a judicial determination" sufficiently states a claim for declaratory relief. (Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 905 [bookseller and prospective reader properly presented issue of obscenity legislation's application to sale of book].) Here, Taravella's "motion" showed the existence of an actual controversy involving the constitutional applicability, to him, of section 290's mandatory registration requirement based on his conviction for violating section 288a, subdivision (b)(2). The People vigorously disputed that the requirement violated Taravella's constitutional rights in the trial court, and on appeal (unlike in Lewis), the Department of Justice did not concede the constitutional issue. Taravella's "motion" also established by sworn declaration that "[o]ther than the conviction in this case (no. 133899) I have no other convictions which require me to register pursuant to . . . section 290 et seq.," and it asked the trial court to "strike or vacate" the registration requirement if the court determined that continuing to subject him to registration violated his right to equal protection. Taravella's "motion" thus met the requirements of the declaratory judgment statute. (Code Civ. Proc., § 1060.) That he styled his request for relief as a motion rather than as a complaint for a declaratory judgment does not preclude us from granting the relief he seeks. (See Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511 ["The label given a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading"].) We proceed to the merits of Taravella's appeal.
Taravella contends that subjecting him to section 290's mandatory registration requirement violates his right to equal protection. We agree. The federal and state Constitutions guarantee all persons equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) " ` " `The concept . . . compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.' " ' [Citation.] It is often stated that `[t]he 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.' [Citation.] The use of the term `similarly situated' in this context refers only to the fact that ` "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." . . .' [Citation.] There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The `similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required ...