Filed 1/24/14 P. v. Reynolds CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Butte)
THE PEOPLE,
Plaintiff and
Respondent,
v.
SPENCER DEAN
REYNOLDS,
Defendant and
Appellant.
C072985
(Super. Ct. No. CM035404)
Dean Reynolds entered a plea of no contest to foreign object penetration on a
victim under the age of 18 years (P
subd. (h); count five).
allegations (forcible rape, foreign object penetration by force or violence,
two counts of sexual battery, and personal use of a deadly weapon) were
dismissed with a waiver pursuant to
Harvey
defendant to state prison for the midterm of two years and ordered him to
register as a sex offender.
Defendant appeals. He contends the trial court stated inadequate
reasons for ordering him to register as a sex offender, specifically reasons
for requiring lifetime registration. He
also contends insufficient evidence supports the implied finding that he is
likely to reoffend.
The People respond that remand is
required for the trial court to state reasons for its exercise of discretion in ordering sex
offender registration. We agree that
remand is required.
FACTS
On May 10, 2011, the 20-year-old defendant met 16-year-old C.E. on the street in
Oroville. C.E. claimed she had run away
from home and led defendant to believe that she was 18 or 19 years of age. They visited defendant’s friend who loaned a sleeping
bag to them. While waiting for
defendant, C.E. consumed several shots of rum.
Defendant and C.E. went to Bedrock Park. C.E. claimed defendant
threatened her, grabbed her hand and had her rub his penis, digitally
penetrated her, had sexual intercourse with her without using a condom,
ejaculated in her, and sodomized her. She
claimed defendant had a folding knife which he had pointed at her stomach. She denied the acts were consensual. C.E. seemed developmentally delayed to the
investigating officer.
Defendant admitted that he kissed C.E.
on the neck and breasts and digitally penetrated her, and that she fondled his
penis. He claimed the acts were
consensual. He denied any other sexual
acts. He had a folding knife when an
officer spoke with him two days after the offenses.
DNA evidence
was consistent with oral contact by a male on C.E.’s neck. C.E. refused to allow vaginal and rectal
swabs to be taken. Tested for DNA, her
underwear did not reveal any evidence.
DISCUSSION
At sentencing, the trial court
ordered defendant to register as a sex offender, finding that defendant
committed the offense for the purposes of sexual gratification. Defendant contends, the People concede, and
we agree that the finding for
defendant argues insufficient evidence supports discretionary registration so
that the requirement should be stricken. We conclude that remand is required.
The probation
officer reported that a “Static 99†test was completed several days before
sentencing and that defendant tested at a moderate to
committing the current offense, defendant was caught at Bedrock Park with another female juvenile and he was carrying a knife.
At sentencing,
defense counsel requested that the court reduce the offense to a misdemeanor. Defense counsel also argued registration was
not warranted because defendant engaged in digital penetration with the victim
who defendant believed was 19 years of age. The prosecutor opposed reduction to a
misdemeanor and argued that registration was necessary. The prosecutor claimed defendant took
advantage of a 16‑year-old girl who was a stranger, had the mental
capacity of a 12 year old which should have been apparent to defendant when he
spoke with her, and had been given alcohol.
Defense counsel claimed the victim was not
disabled but may have had a schizoaffective disorder that led her to claim
rape.
The court
denied defendant’s request to reduce the offense to a misdemeanor. Although the court found persuasive the
sexual assault examiner’s opinion that her physical findings did not support
the victim’s claim of sexual intercourse, the court noted that defendant
admitted during his interview that he digitally penetrated the victim and had
other contact with the victim (he kissed her neck and breasts and let the
victim fondle his penis). In imposing
the midterm of two years, the court found in aggravation that the minor was a
runaway and was vulnerable due to her reduced mental health capacity, and in
mitigation that defendant was youthful with no prior record. In ordering defendant to register as a sex
offender, the court adopted the findings made previously and found that
defendant committed the offense for the purpose of sexual gratification.
Defendant’s
Static 99 score was discussed in connection with postrelease supervision.
defendant’s score was “moderate [to] high.â€
Defense counsel noted the Static 99 score but complained that he did not
know who had administered it. The court
did not make a finding for purposes of postrelease supervision as to whether
defendant posed a high risk as a sex offender.
For persons
convicted of specified offenses, sex offender registration is mandatory. (§ 290,
subd. (c).) For persons convicted of an
offense not specified in section 290,
subdivision (c), sex offender registration is discretionary with the trial
court (§ 290.006).
Even though s
for equal protection purposes to unlawful sexual intercourse which does not
require mandatory registration. (
v. Picklesimer (2010) 48 Cal.4th 330, 341-342; People v. Hofsheier
(2006) 37 Cal.4th 1185, 1195,
1198-1199, 1206-1207 (Hofsheier);
v. Ranscht (2009) 173 Cal.App.4th 1369, 1372, 1375.) Thus, registration for defendant’s offense is
required only if ordered at sentencing (§ 290.006).
In imposing discretionary
registration pursuant to 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. By requiring a separate statement of reasons
for requiring registration even if the trial court finds the offense was
committed as a result of sexual compulsion or for purposes of sexual
gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.†(H
We review a trial court’s order
imposing discretionary registration for abuse of discretion. “[A] trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.†(
v. Carmony (2004) 33 Cal.4th 367, 377.)
In ordering
defendant to register under section
290.006, the trial court made one of the required findings. While the court found that defendant
committed the offense for the purpose of sexual gratification, the court did
not state reasons for requiring lifetime registration as a sex offender. The court did not “weigh the reasons for and
against registration . . . .â€
(Hofsheier,
supra, 37 Cal.4th at p. 1197.) Without these articulated reasons, we cannot
determine whether the trial court properly exercised its discretion in ordering
defendant to register. (See
v. Bonnetta (2009) 46 Cal.4th 143, 151-152 [discussing purpose of
requirement of statement of reasons for ordering dismissal under §
We agree with
the People that remand is appropriate to permit the court to state reasons for
ordering lifetime registration for defendant. We reject defendant’s argument that the record
is devoid of facts that would provide reasons for registration. Although no details were given, the probation
report noted that on the Static 99, defendant tested at a moderate to high risk
of reoffending. The probation report
also noted that after the current offense, defendant was caught by the police
in the same park with another female juvenile.
Defendant was found in possession of a knife at the time.
“Since the
purpose of sex offender registration is to keep track of persons likely to
reoffend, one of the ‘reasons for requiring registration’ under s
likely to commit similar offenses – offenses like those listed in s
characterized generally as sexual offenses committed by means of force or
violence, violent offenses committed for sexual purposes, sexual offenses
committed against minors, or offenses that involve the sexual exploitation of
minors.†(Lewis v. Superior Court (2008)
169 Cal.App.4th 70, 78.)
While there is
some evidence in the record suggesting that defendant is likely to reoffend,
the record also reflects that defendant had no prior criminal record and was
youthful (20 years old at the time of the offense) and that the victim led
defendant to believe that she was 18 or 19 years of age. It is for the trial court, not this court, in
the first instance to consider the likelihood defendant will reoffend and, if
so, state reasons for requiring lifetime registration as a sex offender to
facilitate meaningful appellate review of whether the trial court abused its
discretion.
DISPOSITION
The trial court’s
order requiring defendant to register as a sex offender is set aside and the
matter is remanded to the trial court for the limited purpose of determining
whether to order defendant to register as a sex offender and to state all of
the required reasons. In all other
respects, the judgment is affirmed.
BLEASE ,
J.
We concur:
RAYE , P. J.
MURRAY , J.
name="_ftn1" title="">[1] U
name="_ftn2" title="">[2] Defendant also
entered a guilty plea to carrying a dirk or dagger, a misdemeanor (former §
remaining count (Health & Saf. Code,
§ 11357, subd. (b)) was dismissed with a
