Opinion
B223953
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES HERNANDEZ, Defendant and Appellant.
Tara K. Hoveland, 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, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Super. Ct. No. KA051799)
APPEAL from an order of the Superior Court of Los Angeles County. Gilbert M. Lopez, Judge. Reversed.
Tara K. Hoveland, 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, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant James Hernandez appeals from the trial court's order requiring him to register as a sex offender. He appeals on the grounds that: (1) the trial court erred when it denied appellant's request for a jury trial on the question of whether he should be ordered to register as a sex offender, and (2) the registration requirement must be stricken because the trial court abused its discretion in ordering appellant to register pursuant to Penal Code section 290.006.
All further references to statutes are to the Penal Code unless stated otherwise.
FACTUAL AND PROCEDURAL HISTORY
In 2001, appellant pleaded "no contest" to one count of oral copulation with a person under the age of 16 in violation of section 288a, subdivision (b)(2). (People v. Hernandez (2008) 166 Cal.App.4th 641, 644-645 (Hernandez), overruled on procedural grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4 (Picklesimer).)Appellant met the victim in 2000 when she was 13 years old and he was 20 years old.They began a sexual relationship. On March 17, 2001, at approximately 10:00 p.m., appellant was orally copulating the victim in his car, which was parked in a South El Monte park. A sheriff's deputy drove up to appellant's car to investigate. The deputy asked appellant and the victim to exit the car and questioned them. Appellant said the victim was his 14-year-old girlfriend and that he was 22 years old.
We obtain the facts from the People's opposition to appellant's demand for a jury trial.
The trial court placed appellant on five years' probation and ordered him to register as a sex offender under former section 290, subdivision (a)(1)(A). (Hernandez, supra, 166 Cal.App.4th at pp. 644-645.) In 2007, appellant sought to vacate his mandatory registration requirement following the California Supreme Court decision in People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), but the trial court denied the motion. (Hernandez, supra, 166 Cal.App.4th at p. 645.) Appellant appealed, and this court concluded that the mandatory sex offender statute was unconstitutional as applied to section 288a, subdivision (b)(2). We reversed the order requiring appellant to register as a sex offender under former subdivision (a)(1)(A) of section 290. (Hernandez, at pp. 646, 652.) The trial court was directed to determine whether appellant was subject to discretionary registration under former subdivision (a)(2)(E) of section 290 and, if so, to exercise its discretion. (Hernandez, at p. 652.)
After appellant's conviction, section 290 was renumbered effective October 13, 2007. (Stats. 2007, ch. 579, §§ 1, 8.) The provision requiring paroled or discharged sex offenders to register is now contained in section 290.003. (Stats. 2007, ch. 579, § 11.)
On March 18, 2009, the People filed a motion to order appellant to register as a sex offender pursuant to section 290.006. On November 19, 2009, appellant demanded a jury trial on the issue of whether he should be ordered to register, and the trial court ordered briefing from both parties on the issue. On December 18, 2009, the trial court denied the jury trial motion. The trial court subsequently heard argument and took under submission the issue of whether it would exercise its discretion to order appellant to register. On April 9, 2010, the trial court ordered appellant to comply with registration in accordance with section 290.006.
Prior to the People filing their motion, appellant filed a "Memorandum of Points and Authorities in Opposition to Order for Sex Offender Registration PC § 290.006."
DISCUSSION
I. Asserted Right to Jury Trial
A. Appellant's Argument
Appellant contends that the residency restriction in his section 290.006 registration order is punitive, and by imposing this restriction, the trial court increased the penalty for his misdemeanor offense beyond the prescribed statutory maximum for the crime he committed. Therefore, the facts required to impose the residency restriction under section 290.006 must be found beyond a reasonable doubt by a jury as held in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).
B. Relevant Authority
"On November 7, 2006, the voters enacted Proposition 83, the Sexual Predator Punishment and Control Act: Jessica's Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) . . . ." (In re E.J. (2010) 47 Cal.4th 1258, 1263.) Proposition 83 revised the Penal Code in certain respects and included an amendment to section 3003.5, a statute that sets forth restrictions on where registered sex offenders on parole are allowed to reside. The initiative added section 3003.5, subdivision (b), which provides: "Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather." The restriction took effect on November 8, 2006, the effective date of Proposition 83. (In re E.J., at p. 1263.)
In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In determining whether a measure is punitive in effect, "the United States Supreme Court stated a two-pronged analysis: 'If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "'so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.'" [Citations.] Because we "ordinarily defer to the legislature's stated intent," [citation], "'only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty," [citations].' [Citation.]" (In re Alva (2004) 33 Cal.4th 254, 274 (Alva), quoting Smith v. Doe (2003) 538 U.S. 84, 92.)
C. No Jury Trial Required
In Picklesimer, the California Supreme Court rejected the same challenge made by appellant here. While acknowledging that previous California Supreme Court decisions held that sex offender registration was not punishment, defendant Picklesimer argued that the section 3003.5, subdivision (b) sex offender residency requirements of Jessica's Law are punishment, and that the facts in support of continued sex offender status must be found beyond a reasonable doubt by a jury pursuant to Apprendi and its progeny. (Picklesimer, supra, 48 Cal.4th at p. 344.)
The Picklesimer court stated that if the Jessica's Law registration requirements are not considered punishment for the original offenses, then a judicial discretionary finding requiring lifetime registration is not a violation of a defendant's right to a jury trial. (Picklesimer, supra, 48 Cal.4th at p. 344.) "If Proposition 83's [i.e., Jessica's Law's] restrictions do not amount to punishment for [Picklesimer's] original crimes, there is no Apprendi problem and no right to a jury trial. Conversely, if Proposition 83's restrictions were to be considered punishment for his original offenses (but see In re E.J. [, supra,]47 Cal.4th 1258, 1271-1280 ), they could not under the state and federal ex post facto clauses be constitutionally applied to Picklesimer, whose crimes all long predate the approval of Proposition 83. [Citations.] In either event, there is no constitutional bar to having a judge exercise his or her discretion to determine whether Picklesimer should continue to be subject to registration." (Picklesimer, at p. 344.)
Applying Picklesimer to appellant's case, appellant likewise cannot show an Apprendi violation. If the residency restrictions do not amount to punishment for his original offense, appellant has no right to a jury trial. (Picklesimer, supra, 48 Cal.4th at p. 344.) On the other hand, if the residency restrictions are considered punishment for appellant's original crimes, they would violate the state and federal Constitutions' ex post facto clauses, and could not be applied to him, since his crime, like Picklesimer's, predated the enactment of Jessica's Law. (Picklesimer, at p. 344.) Consequently, the trial court in this case was not constitutionally precluded from determining that appellant should continue to be subject to registration pursuant to section 290.006. (Picklesimer, at p. 344.)
Given the controlling authority set out in Picklesimer, the court did not err in failing to submit the issue of residency restriction to a jury.
II. Alleged Abuse of Discretion
A. Appellant's Argument
Appellant contends the trial court relied on mistaken facts and improperly shifted the burden of proof to appellant in exercising its discretion to impose the registration requirement. The trial court also failed to make the statutorily required finding that appellant was likely to reoffend. Even if the finding were to be implied, it is not supported by competent, substantial evidence. Moreover, appellant was not considered an eligible offender for the Static-99 examination and thus the trial court's reliance on the Static-99 in making its order was improper. Also, the trial court failed to obtain a probation report as required by section 1203 subdivision (d). For all of these reasons, appellant argues, the registration requirement must be vacated.
Section 290.04, subdivision (b)(1) provides that the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) for adult males required to register as sex offenders shall be the Static-99 risk assessment scale.
B. Relevant Authority
To impose discretionary sex offender registration under section 290.006, "the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender." (Hofsheier, supra, 37 Cal.4th at p. 1197.) The requirement of a separate statement of reasons for requiring registration demonstrates that the statute accords discretion to the trial court "to weigh the reasons for and against registration in each particular case." (Ibid.) "[D]iscretionary registration does not depend on the specific crime of which a defendant was convicted." (Id. at pp. 1197-1198.) The discretionary provision allows the trial court to require lifetime registration if it finds the crime to have a sexual purpose even if the crime was not a sexual offense, such as may occur where, in a burglary conviction, a trial court finds that the defendant entered with the intent of committing a sexual assault. (Id. at p. 1198.) "Since the purpose of sex offender registration is to keep track of persons likely to reoffend, one of the 'reasons for requiring registration' under section 290.006 must be that the defendant is likely to commit similar offenses—offenses like those listed in section 290—in the future." (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78. (Lewis).)
Section 290.006 provides: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration."
In applying the abuse of discretion standard, "[b]road deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did." [Citations.]' [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
C. Proceedings Below
On March 25, 2010, the parties met in order to set a hearing date. Both counsel agreed to submit the matter on the evidence of court-appointed psychologist Dr. Hy Malinek subsequent to their arguments. Appellant's counsel stated that the only evidence before the court was that provided by the doctor, who had prepared an evaluation and a Static-99 report, and who had obtained some material from those who counseled appellant at the time of his probation grant. Counsel stated that Dr. Malinek was of the opinion that appellant was not a likely recidivist and had not reoffended in the seven or eight years since his grant of probation. Everything indicated that discretionary registration was not appropriate. There were "no facts, no evidence, no law, no discretion" that supported a discretionary order.
Invoking the two-part analysis from Hofsheier, supra, 37 Cal.4th at page 1197, the People argued that there could be no dispute that the offense appellant committed was for purposes of sexual gratification. Turning to the second step of the analysis, the People argued that there were two reasons for appellant to maintain his registration. First was the nature of the offense. The victim was only two weeks past her 14th birthday at the time of the offense and admitted she and appellant had engaged in sexual conduct when she was 13. Had appellant been arrested earlier, he would have been subject to mandatory registration. The People stated that the difference in age between victim and appellant was eight years. The second reason to impose registration was Dr. Malinek's opinion. Dr. Malinek gave appellant a score of "3" on the Static-99, which was in the "medium to low" risk range. The corresponding percentage of risk of reoffending was 5.7 percent to 15.7 percent. Dr. Malinek also scored appellant on the Static-2002, giving him a "5," which signified a moderate risk, with a risk of re-offense of 15 percent. The People believed that it was premature to remove appellant from the registry only nine years after the offense and to allow him to "go off the radar." The trial court said it would consider all the evidence and the arguments. In a written decision, the trial court ordered appellant to register as a sex offender.
D. Registration Order Must Be Reversed
In its written ruling, the trial court first stated that appellant had produced no evidence that the offense was committed other than for sexual gratification or out of sexual compulsion. The court said it had heard no testimony from appellant and had received no documentary evidence.
Appellant is correct that the trial court improperly assigned to him the burden of proof as to whether discretionary registration should be imposed. "The burden of proof is to law what inertia is to physics—a built-in bias in favor of the status quo. (See Evid. Code, § 500.) That is, if you want the court to do something, you have to present evidence sufficient to overcome the state of affairs that would exist if the court did nothing." (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388.) "[T]he 'general principle' of Evidence Code section 500 is 'that a party who seeks a court's action in his favor bears the burden of persuasion thereon.' [Citation.]" (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 24.) In the present case, this court determined that appellant was not subject to mandatory registration under Hofsheier. (Hernandez, supra, 166 Cal.App.4th at p. 646.) Therefore, the status quo consisted of appellant's being free of a registration requirement. The People filed a motion to order sex offender registration pursuant to section 290.006 on March 27, 2009, after our decision. Consequently, the People had the burden of persuading the trial court that the crime was committed for purposes of sexual gratification or as a result of sexual compulsion and that the evidence weighed in favor of requiring discretionary registration. A misallocation of the burden of proof may be harmless error if it is not prejudicial. (People v. Beltran (1989) 210 Cal.App.3d 1295, 1308.) In this case, however, the misallocation of the burden of proof had an adverse effect on appellant's motion.
Evidence Code section 500 provides: "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."
Moreover, the Comprehensive Psychological Assessment by Dr. Malinek, one of two documents considered by the trial court, was requested by appellant's counsel in order to address the issue of whether appellant acted out of sexual compulsion or for sexual gratification as well as to determine if appellant is likely a repeat offender. Dr. Malinek did not specifically address the issue of sexual gratification, but he stated that appellant's conduct in the incident was not a product of sexual deviation or pedophilic inclinations. Rather, it was a reflection of immaturity and low self-esteem.With respect to sexual gratification, it appears difficult, if not impossible, for a defendant who engages in voluntary sexual acts with a partner, albeit an underage one, to argue that he or she did not engage in the conduct for the purpose of sexual gratification. Finally, we note that the trial court did not expressly state that it found appellant committed the offense either for sexual gratification or as a result of sexual compulsion. Assuming such a finding was impliedly made, the trial court did not state reasons for its findings, as required by Hofsheier. (37 Cal.4th at p. 1197.)
Appellant has requested this court to augment the record to include Dr. Malinek's Comprehensive Psychological Assessment and his Actuarial Assessment Report, which contains the results of the Static-99 and Static-2000 risk assessment analyses that the doctor performed. We refer to the contents of the psychological assessment and the actuarial assessment report only to the extent required to explain our holding. Appellant has requested this court to seal these two documents pursuant to California Rules of Court, rule 8.46(e). We grant this request in a separate order.
In addition, the trial court's other reasons for requiring registration were not compelling. The trial court cited Dr. Malinek's actuarial assessment, which gave appellant a score of "3," characterized as being in the "'Low Moderate Range.'" Appellant's corresponding likelihood of future convictions was 5.7 to 15.7 percent in five years and 5.7 to 23 percent in 10 years. The trial court said it would have been "more persuaded" to exercise its discretion in appellant's favor if his score were in the "'low'" range. Our examination of the entire actuarial assessment shows that Dr. Malinek noted appellant's successful participation in sex offender treatment and the fact that he had been offense-free for eight years. He had not engaged in any violent or antisocial conduct. According to Dr. Malinek, the authors who developed the scoring method reported that when an offender is offense-free in the community for five or 10 years, the actuarial risk is halved, which would mean that appellant's current recidivism rate fell well below 5 percent. In the Static-2002 analysis, appellant scored a "5," which is considered moderate. In this assessment as well, Dr. Malinek noted that the recidivism estimates were remarkably consistent with those of the Static-99 and that both "essentially denote recidivism rates well below 5% at this time." It appears the trial court did not consider Dr. Malinek's remarks on appellant's low recidivism risk. Since the purpose of the Static-99 and Static-2002 are to measure recidivism, the fact that appellant's recidivism rate is so low is significant. In fact, it is the most important consideration. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1431; see also People v. Garcia (2008) 161 Cal.App.4th 475, 485, overruled on procedural grounds in Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4.) In his comprehensive psychological assessment of appellant, Dr. Malinek stated that his analysis of the research-supported risk analysis denoted a low risk in appellant's case. In the next paragraph, Dr. Malinek reiterated that appellant's score in the Static-99 denoted a low risk, and the doctor again observed that appellant had not been found to have engaged in sexually inappropriate conduct during the prior eight years. At the end of the report, Dr. Malinek again stated that appellant's risk of recidivism was low.
We note that appellant's raw scores will never change, based as they are on factors relating to his offense and history that, of course, are impossible to change.
The trial court found fault with Dr. Malinek's statement, "I doubt that this case warrants the type of close monitoring and yearly registration like other cases, which involve convictions of lewd act or inappropriate sex with children or non-consenting victims." The trial court said it could not base its decision on an opinion based on a doubt. We observe that Dr. Malinek uses the phrase "I doubt" in his assessment several times. The use of the phrase appears to be Dr. Malinek's way of expressing his opinion while acknowledging that it is merely that. The trial court once again placed the burden of proof upon appellant by suggesting that perhaps additional evidence from the community, employment, or religious, educational, or social institutions could have aided it in its application of discretion in favor of appellant.
The trial court also considered the difference in age of the victim and appellant. The trial court correctly stated that the victim was 14, but incorrectly stated appellant's age as 23 at the time of the offense. Since there is no probation report, we do not know appellant's date of birth, but the People's motions indicate he was 22 at the time of the offense. Finally, the trial court stated it was not persuaded by the argument of appellant's counsel that the court may only consider the likelihood of recidivism as the only factor for the court's consideration. We do not find such an assertion in counsel's argument. Moreover, as noted, the risk of reoffending is the most important factor to consider in determining whether a defendant should be subject to discretionary registration. (People v. Thompson, supra, 177 Cal.App.4th at p. 1431.)
In Lewis, a case where the defendant's conduct was more egregious than appellant's and where the defendant was more criminally inclined than appellant, the reviewing court ordered vacated a discretionary registration order. (Lewis, supra, 169 Cal.App.4th at p. 80.) Lewis's offenses—two counts of oral copulation with a minor under the age of 18—occurred 20 years earlier rather than nine years earlier as in appellant's situation, and Lewis's victim was 17 rather than 14. However, the reviewing court recited evidence from the preliminary hearing (no trial transcript was in the record) alleging that Lewis, unlike appellant, had exercised some coercion upon the victim in having her orally copulate him. (Id. at pp. 73-74.) The reviewing court noted that Lewis had committed no offenses requiring him to register as a sex offender in the years since his conviction. (Id. at p. 79.) The Lewis court stated that, even if it assumed Lewis took advantage of the victim's vulnerable situation, Lewis had not committed a single similar incident since that time. "Thus, the only possible basis for imposing a discretionary registration requirement in 2008 would be a finding that it is likely Lewis will start committing such offenses now. There is nothing in the record to support such a finding." (Ibid.)The court concluded that neither Lewis's 1987 conviction nor his subsequent criminal history, a negative factor appellant does not share, supported an order requiring him to register as a sex offender. (Ibid.)
At Lewis's trial, the court granted Lewis's motion under section 1118.1 and found the evidence insufficient to support a conviction on charges that he had committed forcible oral copulation. (Lewis, supra, 169 Cal.App.4th at p. 75.)
Lewis's criminal record subsequent to his offense included a 1995 misdemeanor conviction for failure to register as a sex offender, two misdemeanor convictions for soliciting prostitution in 1988 and 1993, a narcotic sales conviction, several felonies for possession of a controlled substance, and a misdemeanor domestic violence conviction. (Lewis, supra, 169 Cal.App.4th at p. 75.)
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We also conclude, after examining the entire record, that there is nothing in appellant's case that supports a finding he is likely to begin committing offenses that require him to register as a sex offender. The reports by Dr. Malinek that the trial court relied upon do not support such a finding. We must conclude that there was an abuse of discretion, and that the People's motion should have been denied. Given our conclusion, we need not address appellant's additional complaints.
DISPOSITION
The order appealed from is reversed. The superior court is directed to vacate its order requiring appellant to register as a sex offender under section 290.006 and to enter a new order relieving appellant of any sex offender registration requirement.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P. J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.