What is the test for an equal protection claim under the equal protection clause based on sentencing disparities?

"The 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.] We do not inquire whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. [Citation.] This prerequisite 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 in order to determine whether the distinction is justified." (People v. Moreno (2014) 231 Cal.App.4th 934, 941-942.)

Assuming that for equal protection purposes, misdemeanants whose felonies were reduced to misdemeanors under Proposition 47 are similarly situated to post-Proposition 47 misdemeanants with respect to DNA collection, we consider whether disparate treatment of the two groups is justified, noting that " '[a] rational basis test applies to equal protection challenges based on sentencing disparities.' " (People v. Dobson (2016) 245 Cal.App.4th 310, 318.) "Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ' [Citations.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities

Page 17

of the subject matter cannot be completely ignored [citation], a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)