Filed 7/7/26 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086030
v. (Super.Ct.No. 24AD29000078)
JOSE HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shannon L.
Faherty, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Daniel Rogers and Matthew
Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Jose Hernandez appeals the order of the San Bernardino
County Superior Court denying after hearing his Penal Code1 section 290.5 petition to
terminate his sex offender registration requirement. We will affirm.
BACKGROUND
1. Defendant’s Offense
Very little is known about the sexual offense committed by defendant other than
he was convicted in Los Angeles County in 1982 of committing a lewd or lascivious act
with a child under the age of 14 (§ 288, subd. (a)) and annoying or molesting a child
(§ 647, subd. (a)), often referred to herein as the 1982 judgment. He was sentenced to jail
for 13 days and placed on probation for 24 months.
2. The Relevant Sex Offender Registration Provisions
At the time of defendant’s 1982 judgment a person required to register as a sex
offender had to do so for life. (Stats. 1947, ch. 1124, § 1, p. 2562; People v. Franco
(2024) 99 Cal.App.5th 184, 190-191 (Franco).)
In 2017, the Legislature amended the sex offender registration statutes to create a
three-tiered registration system set forth in section 290, with sex offenders in each tier
presumptively obligated to register for different periods of time.2 (Franco, supra, 99
Cal.App.5th at p. 191.) After the expiration of the statutorily mandated registration
1 All further statutory references are to the Penal Code unless otherwise
designated.
2 A tier one offender is subject to registration for a minimum of 10 years; a tier
two offender is subject to registration for a minimum of 20 years; a tier three offender is
subject to registration for life. (§ 290, subd. (d)(1)-(d)(3).)
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period for tier one and two offenders, the duty to register does not expire automatically
but instead continues until the offender successfully petitions the superior court in the
county where the offender is registered to terminate the registration requirement.
(§§ 290, subd. (b), 290.5, subd. (a).)
Section 290.5 provides in relevant part that the trial court must grant a petition to
terminate registration if a tier one or tier two offender has met the statutory requirements
for termination and fulfilled the filing and service requirements set forth in the statute
unless the People request a hearing and establish that community safety would be
significantly enhanced by the petitioner’s continued registration. (§ 290.5, subd. (a)(1)-
(a)(3).) To meet that burden, the People must show that terminating the registration
requirement would considerably raise the threat to society because, at the time of the
petition, the offender was likely to commit another sex crime. (People v. Thai (2023) 90
Cal.App.5th 427, 433 (Thai).)
Subdivision (a)(3) of section 290.5 sets forth factors the trial court is required to
consider when deciding whether to order continued registration (the section 290.5
factors). Those are the (i) nature and facts of the registerable offense; (ii) the age and
number of victims; (iii) whether any victim was a stranger at the time of the offense
(known to the registrant for less than 24 hours); (iv) criminal and relevant noncriminal
behavior before and after conviction for the registerable offense; (v) the time period
during which the registrant has not reoffended; (vi) successful completion, if any, of a
Sex Offender Management Board-certified sex offender treatment program; and, (vii) the
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registrant’s current risk of sexual or violent reoffense, including the registrant’s risk
levels on SARATSO static, dynamic, and violence risk assessment instruments, if
available. (§ 290.5, subd. (a)(3).)
In making its decision, the trial court may rely on declarations, affidavits, police
reports, or any other evidence submitted by the parties which is reliable, material, and
relevant. (§ 290.5, subd. (a)(3); Franco, supra, 99 Cal.App.5th at p. 192.)
If the court denies the petition, it must state when the registrant can again petition
for termination of the registration requirement, which must be at least one year but no
more than five years from the date of the denial. (§ 290.5, subdivision (a)(4).)
3. The Denial of Defendant’s Section 290.5 Petition
The California Department of Justice designated defendant a tier two sex offender
with a requirement that he had to register for a minimum of 20 years following his
conviction and release from incarceration after serving his 13-day jail sentence.
In May 2024, defendant was living and registered as a sex offender in Ontario
California when he filed a section 290.5 petition in San Bernardino Superior Court to
terminate his sex offender registration requirement and submitted written arguments in
support of it. The People opposed the petition on the ground defendant posed an
unreasonable risk to public safety as evidenced by his numerous convictions for crimes
over many years with emphasis on his most recent convictions suffered in 2015 and 2016
for offenses relating to stalking his ex-girlfriend.
4
At the April 2025 hearing on defendant’s petition, the trial court reviewed the
section 290.5 factors. As to the nature and facts of the offense, it noted that defendant
was young (20 years old) “when the [section] 290 triggering conviction occurred.” The
offense involved one victim, a 13-year-old girl who was the sister of defendant’s
girlfriend whom defendant had known for months and had been determined not to be a
stranger victim though the trial court indicated that it was unknown whether the victim
was a stranger.
With respect to criminal behavior, the court pointed out that defendant had been
convicted of petty theft before his 1982 judgment and he had suffered multiple
convictions after that judgment.3 In addition to those convictions, the court noted
defendant had been arrested 18 times.
3 The convictions mentioned by the trial court include the following: (i) in 1989,
obstructing/resisting executive officer and obstructing/resisting a public officer (§§ 69,
148, subd. (a)(1)); (ii) in 1990, giving false information to a peace officer, giving false
identification to a peace officer, and disobeying a court order (Veh. Code, § 31; Pen.
Code, §§ 148.9, 166.4); (iii) in 1991, malicious mischief/vandalism (§ 594); (iv) in 1993,
petty theft and battery (§§ 488, 242); (v) in 1994, possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)); (vi) in 1995, assault with a deadly weapon
(§ 245, subd. (a)(1)); (vii) in 1996, battery; (viii) in 1996, criminal threats with intent to
terrorize (§ 422); (ix) in 1996, disobeying a court order (§ 166, subd. (a)(4)); (x) in 1996,
DUI (Veh. Code, § 23152, subd. (b)); (xi) in 1997, possession of controlled substance
(Health & Saf. Code, § 11350, subd. (a)); (xii) in 2001, criminal threats with intent to
terrorize (§ 422; (xiii) in 2001, disturbing the peace (§ 415, subd. (2)); (xiv) in 2003,
parole violation (§ 3056); (xv) in 2004, corporal injury to a spouse or cohabitant (§ 273.5,
subd. (a)); (xvi) in 2007, parole violation; (xvi) in 2010, disorderly conduct/drunk in
public (§ 647, subd. (f)); (xvii) in 2011, DUI/alcohol (Veh. Code, § 23152, subd. (b));
(xviii) in March 2017, felony stalking (§ 646.9, subd. (b)); (xix) in August 2017, stalking
with probation violation (§ 646.9, subd. (b)); (xx) in September 2017, probation
violation; and, (xxi) in 2019, probation violation.
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As to non-criminal behavior, the court observed that (i) GPS records obtained by
police with respect to an ex-girlfriend’s stalking complaint indicated defendant’s cell
phone and vehicle had been in an area during school hours where there was a preschool,
an elementary school, and a high school and, (ii) in the police report concerning the ex-
girlfriend’s stalking complaints was the ex-girlfriend’s comment that defendant would “in
the past” drive through school parking lots and approach young female students.
It was unknown whether defendant completed a sexual offender treatment
program but the court recognized that, in the 43-year period elapsing between
defendant’s 1982 judgment and the 2025 hearing on his 290.5 petition, defendant had not
been charged with or convicted of any sex crimes.
With respect to defendant’s calculated risk of reoffending, his “STATIC 99R” was
negative two, indicating a prediction that defendant was in the low risk range of sexual
recidivism.
Upon review of the factors and considering the arguments of the parties, the trial
court declined to terminate defendant’s registration requirement, finding that defendant’s
conduct after the 1982 judgment gave rise to serious concerns for the safety of the public
such that “community safety would be significantly enhanced by continuing registration.”
It also barred defendant from petitioning the court again for termination of the
requirement within the next five years.
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DISCUSSION
Defendant argues the trial court’s finding that community safety would be
significantly enhanced by denying his section 290.5 petition is not supported by
substantial evidence.
We review the trial court’s denial of a petition to terminate sex offender
registration for an abuse of discretion, reviewing the findings of facts for substantial
evidence, reviewing the conclusions of law de novo, and reversing only when the trial
court’s application of the law to the facts is arbitrary and capricious. (People v. Cardenas
(2025) 18 Cal.5th 797, 812; Thai, supra, 90 Cal.App.5th at p. 433.) A trial court abuses
its discretion when its factual findings are not supported by the evidence, its decision is
based on impermissible factors, or it is based on an incorrect legal standard. (People v.
Knoller (2007) 41 Cal.4th 139, 156; Roe v. Smith (2025) 116 Cal.App.5th 227, 236.)
The reason persons like defendant who have been convicted of certain sex crimes
are required by section 290 to register as a sex offender when living, working, or
attending school in California is because they are viewed as posing a continuing threat to
society on account of a perceived propensity for recidivism. (People v. Sorden (2005) 36
Cal.4th 65, 72-73 (Sorden.) The overriding purpose of sex offender management is to
mitigate that threat by ensuring that offenders are readily available for police
surveillance, thereby making communities safer by preventing future sexual
victimization. (§ 9000, subd. (d); Sorden, at p. 73.)
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Here, the trial court denied defendant’s section 290.5 petition based on
(i) defendant’s numerous convictions for criminal offenses after the 1982 judgment (see
fn. 2, ante) and many arrests that did not result in a conviction; (ii) his stalking of his ex-
girlfriend; (iii) “some evidence of ongoing, inappropriate contacts with children”; and
(iv) “uncharged violations” of the requirements section 290 and “continued potential
violation of his [section] 290 terms.” The court concluded:
“I am quite persuaded that the criminal history of the defendant as well as the very
concerning actions outlined in the stalking cases and his continued potential violation of
his [section] 290 terms, I have serious concerns for the safety of the public. I don’t
believe that he is who should get the benefit of [termination of his adult sex offender
registration requirement]. [¶] He has not led a crime-free life. His convictions within
the past ten years are based on terrifying behavior and have also had violations of
probation. There’s [sic] uncharged violations of the requirements of Penal Code
Section 290.”
Defendant argues, and we recognize, that he has not been accused or convicted of
any sexual offenses save and except the offense resulting in the 1982 judgment
committed 43 years earlier, his jail sentence for that offense was only 13 days, he
complied with the registration requirement for more than twice the 20 years required for a
tier two offender (§ 290, subd. (d)(2)), and his risk for sexual recidivism calculated in
December 2024 was very low (negative 2). Nor do we find support in the record for the
findings that defendant had “uncharged violations” of section 290 or that he exhibited
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“continued potential violation” of the terms of his section 290 registration requirement.
Even so, we do not agree with defendant that the trial court abused its discretion when it
denied his petition and ordered him to continue registering for five more years based
upon his criminal history and relevant non-criminal conduct.
That criminal history and conduct includes defendant’s persistent stalking of his
ex-girlfriend over an extended period time when she tried to break off her seven-year
dating relationship him. A September 2015 Chino police report recites the ex-girlfriend’s
complaint that defendant had sent approximately 300 messages or voicemails to her even
after she blocked his telephone number. She stated there were previous unreported
incidents of domestic violence that had resulted in broken bones, a black eye, and
included an attempt to drown her by shoving a garden hose down her throat.
The 2015 report also stated that defendant had parked on the opposite side of the
cul-de-sac where the ex-girlfriend lived, he had shown up uninvited at her job numerous
times, and left notes and flowers in her mailbox and inside of her locked vehicle. On
September 23, 2015, defendant was arrested for stalking in violation of section 646.9,
which resulted in a section 851.93 grant of arrest relief.
In January 2017, the ex-girlfriend contacted the Chino Police Department. to
complain defendant was stalking her and violating a criminal protective order issued in
May 2016 that prohibits him from coming within 100 yards of her and from having any
personal, electronic, telephonic, or written contact with her. Between December 17,
2016, and January 5, 2017, defendant left several messages on her phone that the police
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reported did not seem to be threatening but that defendant sounded emotional and upset.
The ex-girlfriend also reported seeing defendant drive down her street on January 4,
2017. Defendant admitted to police that he drove by the ex-girlfriend’s house in hopes of
seeing her.
In February 2017, the ex-girlfriend again contacted the Chino Police Department
to report two incidents that happened after she filed her police report in January. On
January 27, 2017, a suitcase containing some of the ex-girlfriend’s belongings that had
been in defendant’s possession and a note in defendant’s handwriting were left on her
front porch. On February 11, 2017, the ex-girlfriend went to visit a friend and, when they
left the friend’s house, the ex-girlfriend saw defendant sitting in his car in a nearby
parking lot. The ex-girlfriend believed defendant’s actions were becoming progressively
worse and said she was afraid for her safety and that of her family.
The ex-girlfriend’s telephone records confirmed defendant had called her
437 times between May 27, 2016, and February 10, 2017, calls he made after having
been served with the criminal protective order.
The police obtained a vehicle tracker search warrant and placed it on defendant’s
car on February 15, 2027. That device confirmed defendant had driven past the victim’s
cul-de-sac residence multiple times. While monitoring defendant, the police investigator
noticed defendant’s cell phone and vehicle had been in the area of a preschool, an
elementary school, and a high school between the hours of 11:00 a.m. and 1:00 p.m. The
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ex-girlfriend told police that, in the past, defendant would drive through school parking
lots and approach young female students.
When questioned by police, defendant initially denied he had driven near the ex-
girlfriend’s home or left messages on her telephone. After he was shown a copy of the
ex-girlfriend’s telephone records, he admitted he probably called her over 437 times. He
also admitted that he followed the ex-girlfriend’s nephew thinking the ex-girlfriend was
in the car, that he drove near her home over 28 times to see her house, and that he knew
the ex-girlfriend was scared of him because, when he contacted her brother to get
information about the her, the brother had told him she was afraid.
With respect to the information police obtained from defendant’s cell phone and
the tracking device placed on his car which established his presence near the schools
during hours when children would be present, defendant said he walked in that area for
exercise and would not elaborate or provide any further explanation for his being at those
locations.
Defendant argues the trial court erred when it bottomed its finding that continuing
his registration requirement would significantly enhance community safety on his being
near schools and on his stalking behavior because mere proximity to schools does not
signal predatory intent and stalking is not classified as a sexual offense.4
4 Subdivision (a) of section 646.9 provides that, “[a]ny person who willfully,
maliciously, and repeatedly follows or willfully and maliciously harasses another
person and who makes a credible threat with the intent to place that person in reasonable
fear for their safety, or the safety of their immediate family, is guilty of the crime of
stalking . . . .”
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Defendant’s argument does not take into account his persistent stalking behavior
over a long period of time while disregarding criminal protective orders and with the
knowledge that the ex-girlfriend was afraid of him, that he believed his ex-girlfriend still
loved him, that he sounded upset and emotional in his messages to her, and that he
harassed her family. In view of that behavior combined with defendant’s very long
criminal history that includes serious offenses, his presence near schools during hours
children are present, his refusal to discuss why he was there other than to say he walked
near schools for exercise, and his ex-girlfriend’s report that he used to approach young
female students in school parking lots, we cannot find on this record that the juvenile
court abused its discretion when it denied defendant’s petition.
DISPOSITION
The order denying defendant’s section 290.5 petition for termination from the sex
offender registry is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RAPHAEL
J.
LEE
J.
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