Filed 3/19/20 Thompson v. Dept. of Justice CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

MICHAEL THOMPSON,

Plaintiff and Appellant,

v.

DEPARTMENT OF JUSTICE,

Defendant and Respondent.

B288058

(Los Angeles County

Super. Ct. No. BC654358)

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth Allen White, Judge. Affirmed.

Michael Thompson, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Danielle F. O’Bannon, Senior Assistant Attorney General, Catherine Woodbridge and Joel A. Davis, Deputy Attorneys General, for Defendant and Respondent.

______________________________________________

INTRODUCTION

Appellant Michael Thompson is registered as a sex offender as a result of a 1994 conviction for a lewd or lascivious act with a 14- or 15-year-old child. Respondent Department of Justice (DOJ) publishes appellant’s name and certain other information about him, including his sex-offense conviction, on a website it maintains pursuant to Penal Code section 290.46 (Megan’s Law). (See Doe v. Harris (2013) 57 Cal.4th 64, 66.) Appellant filed a complaint in propria persona against the DOJ, admitting his sex-offense conviction but alleging it did not authorize the DOJ to publish his name on the Megan’s Law website. The trial court sustained the DOJ’s demurrer to the complaint with leave to amend, then sustained the DOJ’s subsequent demurrer to appellant’s amended (but largely identical) complaint, this time without leave to amend. It ruled, inter alia, that appellant had failed to allege facts demonstrating it was improper for the DOJ to publish his name on the Megan’s Law website.

On appeal, appellant contends the trial court erred in sustaining the DOJ’s demurrer to the amended complaint without leave to amend. Finding no error, we affirm.

PROCEEDINGS BELOW

A. Original Complaint
B.
In March 2017, appellant filed a complaint in propria persona, alleging the DOJ was improperly publishing his name on the Megan’s Law website. Among other exhibits attached to his complaint, appellant submitted a printout of a portion of his “Offender Profile” on the Megan’s Law website, which indicated, inter alia, that he had been convicted in 1994 of a violation of Penal Code section 288, subdivision (c).

Appellant alleged, “The correction need[s] to be made as it refers to the California Penal Code. Penal Code 288C- vs Penal 288. Penal Code 288C- is consensual sex with a minor 14-17 years of age (not Megan’s Law). Penal Code 288 is Lewd acts with a child 13 years or younger. Megan’s Law pertains to a minor 13 years or younger, [appellant’s] conviction is for a minor over the age of 13 which is NOT Megan’s Law.” He further alleged that the unauthorized publication of his name on the Megan’s Law website had caused him to be harassed, denied rental housing, threatened, and physically harmed. He sought correction of the website in addition to compensatory and punitive damages.

The DOJ demurred to appellant’s complaint on several grounds, including that the complaint failed to allege facts sufficient to constitute a cause of action. It explained, “[Appellant] was convicted in 1994 of an unlawful sex act with a minor 14-15 years of age, in violation of Penal Code section 288, subdivision (c). As such, he was required [under Penal Code section 290, subdivision (c)] to register as a sex offender. Thus, [appellant] was subject to listing on the Megan’s Law website, and [appellant’s] belief that Megan’s Law only applies where the victim is 13 or younger is legally incorrect.”

The trial court sustained the DOJ’s demurrer with leave to amend. The court ruled that the complaint failed to identify a statutory basis for DOJ liability as required by the Government Claims Act (Gov. Code, § 810 et seq.), and that the proper procedure for appellant’s request to correct the Megan’s Law website was a petition for a writ of mandate. The court further ruled that because the exhibits to the complaint reflected that appellant had been convicted of a violation of Penal Code section 288, subdivision (c), his “fundamental argument that his name should not be listed on the internet website is not well-taken, unless the offense was not a felony.”

C. Amended Complaint
D.
Appellant timely filed a first amended complaint (FAC). The FAC did not allege that his offense was a misdemeanor. Instead, the FAC repeated most of the original complaint’s allegations and additionally alleged the following: “In 1994 when I was convicted . . . there was not a California Penal code that combined convictions under PC 288. [¶] In the year 1994- PC 288 was/is a non-violent, non strikeable charge. [¶] In the year 1994 PC 288C was . . . not Megan[’]s Law[.] PC 288C- is a sentence for probation up to five (5) years and does not include a lifetime registration as a sex [offender.] In 1994 the Los Angeles County falsified documents against me and the Department of Justice (DOJ) published the same. . . . The DOJ represented that PC 288 is a consen[s]ual sex with a minor 14 or 15. [¶] I was convicted under PC 288C. PC 288C is consen[s]ual sex with a minor 14 or 15 years. Because of this initial sentence in 1994, it [i]s unlawful to incorporate the s[ub]sequent law, I would have had to [have] been sentenced after 2012 for this law to apply to me. . . . [¶] . . . [¶] The law the DOJ might be referring to is the Three (3) strikes law that came into being after I, Michael Thompson was convicted, this is not applicable to me Michael Thompson.”

The DOJ demurred to the FAC, arguing the FAC “still [did] not state a cause of action and [did] not eliminate the fatal flaws of the original complaint.” The trial court sustained the demurrer, this time without leave to amend. The court again concluded, inter alia, that appellant’s “fundamental argument that his name should not be listed on the internet website is not well-taken, unless the offense was not a felony.” The court reasoned that: (1) the exhibit and criminal records attached to appellant’s original complaint reflected that he was convicted of a violation of Penal Code section 288, subdivision (c); (2) felony convictions under that section require publication of specified information on the Megan’s Law website, pursuant to Penal Code section 290.46, subdivision (b)(2)(H); and (3) as held in Doe v. Brown (2009) 177 Cal.App.4th 408, 422-424, “the Legislature intended that the Megan’s Law publication provisions apply to all persons who are required to register as sex offenders, as long as the registrant has suffered a conviction specified in [Penal Code] section 290.46, subdivision (b), (c), or (d).”

Appellant timely appealed from the judgment dismissing the FAC.

DISCUSSION

Appellant contends the trial court erred in sustaining the DOJ’s demurrer to the FAC without leave to amend. The FAC sought damages for the allegedly unauthorized publication of appellant’s name on the Megan’s Law website, as well as correction of the website.

A. Principles
B.
Penal Code section 288, subdivision (c), makes a person guilty of an offense, which may be punished as a felony or a misdemeanor, if the person is at least 10 years older than a 14- or 15-year-old child and commits any lewd or lascivious act upon that child’s body with a specified sexual intent. (See Pen. Code, § 288, subd. (c).) The statute’s text was substantively identical, for present purposes, in 1994. (See Stats. 1989, ch. 1402, § 3; Stats. 1993-94, ch. 60, § 1.) A conviction under the statute requires lifetime registration as a sex offender. (See Pen. Code, § 290, subds. (b)-(c).)

Megan’s Law requires the DOJ to publish information about registered sex offenders on a website. (Pen. Code, § 290.46, subd. (a).) It expressly requires the publication of the names of persons required to register as a result of convictions under Penal Code section 288, subdivision (c), along with other specified information about such persons. (Id., § 290.46, subds. (b)(2)(H), (d)(2)(F).) The publication requirement applies retroactively to offenses committed before Megan’s Law was enacted. (Pen. Code, § 290.46, subd. (m) [“The public notification provisions of this section are applicable to every person described in this section, without regard to when his or her crimes were committed or his or her duty to register pursuant to Section 290 arose, and to every offense described in this section, regardless of when it was committed”].)

“On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, appellate courts assume the truth of all facts properly pleaded by the plaintiff-appellant and may also consider matters subject to judicial notice, [but] ‘not contentions, deductions, or conclusions of fact or law.’ [Citations.] [¶] Likewise, the reviewing court . . . considers all evidentiary facts found in recitals of exhibits attached to the complaint [citation].” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2019) ¶ 8:136.) “There is reversible error . . . if facts were alleged ‘showing entitlement to relief under any possible legal theory.’” (Ibid.) Alternatively, there is reversible error if the reviewing court determines “there is a reasonable possibility the pleading can be cured by amendment; otherwise, the trial court’s decision will be affirmed for lack of abuse.” (Id. at ¶ 8:136.2.) “The plaintiff-appellant has the burden of demonstrating abuse of discretion by showing how the complaint can be amended to state a cause of action.” (Id. at ¶ 8:136.3.)

C. Analysis
D.
We find no error in the trial court’s sustaining of the DOJ’s demurrer to the FAC without leave to amend, because the FAC alleged no facts sufficient to show any impropriety in the publication of appellant’s name on the Megan’s Law website, and because appellant has failed to show that he could have amended the FAC to allege such facts. As appellant alleged in the FAC and concedes on appeal, he was convicted of a violation of Penal Code section 288, subdivision (c). As noted, Megan’s Law requires publication of the names of all persons convicted under that section, regardless of when the conviction occurred and whether the offense was a felony or a misdemeanor. (Pen. Code, § 290.46, subds. (b)(2)(H), (d)(2)(F), (m).)

Appellant does not challenge the retroactive application of Megan’s Law (enacted two years after his conviction). Instead, he appears to challenge the retroactive application of a purported change in law that increased the duration of his sex offender registration requirement from five years to life. There was no such change; even in 1994, when appellant was convicted, the registration requirement was lifelong. (See People v. McClellan (1993) 6 Cal.4th 367, 376, fn. 7 [observing in 1993 that Penal Code section 290 imposed on sex offenders “‘a lifelong requirement of registration,’” subject to being lifted in certain circumstances].) Even had the duration of appellant’s registration requirement been extended, the extension would not have been an unconstitutional ex post facto punishment. (See Johnson, supra, 60 Cal.4th at 888, fn. 10 [“sex offender registration is not punishment ([In re Alva, supra, 33 Cal.4th at 268]), and a person may be required to register for crimes that were committed before they became offenses subject to registration”].)

Appellant cites several cases without attempting to relate them to the publication of his name on the Megan’s Law website. The cases are inapposite. (See People v. Barney (1983) 143 Cal.App.3d 490, 497-498 [erroneous jury instruction and prosecution argument prejudiced defendant’s claim of lack of opportunity to commit offense at time fixed by prosecution evidence]; People v. Dontanville (1970) 10 Cal.App.3d 783, 796 [trial court did not err in instructing jury consent is not element of Penal Code section 288 violation]; People v. Toliver (1969) 270 Cal.App.2d 492, 496 [whereas consent may be material to statutory rape charge if the defendant reasonably believed the minor to be an adult, “violation of section 288 does not involve consent of any sort”]; People v. Simcich (1949) 91 Cal.App.2d 524, 525 [consent was immaterial to intent element of Penal Code section 288]; People v. Russell (1926) 80 Cal.App. 243, 246 [consent “was not involved” in prosecution under Penal Code section 288].)

In sum, we find no error in the trial court’s sustaining of the DOJ’s demurrer to the FAC without leave to amend, because the FAC alleged no facts showing an entitlement to relief under any possible legal theory, and because appellant has failed to show how he could have amended the FAC to allege such facts.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.