P. v. Martin

Filed 3/5/08 P. v. Martin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

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In June 2003 defendant Robert Norman Martin pleaded guilty to two counts of oral copulation with a person under the age of 18. (Pen. Code,  288a, subd. (b)(1); all further statutory references are to this code.) He was ordered to register as a sex offender and placed on probation. He claims the court abused its discretion in requiring lifetime registration as a sex offender under former section 290, subdivision (a)(2)(E) (now  290.006). We disagree and affirm.

FACTS

At the outset we note the inadequacies of both parties briefs in setting out the facts. Defendant merely gives us one sentence, directing us to the facts set out in the guilty plea, thus violating California Rules of Court, rule 8.204(a)(2)(C) [opening brief must include summary of the significant facts]. Discussion of facts in the argument portion is not sufficient. Respondents brief contains a statement of facts underlying the crime but provides only one, incomplete record reference at the end of the statement, contrary to rule 8.204(a)(1)(C) [brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears]. Although we may strike the briefs or order them to be corrected, in this instance we proceed on the merits. (California Rules of Court, rule 8.204(e)(2).)

The facts are taken from the preplea report, of which the trial court took judicial notice. The victim, a 16-year-old male, reported that defendant had orally copulated him twice. Defendant, blind from birth, had been a friend of the victims father, also blind, for many years. For about a year prior to the events, defendant had gone to dinner with the victims family once a month or so. The victim sometimes assisted defendant to the bathroom at restaurants.

The victim stated that while in the bathroom, defendant sometimes talked to him about homosexual encounters, including some explicit details about having sex with a boy, and made sexually provocative comments. During the first encounter in the bathroom at defendants home, defendant talked about oral sex. When the victim asked if he would do it again, defendant stated, Oh yeah, oh yeah. Can I? The two oral copulations each lasted only about a minute; this was the extent of the sexual acts.

When the victims father learned of the events, his original inclination was to cut off all contact with defendant. But the victim reported defendant had told him about a prior similar event where defendant had sexual contact with the minor son of another family with whom he was friends, the father called the police, so they could try to prevent this from happening to another minor.

When police interviewed defendant, he admitted two acts of mutual oral copulation, giving essentially the same explanation of the events as the victim, except he said the victim was the aggressor and had initiated the two encounters. He also told police of a prior homosexual incident with a 16-year old who had claimed he was 19. As to that event he stated, I couldve gotten myself into a lot of trouble, but luckily I got let off the hook.

Defendant told the probation officer he was five feet, five inches and weighed 115 pounds whereas the victim was over six feet and hefty. He also gave additional details of the two events. Both times the victim was masturbating and asked defendant to feel his penis; defendant kept telling him he was uncomfortable. He also said he thought the conduct would keep occurring because the victim kept asking him and he did not have the ability to say no. At that point defendant called the victims father to tell him of the incidents to stop it from happening again and because he wanted to preserve his friendship.

Defendants service coordinator at the Regional Center of Orange County described him as extremely gullible and always thinking about how to keep friends. The manager of community living services at Project Independence, who had known defendant for a year, stated defendants decisions are based on his desire to please everybody. His mother described him as too trusting and easily victimized. A family friend stated he was very easily influenced, unable to say no[,] very unsuspecting, and could be easily manipulated.

The psychologist who performed defendants mental and intellectual evaluation stated he had diffuse brain impairment and was in the bottom 12 percent of the population his age. She described him as emotionally vulnerable and very regressed, preadolescent, and having a childlike affect. She also reported that, because he is [w]ithout the use of adult logic and reasoning, he is not capable of adequate social functioning.

For his initial sentencing the court placed defendant on five years probation and ordered lifetime registration as a sex offender under section 290. Subsequently the California Supreme Court handed down People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). It held that mandatory lifetime registration as a sex offender under section 290 for a defendant convicted of felony oral copulation with a 16 year old was unconstitutional as a violation of equal protection because conviction of sexual intercourse with a 16 year old did not require mandatory registration. (Id. at pp. 1206-1207.) The Hofsheier court remanded the matter to the Court of Appeal to decide whether the defendant was subject to discretionary registration. (Id. at p. 1209.)

After Hofsheier was decided, defendant filed a motion to strike the order to register. At the time of the hearing, defendant had not violated probation. The court granted the motion and struck that portion of the sentence imposing lifetime registration previously entered under the mandatory scheme. Thereafter, using its discretion, the court reimposed the registration requirement.

DISCUSSION

The parties do not dispute that the registration requirement imposed while such registration was mandatory was properly stricken. The only issue is whether the court abused its discretion in imposing lifetime registration under former section 290, subdivision (a)(2)(E) (now  290.006). Pursuant to that section, the court may order lifetime registration if [it] 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 analyzing the statute, Hofsheier noted its purpose: to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citations.] In recent years, section 290 has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. [Citation.] (Hofsheier, supra, 37 Cal.4th at p. 1196.)

Hofsheier then directed that, to implement the requirements of section 290, subdivision (a)(2)(E), 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 the 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.)

Here the court engaged in the Hosheier analysis. It stated on the record that, based on the moving papers and the probation report, the offense was committed for sexual gratification or based on sexual compulsion. Two incidents, in conjunction with a similar past encounter, in addition to defendants comments to the victim prior to the first copulation are sufficient evidence to support this finding.

As to the reason lifetime registration was appropriate, the court drew on the policy underlying registration. It did not rely on defendants ready availability for police surveillance due to his physical condition. The court was not concerned defendant was going to be driving to some school and hanging outside of [it]. But it believed registration was necessary to protect the public. [B]ased on everything the court has read, . . . there is the potential for [defendant] to reoffend in this case. If . . . he were living next door to a 16-year-old boy, . . . there is . . . a fear that something like this could happen again, based on everything the court has read.

This is a difficult case and the record shows that defendant is not what might be classified as a typical sexual predator, despite the somewhat harsh words and tone used in the respondents brief. But the record, and the courts analysis, do support the decision to require lifetime registration.

Defendant focuses his argument almost exclusively on the policy of making him easily available for police surveillance, asserting that because of his physical and developmental disabilities, he can never function alone. He requires assistance from a variety of caregivers, and thus will never be unavailable to police surveillance, even without registration.

But the trial court specifically discounted this factor. Instead it relied on the potential for reoffending. Defendant fails to give other than minimal attention to this policy, to alert the public to the location of a sex offender, thereby allowing people to protect themselves and their children.

Based on the two incidents, defendants prior encounter with a minor that he admitted to the police, and his personality, it was not an abuse of discretion for the court to conclude that, if given the opportunity and right circumstances, defendant could engage in the same conduct, even assuming the victim here was the aggressor. Defendant acknowledges that his need to please people and have them like him interferes with his decision-making process. His lack of ability to reason, the absence of adult logic, and that he is easily manipulated are factors that would contribute to his engaging in the conduct, even if he were not the initiator or aggressor.

That defendant knew what he did was wrong and reported the events to the victims father may be a mitigating factor but it is only that. It does not override the other facts that support the courts decision. Likewise that registration will place[] an onerous burden on [defendant] restricting his ability to travel, that he will be subject to additional punishment for failing to comply, and that he is subject to shame and ignominy are not appropriate items to consider in analyzing whether lifetime registration is appropriate under section 290.

This is also true of the possibility that by registering defendant may be identifi[ed] . . . as a potential victim for true sexual predators. Finally, we reject defendants argument that he will be excluded from HUD housing because people subject to a requirement for lifetime sex offender registration are not eligible. (24 C.F.R. 960.204(a)(4) (2008) [mandatory prohibition against admitting persons subject to lifetime registration as sex offender to public housing].) While this is the case under current law, it is not enough to require reversal. It is an unfortunate consequence of defendants conviction.

Admittedly these are hardships, and perhaps more difficult given defendants physical and developmental condition, but they are not sufficient to show the court abused its discretion. (People v Scott (1994) 9 Cal.4th 331, 349 [court has broad discretion to determine sentences]; People v. Welch (1993) 5 Cal.4th 228, 234 [sentencing decision upheld unless arbitrary, capricious, or exceeding bounds of reason].)

DISPOSITION

The order is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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