Filed 6/23/26 P. v. Marks CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089829
Plaintiff and Respondent,
(Super. Ct. Nos. 1467562 & 225976)
v.
STEVEN LEE MARKS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, David A. Lowe and
Cameron M. Goodman, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Harrell, J.
Appellant Steven Lee Marks appeals the denial of his petition to terminate his duty
to register as a sex offender. Appellant argues that the trial court abused its discretion
when it denied his petition and that this court should reverse the trial court’s order. The
People disagree and ask that we affirm the trial court’s order. The trial court erred by
shifting the burden of proof from the People to appellant. We therefore reverse the order
denying the petition and remand to the trial court to conduct a new hearing on the
petition.
PROCEDURAL SUMMARY
On August 25, 1987, the Stanislaus County District Attorney charged appellant in
a five-count information. The information alleged that appellant participated in an act of
sodomy with John Doe 1, a male child under the age of 14 years and more than 10 years
younger than appellant (Pen. Code, § 286, subd. (c);1 count 1); participated in an act of
oral copulation of John Doe 1, a person under the age of 16 years (former § 288a,2
subd. (b)(2); count 2); committed a lewd and lascivious act upon John Doe 1, a person
under the age of 14 years (§ 288, subd. (a); count 3); participated in an act of oral
copulation of John Doe 2, a person under the age of 16 years (former § 288a,
subd. (b)(2); count 4); and participated in an act of oral copulation with John Doe 2, a
person under the age of 16 years (former § 288a, subd. (b)(2); count 5).
On December 3, 1987, appellant pleaded no contest to count 1 and in count 4 to
the lesser, related misdemeanor solicitation to engage or engaging in lewd or dissolute
conduct in public (§ 647, subd. (a)). The district attorney dismissed counts 2, 3, and 5.
1 All undesignated statutory references are to the Penal Code unless otherwise
indicated.
2 Section 288a was renumbered as section 287 by section 49 of Senate Bill
No. 1494 (2017–2018 Reg. Sess.), effective January 1, 2019. (Stats. 2018, ch. 423, § 49.)
2.
On January 29, 1988, the superior court sentenced appellant to three years’
probation, ordered that he serve 300 days in local custody, register as a sex offender, and
imposed fines and fees.
On October 10, 2024, counsel for appellant filed a petition to terminate appellant’s
sex offender registration duty under section 290.5. The prosecutor objected, and
following briefing and a hearing, the trial court denied the petition.
DISCUSSION
Appellant argues that the trial court abused its discretion in denying the petition by
(1) giving “ ‘controlling weight to the ‘egregious’ nature of appellant’s offenses,’ ”
(2) making findings that were unsupported by substantial evidence, and (3) “impermissibly
shift[ing] the burden to appellant rather than requiring the prosecution to satisfy its
burden.” The People counter that the trial court did not abuse its discretion because
numerous factors relevant to the trial court’s determination supported appellant’s continued
duty to register.
A. Additional Background.
1. The underlying crimes.3
John Doe 1 was 13 years old when he testified in August 1987. He recalled
meeting appellant on a camping trip with his brother. After that, he saw appellant most
weekends and stayed over at appellant’s house a couple of times. On one occasion before
Christmas of 1985, appellant touched John Doe 1’s penis while he was sleeping next to
appellant in a bed. Another time, when staying at appellant’s house, John Doe 1 recalled
that appellant told him to sleep in the bed with him and then grabbed John Doe 1’s penis.
Appellant also put his penis inside of John Doe 1’s rectum and put his mouth on John
3 These facts are derived from police reports and the preliminary examination
transcript.
3.
Doe 1’s penis. John Doe 1 testified that appellant provided him with marijuana and
smoked it with him.
Appellant coached John Doe 2’s baseball team. On more than one occasion,
appellant placed his mouth on John Doe 2’s penis when John Doe 2 was 15 or 16 years
old.
2. The petition and the prosecutor’s opposition.
On October 10, 2024, counsel for appellant filed a petition requesting termination
of his obligation to register as a sex offender. The prosecutor objected and later filed a
written opposition, attaching five exhibits.
Exhibit 1 included police reports detailing the abuse underlying the registrable
offenses.
Exhibit 2 was a transcript of the preliminary examination for the registrable
offenses and a declaration from appellant. The probation officer’s report, exhibit 3,
summarized the probation officer’s interview with appellant in which appellant admitted
to engaging in an act of sodomy and oral copulation. Appellant said that he “ ‘loved’ ”
the victims and that he was a father figure to them. Appellant said that he was very
concerned for the victims and still cared about them. Appellant said that “it was a very
bad thing that happened and that he need[ed] to understand what happened to him and
why it happened.” He also said that he was going to go to counseling. The probation
officer’s report contained the recommendation that state prison was not the most
appropriate commitment given appellant’s insight into his need for counseling and
concern for the children. The probation officer recommended that a psychologist or
psychiatrist evaluate appellant to determine the extent of his sexual problems and whether
he would be dangerous in the community. If the resulting report was favorable, the
probation officer recommended appellant “be released into the community [following] a
4.
medium to lengthy period of incarceration.” Counseling and restrictions on contact with
minors were recommended as terms of probation.
A psychologist evaluated appellant in January 1988. The resulting report—exhibit
5 to the prosecutor’s opposition—noted that appellant had limited insight into his
motivations to commit the molestations of the victims and that he believed the victims
were also responsible for what happened to them. At one point in the examination, it
appeared to the psychologist that appellant was trying to convince him that appellant had
committed the assaults in a twilight state between sleep and wakefulness and that
appellant was not fully responsible for what he did. Appellant also denied that he anally
penetrated either of the victims and suggested that they had been encouraged to
exaggerate the seriousness of the criminal acts. Appellant saw himself as a “benefactor”
of the victims, though he admitted to molesting them. The psychologist concluded that
appellant was “not seen as an active danger to the children of the community at large.
His presence in a home where minor children are living is viewed with some degree of
concern but it may be that [appellant] has established an adequate relationship with the
boys[’] mother and that they are in no danger from him. My general impression is that
his sexual acting out with the boys represented ‘targets of opportunity’ rather than an
exclusive sexual orientation toward young boys although this brief examination is not
sufficient to make a firm judgement in this matter.”
Exhibit 4 included police reports dated September 30, 1992, and November 17,
2011. The 1992 report summarized the execution of a search warrant at appellant’s
apartment following a report that he had sodomized his stepson. Police searched for
pornographic materials and evidence of sexual activities or fantasies involving young
boys. Appellant arrived while police were conducting the search and was arrested. He
denied the allegations but admitted to a past conviction for sodomy of a child under the
age of 16. Police collected photographs of the apartment and appellant’s bedding. While
the exhibit itself contained only police reports, the prosecutor acknowledged in her brief
5.
that no conviction resulted from the incident because “the victim, who came to court
together with his mother and [appellant] … refused to testify.”
The November 2011 police report was prompted by a complaint that two children,
aged seven and 11, were living with appellant. Appellant denied sexual contact or
showing pornographic material to the children. The children made no disclosures and
expressed no concern about living with appellant. The officer found the complaint
unfounded.
In the prosecutor’s written opposition to the petition, she argued that community
safety would be enhanced by continued registration, emphasizing the nature of the
underlying conviction, the young age of the victims, appellant’s position of authority over
them, and his alleged postconviction behavior.4 Appellant’s counsel argued that the
prosecutor failed to prove that community safety would be significantly enhanced by his
continued duty to register as a sex offender.
3. The hearing on the petition and the court’s order denying the petition.
On May 6, 2025, the trial court held a hearing on appellant’s petition to terminate
sex offender registration. Appellant’s counsel emphasized that the prosecutor bore the
burden of establishing that appellant was currently a risk and that community safety
would be enhanced by continued registration. Counsel noted that the evidence submitted
by the prosecutor was over 30 years old, and appellant had no convictions in 24 years.
Counsel also represented that appellant completed counseling as a condition of probation,
4 In addition to exhibit 4, the prosecutor also stated in her opposition that [appellant]
was convicted of petty theft in May 1996, arrested in January 1998 for attempted murder
and later convicted for assault with a deadly weapon, sentenced to 365 days in jail and
three years of formal probation, arrested in September 1998 for failure to register as a sex
offender, and arrested in November 2001 for furnishing marijuana to a minor, though this
case was “rejected for lack of sufficient evidence.” The record on appeal does not
include police records or court records supporting these statements. Unsworn statements
of attorneys are not evidence. (People v. Wallace (2004) 33 Cal.4th 738, 754, fn. 3;
People v. Saelee (2018) 28 Cal.App.5th 744, 755.)
6.
including individual and group sessions once per week and family counseling. The court
noted that there was no evidence presented of such counseling.
Appellant’s counsel argued that the psychologist’s 1988 report found that
appellant was “not seen as an active danger to children or the community at large,” and
argued that “if he wasn’t a danger in 1988, how much less so is it today, this many years
after the conviction?” Appellant’s counsel also contended that the trial court could not
rely solely on the egregiousness of the underlying offenses to find that the prosecutor had
satisfied their burden.
The prosecutor argued that appellant denied to the psychologist who examined
him that appellant had sodomized one of the victims and minimized his admitted abuse.
The prosecutor highlighted the allegations that appellant was arrested for attempted
murder, sexually assaulted his stepson, failed to register as a sex offender, and furnished
marijuana to a minor. The prosecutor argued that furnishing marijuana to a minor was
especially relevant given that appellant had furnished marijuana to the victims of his
registrable offenses. The prosecutor also emphasized the seriousness of the original
offenses, the vulnerability of the victims, and the fact that appellant showed no remorse.
Upon submission of the matter for decision, the trial court denied the petition,
explaining her ruling as follows:
“THE COURT: Well, the Court is denying the request for
termination of sex offender registration. The Court finds the People have
satisfied their burden to establish that community safety would be
significantly enhanced by its denial. The Court, first of all, would say that
the passage of time does not by itself just eliminate abhorrent conduct; it
doesn’t. The passage of time does not change people. It does not change
their attraction to children simply because of the passage of time. The
Court has received no evidence that [appellant] is somehow less risky. In
as much I have seen no evidence of remorse. I’ve seen no insight that is
gained by any of the counseling that he has received. I have received no
information that he feels differently about the children in the community or
that he feels badly about what he did. The criminality in this case is not
represented by the conviction itself. The criminality is far worse than the
7.
conviction that the [appellant] suffered. That makes the risk to the
community heightened.
“In analyzing the factors that I’m required to analyze, the
[appellant]victimized, at least, three young boys ranging in age from 8 to
11. He -- one of them was his stepchild. It appears that it’s very likely that
the relationship he had with that child’s mother was only to have access to
this child. He used positions of trust and authority to repeatedly -- and not
one time. Repeatedly sexually abused multiple victims, all from the age of
8 through 11. The fact that there was child pornography is not a positive
factor for [appellant]. It’s a negative factor for [appellant]. It makes this
Court know that his risk to the community are far greater than what the
criminality itself represents.
“That doesn’t even talk about the criminal history since the
conviction, which the Court doesn’t find insignificant. The [appellant], on
May of 1996, was convicted of a petty-theft offense. [O]n September 25th
of 1992, there was an additional arrest, which had to be dismissed because
of the situation that [the prosecutor] described. January 15th of 1998, the
[appellant] was arrested for attempted murder. He was convicted on
December 23rd of 1998 with an assault with a deadly weapon; sentenced to
a whole year in jail and placed on three years of formal supervised
probation. He failed to register in September of 1998. That all, of course,
establishes, in this Court’s view, that the [appellant]has a lack of insight as
to the danger that he presented and is not willing to abide by laws unless
he’s forced to do so. November 3rd, 2001, the [appellant]was arrested for -
- and this is -- I cannot not consider this -- furnishing marijuana to a minor.
When furnishing marijuana to a minor was an underlying theme of the
assaults to begin with.
“Now, I know there’s not a conviction, but I would be very, very,
very concerned to have [appellant] in the community without him having to
be registered as a [section] 290 offender. That registration requirement will
remain because the People have established their burden to prove that the
community safety would be significantly enhanced by its denial. The
[appellant]can [reapply] in five years.”
B. Applicable Law and Legal Analysis.
1. Applicable law.
Before 2021, if an offender was required to register as a sex offender, they were
required to register for life. (People v. Franco (2024) 99 Cal.App.5th 184, 190.)
8.
Beginning on January 1, 2021, Senate Bill No. 384 (2017–2018 Reg. Sess.) (Stats. 2017,
ch. 541, § 2.5, pp. 4078–4079; see § 290, subd. (d)) restructured the sex offender
registration requirement into three tiers: tier one, registrants must register for at least
10 years; tier two, for at least 20 years; and tier three, for their lifetimes. (People v. Thai
(2023) 90 Cal.App.5th 427, 432.)
Appellant is a tier two registrant who is required to register for at least 20 years.
(§ 290, subd. (d)(2)(A); see § 290.5, subds. (a), (b).) Provided they meet certain criteria,
including registering for the required minimum period, a registrant can petition the
superior court to terminate their registration requirement. (§ 290.5, subds. (a)–(c).)
Upon receiving notice of a petition to terminate registration, the district attorney
may object and present evidence demonstrating that community safety would be
significantly enhanced by continued registration. (§ 290.5, subd. (a)(2)–(3).) The
prosecutor has the burden of producing evidence to establish “terminating the registration
requirement [would] considerably raise[] the threat to society because [appellant is]
currently likely to reoffend.” (People v. Thai, supra, 90 Cal.App.5th at p. 433.) Put
another way, “[t]he trial court’s task is to assess whether the People have carried their
burden of ‘produc[ing] evidence establishing that requiring continued registration
appreciably increase[s] society’s safety.’ ” (People v. Franco, supra, 99 Cal.App.5th at
p. 192.)
In making this determination, the trial court may consider the following seven
factors:
“[(1)] the nature and facts of the registerable offense; [(2)] the age
and number of victims; [(3)] whether any victim was a stranger at the time
of the offense (known to the offender for less than 24 hours); [(4)] criminal
and relevant noncriminal behavior before and after conviction for the
registerable offense; [(5)] the time period during which the person has not
reoffended; [(6)] successful completion, if any, of a Sex Offender
Management Board-certified sex offender treatment program; and [(7)] the
person’s current risk of sexual or violent reoffense, including the person’s
9.
risk levels on SARATSO static, dynamic, and violence risk assessment
instruments, if available.” (§ 290.5, subd. (a)(3).)
The trial court may base its determination “upon declarations, affidavits, police reports,
or any other evidence submitted by the parties which is reliable, material, and relevant.”
(Ibid.)
The standard of review applied by an appellate court reviewing a trial court’s
order on a petition for termination is abuse of discretion. (People v. Thai, supra,
90 Cal.App.5th at p. 433.) The appellate court in People v. Thai described the showing
required to establish an abuse of discretion as follows:
“To establish an abuse of discretion, [appellant] must demonstrate
the trial court’s decision fell outside the bounds of reason, i.e., was
arbitrary, capricious, or patently absurd. [Citation.] [¶] ‘The abuse of
discretion standard is not a unified standard; the deference it calls for varies
according to the aspect of a trial court’s ruling under review. The trial
court’s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to
the facts is reversible only if arbitrary and capricious.’ [Citation.] A trial
court abuses its discretion when its factual findings are not supported by the
evidence, or its decision is based on an incorrect legal standard.” (Ibid.)
2. Legal Analysis.
Appellant argues that the trial court abused its discretion by “[giving] controlling
weight to the ‘egregious’ nature of [appellant]’s offenses”, making factual findings not
based on substantial evidence, and impermissibly shifting the prosecutor’s burden to
appellant. We find merit in the last of these arguments and reverse and remand for a new
hearing on that basis.
A. The Trial Court Impermissibly Shifted the Prosecutor’s Burden
to Appellant.
Appellant argues that the trial court impermissibly shifted the burden to him rather
than requiring the prosecutor to prove he posed a current risk to the community. He
points to the trial court’s statements that it had (1) “received no evidence that [appellant]
is somehow less risky”; (2) that there was no evidence that appellant had gained insight
10.
from the counseling he received; and (3) that there was no evidence that appellant felt
differently about children.
Section 290.5 required the prosecutor to prove that appellant was currently likely
to reoffend and that community safety would be significantly enhanced by continued
registration. (§ 290.5, subd. (a)(2)–(3); People v. Thai, supra, 90 Cal.App.5th at p. 432–
433; People v. Franco, supra, 99 Cal.App.5th at p. 192.) Here, the trial court denied the
petition, at least in part, due to the absence of evidence that appellant no longer posed the
threat he did when he committed the registrable offenses. Doing so placed the burden on
appellant, rather than on the prosecutor, to produce evidence of the current threat, if any,
posed by appellant. This was error. (Thai, at p. 433 [applying incorrect legal standard is
abuse of discretion].)
This error was not harmless. Under the governing standard, the question is
whether there is a reasonable probability the trial court would have granted the petition
absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude there is.
The only evidence of subsequent criminal behavior on the part of appellant before the
court were the 1992 and 2011 incidents, the latter of which was found to be unfounded by
the investigating officer. The other criminal activity alleged by the prosecutor was not
proved by police reports, declarations, or testimony. Had the court analyzed the evidence
under the correct legal standard—with the burden on the prosecutor—it is reasonably
likely that it would have granted the petition. Therefore, we must reverse the court’s
order denying the petition and remand for a new hearing using the correct legal standard.5
5 As we are reversing and remanding for a new hearing, we do not reach appellant’s
arguments that the trial court made factual findings not supported by substantial
evidence, or that the trial court gave “controlling weight” to the to the gravity of the
registrable offenses. However, we reiterate that statements made by an attorney are not
evidence. (People v. Wallace, supra, 33 Cal.4th at p. 754, fn. 3; People v. Saelee, supra,
28 Cal.App.5th at p. 755.) The trial court’s determination must be based “upon
declarations, affidavits, police reports, or any other evidence submitted by the parties
which is reliable, material, and relevant.” (§ 290.5, subd. (a)(3).)
11.
On remand, because the trial court will conduct a new hearing, the parties may
submit new evidence, lodge objections to any evidence, and present new arguments. We
express no opinion regarding the proper resolution of the petition.
DISPOSITION
The order denying the petition is reversed and the matter is remanded to the trial
court for a rehearing on the petition. Ahead of the rehearing, the parties may submit new
evidence, lodge objections to any evidence, and present new arguments.
12.