Opinion
A151926
10-15-2018
TRUONG LE, Plaintiff and Appellant, v. XAVIER BECERRA, as Attorney General, etc., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 17-HC-000001)
Truong Le appeals from an order denying his petition for a writ of mandate, which sought relief from the mandatory registration requirements of the Sex Offender Registration Act (Pen. Code, §§ 290 to 290.024). Le contends the trial court erred in concluding that he was required to register as a sex offender in California based on his 1994 conviction in Minnesota for criminal sexual conduct in the second degree (Minn. Stat., § 609.343). We affirm.
All further statutory references are to the California Penal Code unless otherwise specified.
I.
BACKGROUND
According to the verified petition and supporting declaration, Le moved from Vietnam to the United States in 1989. During a 1992 visit to a friend's home, Le made a statement to the friend's seven-year-old son that, according to Le, is commonly used in Vietnam when a child is misbehaving and "roughly translates to a threat to cut off one's penis." Although Le claims he did not intend to hurt the child in any way, the child's mother, who is not of Vietnamese descent, overheard the statement and called the police, and Le was arrested. Following a guilty plea, Le was convicted in June 1994 to one count of criminal sexual conduct in the second degree under Minnesota Statute, section 609.343, and was required to register as a sex offender. Le registered as a sex offender in Minnesota after his case was concluded.
Le did not submit any official records from his 1994 Minnesota conviction with the petition, and respondent does not concede the truth of the facts set forth in Le's declaration. We assume the truth of the allegations solely for purposes of this opinion.
In 2008, Le moved to California, and he has since complied with California's sex offender registration requirements under section 290. In September 2016, Le sent a letter to the California Department of Justice asking to be released from registration on the ground that his Minnesota conviction would not have required him to register as a sex offender in California. Le received no response from the Attorney General.
In April 2017, Le petitioned the superior court for a writ of mandate directing the Attorney General to release him from the registration requirement. The Attorney General was named as the respondent but was not served with a copy of the petition papers. In the petition, Le argued that he should not be required to register as a sex offender in California because the offense underlying his Minnesota conviction did not include all of the elements of a registerable offense in California as required by section 290.005, which governs sex offender registration for out-of-state criminal convictions.
Instead, the proof of service indicates that the petition papers were mailed to the "Office of the District Attorney." The Attorney General argues that the trial court's decision may be affirmed on the ground that Le failed to serve the petition on the proper party. But he provides no authority for the proposition that a petitioner's failure to serve a respondent with a writ petition justifies denial of the petition with prejudice. Cases indicate the proper disposition is denial without prejudice to allow for refiling and proper service. (See Superior Court v. Dist. Court of Appeal (1966) 65 Cal.2d 293, 296-298; Lewis v. Superior Court (1937) 18 Cal.App.2d 760, 761.) Thus, we decline to find that Le's failure to serve the petition on the Attorney General constitutes a sufficient basis to affirm the trial court's ruling in full.
The trial court denied the petition. It ruled that under section 290.005, subdivision (c), Le was required to register as a sex offender in California because "the Petition and the attached declaration unequivocally demonstrate that [Le] was required to register as a sex offender in Minnesota. Moreover, there are no facts asserted in the Petition or attached declaration that would trigger an analysis of Petitioner's registration requirement pursuant to section 290.005, subdivision (d)." Le appealed.
Although the record on appeal contains no formal judgment entered upon the order denying the petition for writ of mandate, the order is properly treated as a final judgment in a special proceeding for purposes of appeal. (Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 944, fn. 1.)
II.
DISCUSSION
A. The Standard of Review.
"To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty." (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103 (Marquez).) "[A] petitioner seeking relief by way of mandamus bears the burden of presenting an adequate record to demonstrate the claimed error." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1222 (Dorsey).)
"In reviewing the trial court's denial of the writ, we must determine whether its findings and judgment are supported by substantial evidence. However, where the facts are undisputed and a question of law is involved, we may exercise our independent judgment." (Riverside Sheriff's Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289.)
B. The Statutory Framework Under Penal Code Section 290.005.
Section 290.005 governs sex offender registration in California for out-of-state criminal convictions. Section 290.005, subdivision (a), states that "[e]xcept as provided in subdivision (c) or (d)," a person convicted of an out-of-state offense must register as a sex offender in California if either the elements or the facts (admitted or found true by a trier of fact) of the out-of-state convicted offense would be punishable as one or more of the offenses registerable in California under section 290, subdivision (c). (§ 290.005, subd. (a).)
Subdivision (c) of the statute sets forth an alternative basis for requiring registration in California based on an out-of-state conviction—namely, that the person "would be required to register while residing in the state of conviction for a sex offense committed in that state." (§ 290.005, subd. (c).) An exception to subdivision (c) is if the out-of-state conviction is "similar" to any of the offenses listed in subdivision (d)(1) through (5), in which case, registration in California is required only if the elements or the proven or stipulated facts of the "similar" out-of-state convicted offense contain all of the elements of a registerable California offense under section 290, subdivision (c). (§ 290.005, subd. (d).) Le does not contend, nor do we conclude, that his Minnesota offense was "similar" to any of the offenses listed in section 290.005, subdivision (d)(1) through (5). Thus, the main issue before us is whether Le would have had to register as a sex offender in Minnesota if he resided there. If so, section 290.005, subdivision (c), requires him to register in California.
The offenses listed in section 290.005, subdivision (d)(1) through (5), are: indecent exposure (§ 314), unlawful sexual intercourse (§ 261.5), incest (§ 285), sodomy (§ 286) or oral copulation (§ 288a) between consenting adults, pimping (§ 266h) and pandering (§ 266i). (§ 290.005, subds. (a), (c), (d).)
Le contends that he would not be required to register if he resided in Minnesota because that state's sex offender registration statute (Minn. Stat., § 243.166) requires registration for only 10 years, and more than 10 years have elapsed since his conviction in June 1994. He maintains that the trial court erred in ruling that he failed to satisfy his burden of establishing that he was not required to register in California on the basis that he would not be required to register if he resided in Minnesota. We are not persuaded. We agree with the Attorney General that Le failed to provide an adequate record to demonstrate a clear, present and ministerial duty on the part of the Attorney General to release him from mandatory registration in California.
Because we conclude that Le filed to satisfy his burden of showing that he would not be required to register if he resided in Minnesota, we need not and do not decide whether he would nonetheless be required to register because his Minnesota conviction qualifies as a registerable offense in California under the "least adjudicated elements" test. Under this test, "the [Minnesota] conviction [would be] registrable if the underlying offense meets all of the statutory elements of a registrable California offense." (San Nicolas v. Harris (2016) 7 Cal.App.5th 41, 45.)
C. Le Failed to Provide an Adequate Record Demonstrating He Would Not Be Required to Register in Minnesota if He Lived There.
Le argues that he would not be required to register if he resided in Minnesota because Minnesota Statute, section 243.166, requires registration for only 10 years, and more than 10 years have elapsed since his conviction in June 1994. The Attorney General points out that Le failed to provide a complete statement of the Minnesota statute or official records about his sentence, such as whether he was required to serve a term of confinement prior to the commencement of the ten-year registration period or was subject to lifetime registration. The Attorney General contends that because Le has failed to provide any evidence that he is no longer required to register in Minnesota, he has failed to show that he was entitled to relief under section 290.005, subdivision (c). We agree.
The Minnesota registration statute, section 243.166, states that "a person required to register under this section shall continue to comply with this section until ten years have elapsed since the person initially registered in connection with the offense, or until the probation, supervised release, or conditional release period expires, whichever occurs later. For a person required to register under this section who is committed under section 253B.18, Minnesota Statutes 2012, section 253B.185, or chapter 253D, the ten-year registration period does not include the period of commitment." (Minn. Stat., § 243.166, subd. 6(a).) The statute also states that "[a] person shall continue to comply with this section for the life of that person . . . if the person is required to register based upon a conviction for an offense under section . . . 609.343, subdivision 1, paragraph (a), (c), (d), (e), (f), or (h)." (Id., subd. 6(d)(3).)
Although the version of Minnesota Statute, section 243.166, in effect at the time of Le's conviction did not require lifetime registration (see Minn. Stat. § 243.166, subd. 6 (1994)), the Court of Appeals of Minnesota held in State v. Manning (Minn.Ct.App. 1995) 532 N.W.2d 244 (Manning) that Minnesota's sex offender registration statute is not punitive, and therefore, applying changes in the registration law to a defendant who was serving a sentence for criminal sexual conduct did not violate federal and state constitutional prohibitions against ex post facto laws. This is also the law in California. (See People v. Allen (1999) 76 Cal.App.4th 999, 1001 [applying registration requirement to defendant who turned 25 before provision limiting registration requirement for juvenile offenders to age 25 was repealed and statute was amended to create lifetime obligation].) " '[V]irtually every court recently considering sex offender registration laws has held that these requirements are regulatory rather than punitive.' " (People v. Castellanos (1999) 21 Cal.4th 785, 792, citing Manning.)
Given this statutory language, Le cannot simply rely on the passage of more than 10 years since his conviction to prove that he is no longer required to register in Minnesota. Because Le failed to provide any official records of his conviction and sentence and failed to include any requisite facts—other than the date of his conviction and the main statutory citation of his offense—in his supporting declaration, he has not ruled out that he was subject to lifetime registration in Minnesota, which is required for convictions based upon Minnesota, Statute, section 609.343, subdivision 1, paragraphs (a), (c), (d), (e), (f), or (h). And even if we could conclude that Le was not subject to lifetime registration, we would still be unable to conclude that he would be free from Minnesota registration requirements because he provided no evidence indicating when he was initially registered in connection with the offense, or whether he was (or was not) sentenced to any periods of probation, supervised or conditional release, or commitment, all of which would have preceded the commencement of the ten-year registration period. Le also failed to establish that he complied with all applicable registration requirements during the ten-year period (e.g., giving five days' written notice before moving to a new primary address) to avoid the imposition of additional years of registration. (See Minn. Stat., § 243.166, subds. 3(b), 6(b).) Although Le contends that the court files from his conviction are no longer available due to the age of the case, he provided no evidence to support that contention. And in his supporting declaration, he failed even to include the details of his Minnesota conviction, sentence, and registration compliance.
Le did not indicate which of the subparagraphs under Minnesota Statute, section 609.343, subdivision 1, formed the basis for his conviction. Based on the facts provided in Le's petition and declaration, Minnesota Statute, section 609.343, subdivision 1(b), would not have applied because the complainant was not "at least 13 but less than 16 years of age." (Minn. Stat., § 609.343, subd. (b) (1992).) Nor did Minnesota Statute, section 609.343, subdivision 1(g), seem to apply because there was no evidence suggesting that Le had a "significant relationship to the complainant." (Minn. Stat., § 609.343, subd. (g) (1992).) Thus, it is reasonably inferred that Le was convicted under one of the subparagraphs of Minnesota Statute, section 609.343, subdivision 1, for which the Minnesota legislature later required lifetime registration. --------
Without such evidence, Le failed to foreclose the application of section 290.005, subdivision (c). Accordingly, he did not present an adequate record showing a clear, present and ministerial duty on the part of the Attorney General to release him from mandatory registration in California. (Marquez, supra, 240 Cal.App.4th at p. 103; Dorsey, supra, 50 Cal.App.4th at p. 1222.) Thus, the trial court did not err in concluding, under section 290.005, subdivision (c), that Le was not entitled to the mandamus relief he sought.
III.
DISPOSITION
The order denying the petition for a writ of mandate is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.