Fear Not Law Articles: P. v. Marshall CA4/2

Filed 9/21/26 P. v. Marshall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E087506

v. (Super.Ct.No. CVSW2500464)

WINSTON TERRELL MARSHALL, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Jeffrey M. Zimel, Judge.

Affirmed.

Winston Terrell Marshall, in pro. per.; and Richard Jay Moller, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Winston Terrell Marshall filed a petition to terminate his

sex offender registration pursuant to Penal Code1 section 290.5, which the court

1 All further statutory references are to the Penal Code.

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summarily denied. After defendant filed a notice of appeal, this court appointed counsel

to represent him.

Counsel filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th

216 (Delgadillo), setting forth a statement of the case, requesting that we independently

review the record for error, and identifying two potentially arguable issues: (1) whether

the court abused its discretion in denying defendant’s petition without holding a hearing;

and (2) whether the police department’s error in stating that defendant had been

convicted of one count of oral copulation with a minor under the age of 14 had any effect

on the court’s ruling.

We offered defendant the opportunity to file a personal supplemental brief, which

he has done.2 Defendant effectively contends the court erred in denying his petition. He

requests that we terminate his registration requirement or order a reduction in his

registrant status to Tier 2. We affirm.

I. PROCEDURAL BACKGROUND

On June 17, 1994, a jury convicted defendant of two counts of forcible oral

copulation (former § 288a, subd. (c)(2), counts 1 & 4), forcible rape (former § 261,

subd. (a)(2), count 2), and grand theft from the person of another (§ 487, subd. (c)).

2 Defendant initially failed to timely file his supplemental brief; therefore, we
dismissed the appeal. However, defendant subsequently filed a motion to vacate the
dismissal, reinstate the appeal, and file the supplemental brief he attached to his motion.
We granted the motion. “If the defendant . . . files a supplemental brief or letter, the
Court of Appeal is required to evaluate the specific arguments presented in that brief and
to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)

2
At sentencing in August 1994, the court noted, “The matter of sentencing, which

might have been more difficult at the outset, has been made much easier for me based

upon the conduct of the defendant himself in lying and suborning perjury in an effort to

extricate himself in the difficulties he has placed himself in.” “[I]n each case I am going

to sentence him to the high term of eight years because of the violence—great violence

involved and because he constitutes a serious danger to society.” The court determined

to run the two counts of oral copulation consecutively, “because we have separate victims

in this case and because the defendant was on parole when these crimes were committed

and his prior performance on parole was unsatisfactory.”3

The court sentenced defendant to 16 years of imprisonment. Defendant was

subject to a requirement that he register as a Tier 3 sex offender for life. According to

defendant, he was released from custody on August 6, 2002, and completed parole on

August 6, 2006,4 and has continuously registered for over 20 years without a single

violation or subsequent criminal conviction.

On May 16, 2025, defendant filed a form petition to terminate his sex offender

registration pursuant to section 290.5. Defendant checked a box indicating he was a Tier

2 registrant and had registered for at least 20 years.5 A petition checklist prepared by the

3 The sentencing court’s statements come from a partial, uncertified reporter’s
transcript attached to defendant’s supplemental brief.

4 There are no documents in the record supporting defendant’s assertions of his
dates of release and completion of parole other than his statements themselves.

5 In his brief, defendant appears to concede that he is, in fact, a Tier 3 registrant.

3
Hemet Police Department on May 27, 2025, reflects that defendant was a lifetime, Tier 3

registrant who had no pending charges; was not on parole, probation, or supervised

release; and was not in custody. It indicates that defendant’s commission of the oral

copulation offenses were either committed against a person under the age of 14 or by

force or fear.6 The checklist further reflects that defendant had no verified violations for

failing to register and no subsequent misdemeanor or felony convictions.

On November 21, 2025, the People filed a form response to defendant’s petition

indicating that defendant was a lifetime, Tier 3 registrant. The People checked the boxes

requesting that the petition be summarily denied because defendant “does not qualify for

termination because petitioner is in Tier 3 as a lifetime registrant and does not fall under

the risk-level exception.”

By form order on December 2, 2025, without holding a hearing, the court checked

the boxes summarily denying defendant’s petition because he did “not qualify for

termination because petitioner is in Tier 3 as a lifetime registrant and does not fall under

the risk-level exception.”

6 Thus, the police department did not indicate that defendant had been convicted
of oral copulation of a minor; however, the statement of his offense in the disjunctive
would have made it unclear of what the jury convicted defendant. The abstract of
judgment, of which we took judicial notice upon counsel’s motion, clarifies that the jury
convicted defendant of forcible oral copulation, not oral copulation upon a minor.

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II. DISCUSSION

Defendant effectively contends the court erred in denying his petition. He

requests that we terminate his registration requirement or order a reduction in his

registrant status to Tier 2. We affirm.

“California law requires persons convicted of certain sex crimes or those whose

offenses are sexually motivated to register with California’s sex offender registry.

[Citations.] Due to a perceived propensity for recidivism, sex offenders are viewed as

posing a ‘“‘“continuing threat to society.”’”’ [Citation.] The ‘overriding purpose’ of sex

offender management is to mitigate that threat, thereby ‘enhanc[ing] community safety

by preventing future sexual victimization.’ [Citation.] Requiring sex offenders to

surveillance. [Citation.]” (People v. Franco (2024) 99 Cal.App.5th 184, 190 (Franco).)

“[O]ur Legislature amended the sex offender registration statutes in 2017 to create

a three-tiered system, with offenders in each tier presumptively obligated to register for

different periods of time depending on the degree of risk they pose to the community

[citation].” (Franco, supra, 99 Cal.App.5th at p. 191.) “Tier 3 is for sex offenders

posing the greatest risk of recidivism. They are required to register for life [citation],

although there are exceptions under certain circumstances [citation].” (Ibid.) “Placement

into Tier 3 generally turns on the crime of which the defendant ‘was convicted,’ but can

also turn on the defendant’s ‘risk level on the static risk assessment instrument for sex

offenders (SARATSO),’ on his recidivism, or on prior commitment to a state mental

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hospital as a sexually violent predator. [Citation.]” (Ibid; accord, People v. Hamilton

(2025) 108 Cal.App.5th 423, 432.)

“A person required to register as a tier three offender based solely on the person’s

risk level, . . . may petition the court for termination from the registry after 20 years from

release from custody on the registerable offense, if the person . . . has not been convicted

of a new offense requiring sex offender registration . . . and . . . has registered for 20

years . . . .” (§ 290.5, subd. (b)(3).) “The court shall determine whether community

safety would be significantly enhanced by requiring continued registration . . . .” (Ibid.)

“We evaluate a trial court’s decision whether to grant or deny a petition for

removal from the sex offender registry for an abuse of discretion, reviewing any

subsidiary factual findings based on disputed facts for substantial evidence and any

subsidiary legal findings—including questions of statutory construction—de novo.

[Citations.]” (Franco, supra, 99 Cal.App.5th at pp. 192-193.)

“Of course, ‘the defendant . . . bears the burden to provide a record on appeal

which affirmatively shows that there was error below, and any uncertainty in the record

must be resolved against the defendant.’ [Citation.]” (People v. Moore (2021) 68

Cal.App.5th 856, 866 [“Because appellant has failed to provide an adequate record for

review, his claim fails. [Citation.]”].)

First, it is not at all clear from the record for what reason the court designated

defendant a Tier 3 registrant. Defendant points out that the “court did not pronounce a

lifetime registration requirement at sentencing.” Although true, he fails to include in the

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record a copy of the order requiring him to register as a sex offender and designating him

as a Tier 3 registrant.

Defendant effectually contends he was designated a Tier 3 registrant “based solely

on a risk assessment level rather than a qualifying lifetime offense . . . .” However,

without a copy of the order so designating him, we cannot know for sure. Nothing in the

record reflects that his Tier 3 registrant requirement was based on a risk assessment.

Indeed, a court could have based defendant’s Tier 3 status on his recidivism or

prior commitment to a state mental hospital as a sexually violent predator, which would

make him per se ineligible for the relief he requests.7 (§ 290.5, subd. (b)(3) [Only a

person required to register as a tier 3 offender based on his risk level may petition the

court for termination from the registration requirement].) Thus, defendant has failed his

burden of producing a record that shows error. Therefore, the issue must be resolved

against him.

Second, it appears a court designated defendant a Tier 3 registrant based on the

offenses for which the jury convicted him. Here, the jury convicted defendant of two

counts of oral copulation by force under former section 288a. Pursuant to section 290,

subdivision (d)(3)(P), all persons so convicted must be designated Tier 3 registrants

subject to lifetime registration. Thus. defendant would be per se ineligible for the relief

requested. (§ 290.5, subd. (b)(3) [Only a person required to register as a tier 3 offender

7 According to the portion of the sentencing transcript defendant attached to his
supplemental brief, defendant not only had a prior record but was on parole when he
committed the instant crimes “and his prior performance on parole was unsatisfactory.”

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based on his risk level may petition the court for termination from the registration

requirement].)

III. DISPOSITION

The court’s order summarily denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.

We concur:

RAPHAEL
J.

LEE
J.

Description	Defendant and appellant Winston Terrell Marshall filed a petition to terminate his sex offender registration pursuant to Penal Code1 section 290.5, which the court 1 All further statutory references are to the Penal Code.
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