California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2013-00077670, Ronald L. Styn, Judge.
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Garcia & Birge and Marian H. Birge for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Colton, Theodore M. Cropley, Seth M. Friedman, and Kimberly Donohue, Deputy Attorneys General, for Defendant and Respondent.
Terrence Lee Yohner filed this action in an attempt to prevent the California Department of Justice (the Department) from listing his name and information concerning a sexual offense that he committed, on its Megan's Law Internet Web site. Yohner suffered a conviction for committing a lewd act on his stepgranddaughter in violation of Penal Code section 288, subdivision (a). Section 290.46 mandates that the Department post information concerning sex offenders and their crimes on an Internet Web site. Section 290.46, subdivision (e)(2)(D)(i) provides that, when specified criteria are met, a "victim's parent, stepparent, sibling, or grandparent" may apply for and receive an exclusion from the Web site. Yohner filed an application for exclusion from the Department's Web site. The Department denied his application, reasoning that because Yohner was the victim's stepgrandparent, rather than her grandparent, he was not eligible for the exclusion. Yohner then filed a petition for writ of mandate in the trial court in which he requested that the trial court direct the Department to exclude him from the Web site. The trial court denied the petition.
On appeal, Yohner claims that the trial court erred in interpreting the exclusion provided in section 290.46, subdivision (e)(2)(D)(i) as not applying to stepgrandparents. Yohner also contends that section 290.46, subdivision (e)(2)(D)(i) is unconstitutional if interpreted not to apply to stepgrandparents. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2009, Yohner was convicted of one count of committing a lewd act upon a child under the age of 14, in violation of section 288, subdivision (a). The victim was the daughter of Yohner's stepdaughter. At sentencing, the trial court suspended imposition of sentence and placed Yohner on four years of
formal probation, subject to various conditions, including that he serve 365 days in the custody of the sheriff.
In 2013, Yohner successfully completed probation and applied for an exclusion from the Department's Web site. The Department denied the application, reasoning in part: "According to page 2 of the 'Probation Officer's Report' that you submitted, the defendant is the victim's step-grandparent. Specifically, page 2 of the Probation Officer's Report states, 'Between June 2006 and June 2007 the 61-year-old defendant repeatedly molested his then-8-year-old step granddaughter during overnight visits in his home.' Because Penal Code section 290.46, subdivision (e)(2)(D)(i), states that he is eligible for exclusion only if he was the victim's 'parent, stepparent, sibling, or grandparent, ' and does not include step-grandparent... the application has been denied."
Yohner filed a petition for writ of mandate requesting that the trial court direct the Department to exclude him from the Web site. In a memorandum in support of his petition, Yohner contended that the word "grandparent" in section 290.46, subdivision (e)(2)(D)(i) should be interpreted to include stepgrandparents. In support of this argument, Yohner contended that "[t]he explicit inclusion of stepparents [in section 290.46, subdivision (e)(2)(D)(i)] clearly demonstrates that such closely related individuals need not be biologically related to the victim to be able to apply for exclusion." Yohner further contended, "[S]tep-grandparents are implicit in the class of grandparents eligible for exclusion, despite the fact that they are not expressly enumerated in the statute."
Yohner argued that, in the alternative, to interpret the statute as not applying to stepgrandparents would be unconstitutional. In support of this contention, Yohner asserted that "grandparents and step-grandparents are similarly situated within the family hierarchy, " and that because they "are equally as likely as their biological counterparts to forge a close relationship with the child due to shared time and space, they must not be treated any differently by being denied exclusion under [section] 290.46[, subdivision] (e)(2)(D)(i), particularly where they demonstrate a low risk of recidivism."
The Department filed a response/opposition to the petition. The Department argued that Yohner's contention that the term "grandparent" in section 290.46, subdivision (e)(2)(D)(i) should be interpreted as including stepgrandparents was untenable, reasoning: "[B]y petitioner's logic, the term 'parent' [in section 290.46, subdivision (e)(2)(D)(i)] would include a stepparent. That would render the statute's express inclusion of the term 'stepparent' meaningless surplusage."
The Department argued that, when read as a whole, section 290.46, subdivision (e)(2)(D)(i) unambiguously excludes stepgrandparents from its scope. The Department further maintained that the court should not "rewrite section 290.46 so as to include step-grandparents where the Legislature omitted them."
The Department also maintained that the statute was constitutional. In support of this contention, the Department argued that stepgrandparents and grandparents are not similarly situated in that a grandparent is "more likely to have 'close family ties' " to a grandchild than is a stepgrandparent. (Citing Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1111 [93 Cal.Rptr.3d 736] (hereafter, G.G. Doe).) The Department further noted that in G.G. Doe, this court concluded that there was "no equal protection violation in limiting the exclusion to parents, stepparents, siblings and grandparents, as there is a rational basis for differentiating between them and more distant family members." (173 Cal.App.4th at p. 1112.) The Department argued, "[i]f the Legislature may rationally exclude blood relatives from section 290.46, then it may rationally exclude a distant non-blood relative like a step-grandfather."
After a hearing, the trial court entered an order denying the petition. In its order, the court concluded that it was "prohibited from rewriting the statute to include 'stepgrandparent.' " In addition, relying on G.G. Doe, the court rejected Yohner's contention that denying a stepgrandparent the benefit of the exclusion in section 290.46, subdivision (e)(2)(D)(i) ...