Filed 7/10/17 P. v. McNeely CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

RASHAD MCNEELY,

Defendant and Appellant.
D070751



(Super. Ct. No. SCE347541)

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Theodore M. Cropley and Kimberley A. Donohue, Deputy Attorneys General.
Rashad McNeely pleaded guilty to burglary (Pen. Code, § 459) and admitted allegations that the dwelling was inhabited (§ 460) and another person was present in it during the burglary (§ 667.5, subd. (c)(21)). The trial court sentenced McNeely to six years in state prison under his plea agreement. It also ordered McNeely to register as a sex offender under section 290.006.
McNeely's sole contention on appeal is that the court abused its discretion in ordering registration because his offense was not a result of sexual compulsion or for the purpose of sexual gratification, and the court did not consider all the relevant information in concluding registration was appropriate. We conclude the record contains sufficient evidence to support the trial court's reasons for requiring registration. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer's sentence report. On January 24, 2015, at approximately 5:00 a.m., McNeely broke into a home shared by two female roommates, C.H. and T.D., in La Mesa, California. When C.H. awoke, McNeely was standing at the foot of her bed. She asked him what he was doing there. McNeely then jumped on the bed and pinned her down with both arms. As C.H. screamed and kicked, McNeely covered her mouth to prevent her from screaming. C.H. was able to free her mouth and yell for help, prompting McNeely to release her and run out of the residence.
C.H.'s screaming woke T.D., who did not see anyone, but heard the front door open. T.D. also noticed that the bathroom window was open and saw a blanket on the ground outside the bathroom window. T.D. closed the window and called the police. C.H. and T.D. reported to police that a cell phone, a bottle of alcohol, and a kitchen knife were missing. A partially full bottle of alcohol was left on the counter.
Minutes after police left the residence, C.H. heard a noise from outside the bathroom window. C.H. saw McNeely walking away from the window carrying the bathroom window screen. He was wrapped in the same blanket T.D. had seen outside. T.D. again called police, who returned to the residence and apprehended McNeely nearby. Once in police custody, McNeely denied burglarizing the residence and restraining C.H. While in custody, McNeely began making suicidal threats, prompting jail officials to seek a mental evaluation. He was eventually "cleared" and booked into county jail.
In exchange for McNeely's guilty plea, the People dismissed counts of first degree burglary with the intent to commit rape or theft, assault with the intent to commit rape, and false imprisonment by violence, menace, fraud, and deceit. Before McNeely entered his plea, the trial court advised him that he faced possible lifetime sex offender registration.
At sentencing, the prosecutor argued for McNeely's registration as a sex offender: "He didn't take any of the electronics or valuables or purses that were in that living room area. He instead went into [C.H.]'s . . . room, took her cell phone from her room. And as he was walking around her room and she woke up, he jumped on top of her, held her down, restrained her, pinned her legs using his thighs. [¶] While the People acknowledge that at that point, there wasn't any touching or groping, [C.H.] was screaming and he kept his hand over her mouth while she screamed. He only left after she was able to push him off with her—with her knee because he had her pinned with both hands up again[st] the bed. At the time she did scream, he did run away at that point."
The prosecutor asserted that C.H. claimed in an interview she had seen McNeely, a transient, standing outside her bedroom window a month before the burglary. The prosecutor also argued that after T.D. called the police the second time, McNeely "came running at her and she felt at that point she might have been attacked and went running inside." Finally, the prosecutor stated McNeely was currently on probation for a false imprisonment conviction after he attacked his girlfriend in July 2014 following a fight regarding her refusal to have sex with him. McNeely apologized to his girlfriend and assaulted her after she would not accept his apology.
Defense counsel argued that McNeely's actions and past offenses did not demonstrate sexual behavior: "The phrase, 'sexual compulsion,' carries with it ramifications and conjures up images of behaviors that, not only aren't present in this case or in any of his past cases, but are not even implied by the conduct that is present in this case or in his present—in his past cases. [¶] Mr. McNeely is a fairly young man who has experienced auditory hallucinations for years. He has had multiple inpatient psychiatric hospitalizations. He hears the voice of the devil at times. When he was taken to Patton Hospital in this case . . . he was for quite some time heavily sedated. He mumbled. Most of what he said was inaudible. He laughed inappropriately when asked questions. Dr. Rice [phonetic] concluded that he had psychotic symptoms and was possibly over-sedated. [¶] . . . [H]e was held in Patton for several months , longer than many we see, and there's nothing in any of the documentation, once he's returned from Patton, that indicate anything about a sexual compulsion. The district attorney has presented no evidence to the court—psychiatric, psychological, factual or otherwise—that indicates a sexual compulsion. [¶] This is a man who definitely has a problem controlling his anger. This is a man who definitely has a problem with alcohol. And he has a mental health problem that will never be cured but can be treated. But never has he exhibited any sexual inappropriate behavior [sic], let alone a sexual attack."
In ordering McNeely to register as a sex offender, the court reasoned: "I can't think of a better way to say it except res ipsa loquitur, right? I mean, it's at night. There's a woman in bed by herself without a male around. The defendant is on top of her and he wasn't invited in. I think the act speaks for itself. [¶] As to compulsion, I can also find another avenue, and that's gratification. Here, the defendant had been involved in a prior sexual felony . . . in the past. The impetus of that, as the prosecutor correctly points out, was sex. [¶] Also the defendant had engaged in prior behavior in which he was near the residence and then returned afterwards, which I think is just astonishing."
DISCUSSION
I. General Legal Principles
Under section 290.006, the trial court may impose discretionary sex offender registration for any offense where mandatory registration is not required. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198.) The court has discretion to impose registration even for nonsexual offense convictions so long as the court finds the defendant's offense was a result of sexual compulsion or for sexual gratification and states its reasons for requiring registration. (Hofsheier, at p. 1198, citing People v. Olea (1997) 59 Cal.App.4th 1289 [burglary].) Section 290.006 "gives the trial court discretion to weigh the reasons for and against registration in each particular case." (Hofsheier, at p. 1197.)
In determining whether to impose discretionary registration, the trial court should consider "all relevant information available to it at the time it makes its decision." (People v. Garcia (2008) 161 Cal.App.4th 475, 483.) In addition, because section 290 was enacted to surveil sex offenders and prevent their recidivism, the court must consider whether the defendant is likely to reoffend. (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.) "[U]nder the discretionary registration statute, the required finding need only be found true by a preponderance of the evidence." (People v. Mosley (2015) 60 Cal.4th 1044, 1052, fn. 4.) A trial court also may abuse its discretion when the factual findings underlying its determination are not supported by substantial evidence. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The appellate court will uphold the trial court's discretionary ruling unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
II. Contentions
McNeely contends the trial court abused its discretion in requiring sex offender registration because it did not consider all the relevant information, and its "reasoning was faulty and incomplete." He argues: "As defense counsel noted, it must have been terribly frightening for [C.H.] to awaken with appellant in her bedroom and on top of her, with his hand over her mouth, '[b]ut he did nothing that resembles conduct of a sexual nature.' . . . The court failed to consider other available relevant evidence. [McNeely's] hospital records showed that he had manifested psychotic or delusional behavior. He had suffered for years from auditory hallucinations. After he was found incompetent to stand trial, he had remained at Patton State Hospital for over two months . . .—and, according to counsel, Patton records did not reference any behavior of a sexual nature. His behavior that night was bizarre—walking around wearing a blanket, returning after the police left, and taking the screen from a window and walking away. . . . [¶] Addressing the prior offense, the prosecutor noted that the attack occurred after his girlfriend refused to accept his apology—not after she refused to have sex with him." The People respond that the court did not abuse its discretion because it adequately articulated its reasoning for the registration requirement, which is supported by the evidence.
III. Application
We conclude contrary to McNeely's arguments, the trial court did not abuse its discretion in requiring registration. The court found, as required by section 290.006, that McNeely's burglary was a result of sexual compulsion or for the purpose of sexual gratification because the offense was committed while C.H. was vulnerable, alone, and asleep in her bed. Because the crime occurred in the early morning, it is reasonable to conclude that McNeely knew when he entered the house that anyone inside would be asleep or just waking. In this context, we may infer McNeely entered the residence, then jumped on top of C.H. and pinned her to the bed, for a sexual purpose. Moreover, when C.H. awoke to find McNeely entered the residence, then in her bedroom, he did not immediately leave. Rather, he exploited C.H.'s susceptibility by holding her down, and only got off of her after she freed her mouth to scream for help.
The trial court also appropriately relied on evidence concerning McNeely's past offense with his ex-girlfriend as it related to McNeely's likelihood to reoffend or commit similar offenses in the future. The trial court had discretion to weigh all the surrounding circumstances of McNeely's offense and all the relevant information, including evidence associated with the other charged counts and the fact that McNeely was near C.H.'s home before and after the burglary, thus evidencing a purpose for the burglary beyond theft. Because McNeely did not take valuable items from the residence, a court reasonably could conclude his entry into the home was due to sexual compulsion and an inability to control those impulses. As such, the record contains sufficient evidence for the court to reasonably order registration. (See Smith v. Smith (1969) 1 Cal.App.3d 952, 958 [" '[W]e can only interfere 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 did.' " (Italics added.)].)
We reject McNeely's contention that the trial court wrongfully imposed registration because it did not address McNeely's mental health history or his inpatient psychiatric hospitalizations. McNeely's counsel described his mental health history at sentencing, and the court had before it McNeely's probation report, which contained additional information about McNeely's mental health history. We therefore presume the court took McNeely's mental health history into account in its ruling.
In sum, McNeely has not shown that the order requiring registration as a sex offender is supported by insufficient evidence or otherwise constitutes a "manifest miscarriage of justice." (People v. Jordan, supra, 42 Cal.3d at p. 316.) We conclude there was no abuse of discretion requiring reversal.

DISPOSITION
The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.