Opinion
B223033 Super. Ct. No. NA016052
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH M. COLETTA, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County
APPEAL from an order of the Superior Court of Los Angeles County, Honorable Richard E. Romero. Affirmed.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph Coletta appeals from the denial of his post-judgment request to vacate the order that he must register as a sex offender. Appellant challenges the admissibility of the evidence the court used to determine the application of the registration statute. He also claims that the court's application of discretionary sex offender registration in his case violates his right to a jury trial. As we shall explain, these claims lack merit and accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, appellant, then 27 years old, had a relationship with a woman in her mid-twenties. Appellant had on a number of occasions been participating in sexual activities with this woman's younger sister who was then 14 years old. The activities involved "French kissing, fondling, masturbation, oral copulation, and digital vaginal penetration," and in some cases alcohol was involved. During the time these activities occurred, appellant warned the minor not to tell anyone. The events were revealed when the minor confided in her mother, and appellant was subsequently arrested.
Appellant pleaded no contest to two counts of oral copulation of a person under 16 and two counts of digital penetration. He was sentenced to 16 months in state prison and ordered to mandatory lifetime sex offender registration pursuant to Penal Code section 290, subdivision (c).
All statutory references are to the Penal Code unless otherwise indicated.
After he was convicted and sentenced, section 290.006 was enacted. Section 290.006 provides for discretionary sex offender registration for adults over the age of 21 who engage in voluntary sexual intercourse with a person under the age of 16. Thereafter, in People v. Hofsheier (2006) 37 Cal.4th 1185, the Supreme Court found that the discrepancy between discretionary registration for voluntary sexual intercourse and mandatory registration for voluntary oral copulation and digital penetration lacked a rational basis and violated the Equal Protection Clauses of the Federal and State Constitutions. As a result of Hofsheier, individuals, such as appellant, subject to mandatory registration requirements based on pre-Hofsheier convictions could obtain a hearing to determine whether sex offender registration was appropriate.
Pursuant to the decision in Hofsheier, appellant filed a motion to vacate the order that he register as sex offender. He argued that he should not be subject to a registration requirement because (1) the evidence was insufficient to support the application of the discretionary registration; (2) discretionary registration constituted an ex post facto law; and (3) a judicial fact finding that the registration applied violated his right to a jury trial.
Appellant filed his request for relief in the trial court as a post-judgment "Motion to Vacate Sex Offender Registration Requirement." However, those "who are no longer in custody and whose appeals are final, claims for Hofsheier relief—relief from mandatory lifetime sex offender registration based on equal protection—must be brought by way of a petition for writ of mandate in the trial court. A freestanding post-judgment motion for Hofsheier relief . . . is not cognizable." (People v. Picklesimer (2010) 48 Cal.4th 330.) Acknowledging this authority, appellant recognizes that he "misfiled his request for relief as a motion, rather than a petition for a writ of mandate. Nonetheless, he requests that this court treat his request as a petition for writ of mandate. "'[T]he label given a petition, action or other pleading is not determinative; rather, the true nature of a petition or cause of action is based on the facts alleged and remedy sought in the pleading.'" (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 77 [a court may in its discretion treat a post judgment motion as a mislabeled petition for a writ of mandate].) Because the record before this court is sufficient to determine the issues, we grant appellant's request and exercise our discretion to entertain the merits of the appeal notwithstanding that appellant used an improper procedural vehicle to assert his claim below.
In March 2010, the lower court vacated the sentence requiring appellant's mandatory registration. The court also rejected the ex post facto and jury trial claims, and consistent with Hofsheier, considered the application of the discretionary registration statute. The court concluded that the circumstances of appellant's offense showed that the conduct was for the purpose of sexual gratification and that the relationship between appellant and the victim showed predatory tendencies. Consequently the court sentenced appellant to register as a sex offender pursuant to section 290.006.
This appeal followed.
DISCUSSION
Before this court appellant asserts that the court did not have sufficient admissible evidence to support application of the discretionary sex offender registration statute and that the determination of whether the statute applied should have been made by a jury rather than the trial court.
I. The court did not err in finding that appellant was subject to the section 290.006 registration requirement
Appellant claims that the court had insufficient admissible evidence to supports its conclusion that he should be subject to the sex offender registration requirement under section 290.006. The Attorney General points out, however, that appellant forfeited any objection to the admissibility of the evidence because he failed to assert it below, and in any event, the evidence the court relied upon in reaching its decision was admissible and substantial.
A. Failure to object
In this court, appellant argues that the evidence used by the trial court to determine his candidacy for registration violated his rights under the confrontation clause and due process by relying on hearsay evidence. He specifically objects to the court's consideration of: (1) the Long Beach Police Report DR 933-6017, in which appellant admitted to several sexual acts with the minor; and (2) a 1993 psychological evaluation. Appellant, however, did not assert specific hearsay or confrontation clause objections below.
A defendant forfeits a claim on appeal by failing to object to the introduction of consideration of evidence on either hearsay or constitutional grounds during the trial court proceedings. (Evid. Code, § 353, subd. (a); People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeiture of federal confrontation clause claim by failing to raise it at trial].)
Appellant points to an objection he asserted to the use of allegations in the charging documents to show that the acts occurred through force or fear, and a general complaint that the court had no basis in the record for imposing discretionary registration. He concedes, however, that he did not object on hearsay or constitutional grounds. The objections appellant asserted are imprecise and insufficient; they would not have informed the lower court of the nature of appellant's complaint.
Anticipating the application of forfeiture, appellant also claims that his counsel was ineffective for failing to assert these objections. To successfully argue ineffective assistance of counsel, appellant must demonstrate: (1) the failure to object was deficient conduct on the part of his lawyer; and (2) that appellant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Absent a showing of prejudice, no amount of deficient conduct is sufficient to support a finding of inefficient assistance of counsel. (Hovey v. Ayers (2006) 458 F.3d 892 [failure to present a defense to a charge was not prejudicial].) To show prejudice as a result of counsel's deficient conduct, appellant must show that there is a reasonable probability that but for the counsel's error, there would have been a different outcome. (Strickland, supra, 466 U.S. at pp. 694-695.)
Appellant cannot establish prejudice. Imposition of the discretionary sex offender registration is a sentencing decision. (See People v. Garcia (2008) 161 Cal.App.4th 475, 483.) Under California sentencing guidelines, a court can use any relevant evidence, including hearsay, in applying discretionary sentencing orders. (Ibid.) Due process does not require that a sentencing judge adhere to the same evidentiary rules that apply to a trial court during the guilt phase. The court may properly consider reliable out-of-court information, including hearsay and information about the defendant's life and circumstances surrounding the crime. (People v. Arbuckle (1978) 22 Cal.3d 749, 754; see also People v. Peterson (1973) 9 Cal.3d 717, 725 ["Once guilt has been established, evidence which would have been inadmissible on the issue of guilt may nevertheless be received as bearing on the punishment to be imposed."].) In addition, a defendant does not have a Sixth Amendment right of confrontation at a sentencing proceeding. (People v. Cain (2000) 82 Cal.App.4th 81, 86.) Consequently, even had appellant's counsel objected to the admission of this evidence on hearsay or confrontation clause grounds, the lower court would have properly rejected those objections and considered the evidence.
In any event, even without the complained of evidence, it is not clear that the remaining evidence was insufficient to demonstrate that discretionary registration was an inappropriate sentence. In addition to the evidence objected to on appeal, as described below, the trial court relied on the undisputed factual circumstances surrounding the crime. The trial court put specific emphasis on the relationship between appellant and the victim as well as the factual relationship of the age of the victim and appellant at the time of the offense.
B. The evidence supported discretionary registration
The trial court decision to order lifetime registration as a sexual offender is reviewed for abuse of discretion. (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 79.) Appellant contends that the only reason to order discretionary registration is if the court determines that he is likely to re-offend, and in that the admissible evidence does not outweigh the fact that he has not re-offended in 17 years. We disagree.
Hofsheier describes a two-tiered approach for applying discretionary sex offender registration: (1) it must determine whether the offense was committed as a result of sexual compulsion or for the purpose of sexual gratification; and (2) it must state the reasons for requiring lifetime registration. (People v. Hofsheier, supra, 37 Cal.4th at p. 1197.) When deciding whether to impose discretionary registration, the court exercises its discretion to consider all relevant information available to it at the time it makes the decision. (People v. Bautista (1998) 63 Cal.App.4th 865, 868.)
1. Gratification
Several factors support determination that appellant committed the offense as a result of sexual compulsion or for the purpose of sexual gratification. The crime to which the defendant pleaded guilty involved several sexual acts with the victim. The court also noted "[t]he Defendant had the minor victim orally copulate him once, she refused, didn't want to do it again. He asked for - 'For her to jack him off.'" Finally, the court notes during the incident the appellant sucked on her breasts, penetrated her vagina with fingers on at least two occasions. Based on the totality of this conduct, the court did not abuse its discretion in determining the acts were done for the purpose of sexual gratification.
2. The reasons for lifetime registration
The court satisfies this obligation by acknowledging that appellant used his relationship with the victim's older sister to gain access to the minor victim, which evidences a predatory aspect of the behavior. Additionally, appellant's knowledge of the victim's age and the disparity in their ages allowed appellant to exert his authority over the victim to achieve his aims.
Appellant emphasizes that he has not reoffended since the underlying offense, comparing his own case to that of Lewis v. Superior Court. In Lewis, the court did not require the defendant to submit to sex offender registration after his Hofsheier hearing, concluding that "the only possible basis for imposing discretionary registration in 2008 would be a finding that it is likely Lewis will start committing such offenses now." (Lewis, supra, 169 Cal.App.4th at p. 79.) Lewis is factually distinct from this case in important respects. In Lewis the crime involved a woman assumed to be an adult (who was later found to be 17) and there was no allegation of an improper relationship or any predatory aspect to the defendant's crime. In Lewis, the court found that based on the circumstances of the crime he was convicted of, that there was no reason to believe he would re-offend rather than using the post-conviction history as evidence of his future likelihood not to offend.
In contrast to the situation presented in Lewis, here based on the circumstances of the crime, we cannot say that the lower court abused its discretion, notwithstanding appellant's post-incarceration conduct. Accordingly, appellant has not demonstrated reversible error.
II. Discretionary sex offender registration does not require a jury fact finding
Appellant argues that imposing discretionary sex offender registration based on judicial fact-finding violates his Sixth Amendment right to a jury trial. Specifically, he argues that the Proposition 83 ("Jessica's Law") registration requirements result in punishments beyond the statutory maximums for his original crimes. The primary basis for this contention is Apprendi v. New Jersey (2000) 530 U.S. 466, which held that increasing a penalty for a state crime beyond prescribed statutory maximums required a jury finding on the facts beyond a reasonable doubt.
The California Supreme Court rejected this very challenge in People v. Picklesimer, supra, 48 Cal.4th 330, concluding that sex offender registration is not considered a form of punishment under the state or federal constitutions. If the Jessica's Law registration requirements are not considered punishments for original offenses, then a judicial discretionary finding requiring lifetime registration is not a violation of his right to a jury trial. (Id. at p. 345.) In view of the controlling authority on this issue, we conclude the court did not err in failing to submit the sentencing determination to a jury.
DISPOSITION
The order is affirmed.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.