Reported / Citable
Background
Arthur Molina was convicted in 2001 of lewd or lascivious conduct with a child aged 14 or 15 when the offender is at least 10 years older than the child, under Penal Code section 288(c)(1). Under California’s tiered sex offender registration system (effective January 1, 2021), that conviction placed him in tier three, meaning he must register as a sex offender for life with no path to petition for removal.
By contrast, someone convicted under section 288(a)—which covers the same lewd conduct with a child under 14, regardless of the offender’s age—is classified as a tier two registrant. Tier two registrants must register for at least 20 years and can then petition to terminate their registration under Penal Code section 290.5.
In 2022, a trial court reduced Molina’s conviction to a misdemeanor, but that did not change his lifetime registration status. Molina petitioned under section 290.5 to terminate his registration, arguing that requiring lifetime registration for section 288(c)(1) offenders while allowing eventual termination for section 288(a) offenders violated his right to equal protection under both the U.S. and California Constitutions. The trial court denied his petition, finding it was bound by an earlier appellate decision upholding the registration scheme. Molina appealed to the Sixth District Court of Appeal.
The Court’s Holding
The Sixth District Court of Appeal affirmed the trial court’s denial of Molina’s petition. The court held that a rational basis supports the Legislature’s decision to impose lifetime (tier three) sex offender registration on individuals convicted under section 288(c)(1), even though offenders convicted under section 288(a) receive shorter (tier two) registration periods.
Under rational basis review—the lowest level of judicial scrutiny, applicable because sex offender registration does not involve a suspect class or fundamental right—a challenger must disprove every conceivable justification for the law. The court identified several rational bases for the distinction. First, section 288(c)(1) requires the offender to be at least 10 years older than the victim (who must be 14 or 15), meaning the offender must be at least 24 years old. The Legislature could reasonably conclude that older, more cognitively developed adults who offend are less likely to reform than younger offenders, who may have greater rehabilitation potential. Second, the mandatory age gap in section 288(c)(1) cases reflects heightened concerns about predatory behavior by significantly older adults toward minors.
The court acknowledged Molina’s argument that section 288(a) is treated more severely in other contexts—it carries a longer prison sentence and is classified as both a violent and serious felony—but held this did not undermine the rational basis for the registration distinction. The court noted that sex offender registration serves a regulatory purpose (enabling law enforcement surveillance of likely reoffenders), which is different from the punishment-focused purposes of sentencing.
Key Takeaways
- Lifetime sex offender registration under Penal Code section 288(c)(1) survives equal protection challenges under rational basis review, even though section 288(a) offenders face shorter registration periods.
- The Legislature’s reliance on the age gap between offender and victim as a proxy for reoffense risk provides a rational basis for the tier three classification, even if the fit between the classification and the underlying concern is imperfect.
- Reducing a section 288(c)(1) conviction to a misdemeanor does not change the offender’s tier three registration status or make the offender eligible to petition for termination of registration.
- A recommendation from the California Sex Offender Management Board to reclassify section 288(c)(1) offenders to tier two does not, by itself, show that the current classification lacks a rational basis—it merely reflects a policy suggestion for legislative improvement.
Why It Matters
This decision reinforces the durability of California’s tiered sex offender registration scheme against constitutional challenge. For individuals convicted under section 288(c)(1), the practical consequence is clear: even after decades of compliance, even after a conviction is reduced to a misdemeanor, and even when an advisory body recommends reclassification, the courts will not intervene to override the Legislature’s tier three designation. Relief must come from the Legislature itself.
More broadly, the opinion illustrates how difficult it is to succeed on an equal protection challenge under rational basis review. Courts will speculate about possible justifications for a law, even ones the Legislature never articulated, and will tolerate significant inconsistencies in how similar offenses are treated across different legal contexts. For practitioners and affected individuals, the ruling signals that legislative advocacy—not litigation—is the more promising path to changing registration requirements for section 288(c)(1) offenders.