Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. 37-3009-00093972- CU-WM-CTL, Jay M. Bloom, Judge.
HUFFMAN, Acting P. J.
Richard Osgood appeals the denial of his petition for writ of mandate to compel the California Attorney General (Attorney General) and the California Department of Justice (Department of Justice) to stop requiring him to register as a sex offender based on his convictions for a sexual offense in the state of New Mexico.
FACTS
In December 1989, Osgood pleaded guilty to two counts of criminal sexual penetration (CSP) in the third degree in Dona Ana County in the state of New Mexico. Judgment was entered on April 5, 1990. The trial court imposed a six-year prison sentence, suspended the sentence and placed Osgood on probation for five years. In 2009, the Attorney General and the Department of Justice required Osgood to register as a sex offender under Penal Code section 290, because of the New Mexico CSP convictions.
Statutory references are to the California Penal Code unless otherwise specified.
Osgood filed a petition for writ of mandate, seeking to compel the Attorney General and the Department of Justice to stop requiring him to register as a sex offender and to remove him from their sex offender tracking program. The trial court denied the petition.
DISCUSSION
I
Osgood contends that in adjudicating whether a person's conviction of a sex crime in another state triggers a requirement for him or her to register under California's "Sex Offender Registration Act" (§ 290, subd. (a)), the appropriate test is whether the least adjudicated elements of the out-of-state conviction satisfy all of the elements of a California crime that requires sex offender registration as set forth in section 290, subdivision (c). We agree.
Section 290 requires anyone convicted of certain sex offenses to register for life as a sex offender. The statute provides in relevant part:
"Every person described in subdivision (c), for the rest of his or her life while residing in California..., shall be required to register with the chief of police of the city in which he or she is residing... within five working days of coming into, or changing his or her residence... and shall be required to register thereafter in accordance with the [Sex Offender Registration] Act." (§ 290, subd. (b).)
Subdivision (c) of section 290 lists 37 Penal Code sections and subdivisions. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196 (Hofsheier).) Among the relevant crimes that carry a mandatory sex offender registration requirement are rape (§ 261, subds. (a)(1-4) & (6)), sodomy (§ 286), oral copulation (§ 288a), and sexual penetration by a foreign object (§ 289). (§ 290, subd. (c).)
" ' " 'The purpose of section 290 is 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.' " ' " (Hofsheier, supra, 37 Cal.4th at p. 1196.) "In recent years, section 290 registration 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. (See Stats. 1996, ch. 908, § 1, subd. (b), p. 5105.)" (Hofsheier, supra, at p. 1196.)
Sex offender registration is not considered a form of punishment under the state or federal Constitution. (In re Alva (2004) 33 Cal.4th 254, 268.) Nonetheless, registration as a sex offender imposes a " 'substantial' " and " 'onerous' " burden. (Hofsheier, supra, 37 Cal.4th at p. 1197.) Public knowledge of one's status as a registered sex offender may put the registrant at risk of losing his or her employment or make it difficult for him or her to find a place to live. (Ibid.)
Section 290.005 requires those convicted in another state of one of the enumerated sex crimes in section 290, subdivision (c) or an equivalent crime to register as a sex offender in California. (§ 290.005, subd. (a).) The statute also requires sex offender registration in California when the other state has required the defendant to register as a sex offender in that jurisdiction. (§ 290.005, subd. (b); see also § 290.005, subd. (c).)
Section 290.005 provides in relevant part: "The following persons shall register in accordance with the Act: [¶] (a) Any person who, since July 1, 1944, has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subdivision (c) of Section 290, including offenses in which the person was a principal, as defined in Section 31. [¶] (b) Any person ordered by any other court, including any state, federal, or military court, to register as a sex offender for any offense, if the court found 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. [¶] (c) Except as provided in subdivision (d), any person who would be required to register while residing in the state of conviction for a sex offense committed in that state. [¶] (d) Notwithstanding subdivision (c), a person convicted in another state of an offense similar to one of the following offenses who is required to register in the state of conviction shall not be required to register in California unless the out-of-state offense contains all of the elements of a registerable California offense described in subdivision (c) of Section 290: [¶] (1) Indecent exposure, pursuant to Section 314. [¶] (2) Unlawful sexual intercourse, pursuant to Section 261.5. [¶] (3) Incest, pursuant to Section 285. [¶] (4) Sodomy, pursuant to Section 286, or oral copulation, pursuant to Section 288a, provided that the offender notifies the Department of Justice that the sodomy or oral copulation conviction was for conduct between consenting adults, as described in Section 290.019, and the department is able, upon the exercise of reasonable diligence, to verify that fact. [¶] (5) Pimping, pursuant to Section 266h, or pandering, pursuant to Section 266i."
Recently, in a case of first impression, our colleagues in the Third District Court of Appeal held section 290.005 requires the least adjudicated elements test be applied to an out-of-state sex crime conviction, that is, whether the least adjudicated elements of the out-of-state crime satisfy all of the elements of a crime listed in section 290, subdivision (c). (In re Rodden (2010) 186 Cal.App.4th 24, 28, 34-36.) Furthermore, in determining whether an out-of-state sex crime conviction falls within California's mandatory registration law, a court cannot go beyond the elements test and consider evidence of the defendant's conduct underlying the out-of-state crime. (Id. at p. 32-33.)
The Court of Appeal recognized two exceptions to the prohibition against considering the underlying facts of the crime in determining whether an out-of-state sex crime conviction requires sex offender registration: (1) the prosecution is allowed to show that the court in the other state imposed a sex offender registration requirement at sentencing (see § 290.005, subd. (b)); and (2) the defense is allowed to avoid the California registration requirement by showing an out-of-state conviction for sodomy or oral copulation involve only " 'conduct between consenting adults' " (see § 290.005, subd. (d)(4)). (In re Rodden, supra, 186 Cal.App.4th at p. 36.) "These express exceptions allowing consideration of more than the least adjudicated elements of the offense make sense only if section 290.005 otherwise disallows the trier of fact from looking beyond the elements of the offense of conviction." (Ibid.)
We agree with the reasoning set forth in In re Rodden, supra, 186 Cal.App.4th 24, and adopt its holding. As noted by another court, "mandatory registration statutes themselves... are triggered by certain convictions or juvenile adjudications, and not by the underlying conduct of those offenses per se." (In re J.P. (2009) 170 Cal.App.4th 1292, 1299.)
In construing section 290.005, the Rodden court noted that subdivision (a) of the statute implicitly calls for a least adjudicated elements test to determine if a person with an out-of-state sex crime conviction must register in California and subdivision (d) of the statute explicitly requires such a test. (In re Rodden, supra, 186 Cal.App.4th at p. 35; see fn. 2, ante.) "If section 290.005 articulated more than one test for an out-of-state conviction, the untenable result would be that for foreign offenses of pimping, pandering, sodomy, and oral copulation, the trial court would be simultaneously allowed and disallowed from looking beyond the least adjudicated elements of the conviction. On questions of statutory interpretation,
' " 'it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences.' " ' [Citations omitted.] Accordingly, we hold that section 290.005 requires the least adjudicated elements of the out-of-state conviction to meet all of the statutory requirements of a registerable offense in California." (In re Rodden, supra, at pp. 35-36.)
The Rodden court also noted that its interpretation of section 290.005 is consistent with section 290, which is the core of California's Sex Offender Registration Act. "By requiring an out-of-state offense (for which the foreign jurisdiction has not required sex offender registration) to be equivalent to the statutorily defined elements of the registerable California crime, section 290.005's test for registration mirrors that of section 290. Both sections 290 and 290.005 focus on the elements of the offense rather than the conduct underlying the conviction. Consequently, the least adjudicated elements of the out-of-state crime for which the conviction was secured must meet the definition of a section 290 offense without resort to an examination of the facts underlying the conviction." (In re Rodden, supra, 186 Cal.App.4th at p. 36.)
Furthermore, the Rodden court observed the absence of any authority "that would permit us to substitute a wholly different inquiry for out-of-state sex convictions than that provided for by statute [section 290]. Section 290.005's language compels us to conclude that (in the absence of a sex offender registration requirement imposed by the foreign jurisdiction) the least adjudicated elements of the out-of-state conviction must meet all the requirements of an offense specified in subdivision (c) of section 290 without resort to the conduct underlying the foreign conviction." (In re Rodden, supra, 186 Cal.App.4th at p. 40.)
II
The question remains whether, under the least adjudicated elements test, Osgood's New Mexico convictions of CSP in the third degree constitute or are the equivalent of any California offense for which sex offender registration is required.
Osgood contends the trial court erred by finding the elements of the New Mexico crime of CSP in the third degree are equivalent to the elements of California sexual crimes that involve sexual penetration and require sex offender registration, rape (§ 261), sodomy (§ 286), oral copulation (§ 288a), and sexual penetration by a foreign object (§ 289). Since this is pure question of law, our standard of review is de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
The New Mexico crime of CSP in the third degree is "the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object... through the use of force or coercion." (N.M. Stat., § 30-9-11 (A) & (F), italics added.) "Force or coercion" as used in New Mexico sex crime statutes, is defined as:
"(1) the use of physical force or physical violence;
"(2) the use of threats to use physical violence or physical force against the victim or another when the victim believes that there is a present ability to execute the threats;
"(3) the use of threats, including threats of physical punishment, kidnapping, extortion, or retaliation directed against the victim or another when the victim believes that there is an ability to execute the threats;
"(4) the perpetration of criminal sexual penetration or criminal sexual contact when the perpetrator know or has reason to know that the victim is unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act; or
"(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without the patient's consent during the course of psychotherapy or within a period of one year following the termination of psychotherapy." (N.M. Stats., § 30-9-10 (A), italics added.)
We quote the current version of New Mexico Statutes, section 30-9-10 (A). At the time of Osgood's convictions, the statute did not include paragraph (A)(5). (N.M. Stats. 1979, ch. 28, § 1.)
Under California law, rape is sexual intercourse that is accomplished against a person's will by force or fear. (In re Asencio (2008) 166 Cal.App.4th 1195, 1202.) The pertinent statute―section 261, subdivision (a)―defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
For purposes of our comparison of New Mexico's offense of CSP in the third degree with California crimes involving sexual penetration, we will focus on rape; a similar analysis would apply for sodomy, oral copulation and sexual penetration by a foreign object. We also note the statutory offense of CSP was derived from the essential elements of the common law crime of rape. (State v. Keyonnie (1977) 91 N.M. 146, 148 [571 P.2d 413, 415].)
"(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.
"(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
"(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
"(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting...
"(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
"(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, 'threatening to retaliate' means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
"(7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official.... " (§ 261, subd. (a)(1)-(7).)
Under New Mexico's offense of CSP in the third degree, the act of sexual penetration is accomplished by using "force or coercion" to overcome the victim's will to resist or thwart the act. New Mexico's CSP statute was intended to codify the common law crime of rape and the essential elements of CSP were derived from the essential elements of common law rape. (State v. Keyonnie, supra, 571 P.2d at p. 415.) Two "essential elements" of CSP are "force" and "commission of the act without the consent or against the will of the victim." (Ibid.)
Rape under California law is an act of sexual intercourse without a person's effective consent. (§ 261; 2 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Sex Offenses & Crimes Against Decency, § 1, p. 317.) "Consent" is defined as "positive cooperation in act or attitude pursuant to an exercise of free will." (§ 261.6, italics added.) "A consenting person acts freely and voluntarily and knows the nature of the act or transaction involved." (2 Witkin & Epstein, Cal. Criminal Law, supra, § 6, p. 321.) Under section 261, subdivision (a)(2), the means used to accomplish a rape is by force or fear. (CALCRIM No. 1000; In re Asencio, supra, 166 Cal.App.4th at p. 1202.)
Osgood contends that his New Mexico conviction of CSP in the third degree (N.M. Stats., § 30-9-11 (A) & (F)) does not satisfy the least adjudicated elements test because the New Mexico statute may be violated by making an extortion threat (N.M. Stats., § 30-9-10 (A)(3) while rape and the other relevant California sex crimes cannot. We disagree.
First, we note a threat of extortion is not an element of the New Mexico crime of CSP in the third degree. A threat of extortion is simply one of a number of types of threats that can satisfy the element of "force or coercion" in overcoming the will of the victim and committing the crime of CSP in the third degree. (N.M. Stats., §§ 30-9-11 (A) & (F), 30-9-10 (A)(3).) New Mexico courts have recognized force or coercion as one of the elements of CSP in the third degree, which "requires sexual conduct perpetrated through force or coercion." (State v. Fielder (2005) 138 N.M. 244, 253 [118 P.3d 752, 761]; see also State v. Pisio (1994 Ct. App.) 119 N.M. 252, 261 [889 P.2d 860, 869] [CSP in the third degree is sexual penetration committed with only force or coercion associated with an act of sexual penetration for which there was no consent].)
Second, an examination of the relevant New Mexico statute shows that when we consider a threat of extortion with respect to CSP in the third degree, such a threat is a means of coercing the victim's consent. The use of force is not at issue because an extortion threat is used to induce coercion―not force―to overcome the victim's will. The element of "force or coercion" as used in CSP in the third degree, as well as in other New Mexico sex crimes, can be accomplished in five ways. (N.M. Stats., § 30-9-10 (A)(1)-(5).) In addition to "the use of... threats of... extortion... against the victim or another" (N.M. Stats., § 30-9-10 (A)(3), the New Mexico legislature has defined "force or fear" as "use of physical force or physical violence" (N.M. Stats., § 30-9-10 (A)(1)). A statute should not be interpreted in a manner that would make provisions of the statute surplusage or superfluous. (State v. Rivera (2003) 134 N.M. 768, 773.) Force―as opposed to coercion―is covered by New Mexico Statutes, section 30-90-10 (A)(1). To construe the use of threats set forth in paragraph (A)(3) of the statute as a way of generating force would render paragraph (A)(1) surplusage and would contravene basic principles of statutory construction.
The remaining three ways that satisfy the "force or fear" element of CSP in the third degree are: by "use of threats to use physical violence or physical punishment, " (N.M. Stats., § 30-9-10 (A)(2)); by committing the act when the victim is unconscious or otherwise physically helpless or has a mental condition that precludes understanding the nature of the sexual penetration (N.M. Stats, § 30-9-10 (A)(4)); and when the perpetrator is a psychotherapist and the victim is a patient (N.M. Stats., § 30-9-10(A)(5)). Analogous provisions in California's rape statue are found in paragraphs (1), (3) and (4) of section 261, subdivision (a).
Third, although the words "threats of extortion, " do not appear in section 261 and other comparable California criminal sex statutes, this is of little consequence in applying a least adjudicated elements test to the New Mexico offense of CSP in the third degree and the comparable California sex crimes. The New Mexico extortion statute reads in part:
"Extortion consists of the communication or transmission of any threat to another by any means whatsoever with intent thereby to [1] wrongfully obtain anything of value or [2] to wrongfully compel the person threatened to do or refrain from doing any act against his will." (N.M. Stats., § 30-16-9.)
Obviously, extortion committed for larcenous purposes is irrelevant in the context of sex crimes; it is only extortion that is committed with the latter intent―"to wrongfully compel the person threatened to do or refrain from doing anything against his [or her] will"―that can apply in the context of sex crimes. On questions of statutory interpretation, "[w]e must take care to avoid adoption of a construction that would render the statute's application absurd or unreasonable or lead to injustice or contradiction." (State v. Morales (2010) 148 N.M. 305 [236 P.3d 24, 27].) "A statutory construction that leads to absurd consequences should be avoided." (In re Torres (2010) 186 Cal.App.4th 909, 919.) Applying the larcenous objective of extortion to CSP in the third degree would be absurd. Therefore, the only sensible and reasonable interpretation of "the use of... threats of... extortion" (N.M. Stats., § 30-9-10 (A)(3)) in the context of CSP in the third degree is that the crime can be committed by threats "to wrongfully compel the person threatened to do or refrain from doing anything against his will." (N.M. Stats., § 30-16-9.) "Threats of extortion" in the context of New Mexico's offense of CSP in the third degree simply means threats to have someone engage in the act of sexual penetration against his or her will. Compelling a victim to do an act or refrain from doing an act against his or her will is, of course, the sine qua non of sex crimes, no matter what the jurisdiction in which they are committed. (See State v. Keyonnie, supra, 571 P.2d at p. 415 [an essential element is " 'commission of the act without the consent or against the will of the victim' "]; In re Asencio, supra, 166 Cal.App.4th at p. 1202 [gravamen "of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, " italics added].)
Extortion does not appear in California sex crime statutes comparable to New Mexico's CSP statute because of the language of California's extortion statute, which reads: "Extortion is the obtaining of property from another, with his [or her] consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (§ 518.) Neither of these "alternative objectives" (People v. Norris (1985) 40 Cal.3d 51, 58 (conc. opn., Kaus, J.) of extortion under California law has anything to do with sex crimes. This appears to us as a reasonable explanation for why the word "extortion" does not appear in California sex crime statutes.
Section 518 originally defined extortion only in terms of obtaining property from another by force or fear. The statute was amended to include "the obtaining of an official act of a public officer" in 1939. (Stats. 1939, ch. 601, §1, p. 2017.) The Legislature acted after the Court of Appeal issued its decision in People v. Robinson (1933) 130 Cal.App. 664. The Court of Appeal held the defendant's threat to expose a judge to disgrace unless the judge appointed him receiver in a pending action was not extortion because the receivership was not a public office and not property. (Id. at p. 666; see also 2 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crimes Against Property, § 104, p. 137.)
It is a legal peculiarity of section 518 that it includes the "with... consent" language because the gist of the crime of extortion is the consent is "coerced and unwilling." (People v. Goodman (1958) 159 Cal.App.2d 54, 61.)
What does appear in California's rape statute is the following definition: "Rape is an act of sexual intercourse... [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another." (§ 261, subd. (a)(2), italics added.) " 'Duress' would be redundant in the cited statute[] if its meaning were no different than 'force, ' 'violence, ' 'menace, ' or 'fear of immediate and unlawful bodily injury.' " (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) "Duress, " for purposes of California's rape statute, is defined as "direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." (§ 261, subd. (b).) "[D]uress involves psychological coercion." (People v. Schulz, at p. 1005.) " 'Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger...or retribution." (People v. Hecker (1990) 219 Cal.App.3d 1238, 1250-1251, fn. omitted; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.)
"Menace, " for purposes of California's rape statute, is defined as "any threat, declaration, or act which shows an intention to inflict injury upon another." (§ 261, subd. (c).)
In our view, duress means threats―either direct or implied―that are used to psychologically coerce a victim "to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted" (§ 261, subd. (b)). This mirrors the import of "threats of extortion" in relation to the New Mexico offense of CSP in the third degree, namely, threats "to wrongfully compel the person threatened to do or refrain from doing anything against his will" (N.M. Stats., § 30-16-9).
We conclude the New Mexico offense of CSP in the third degree is an equivalent offense to the California crimes of rape and others involving sexual penetration for purposes of section 290.005. Under section 290.005, Osgood is required to register as a sex offender under section 290.
DISPOSITION
Affirmed.
I CONCUR: NARES, J.
I CONCUR IN THE RESULT: McINTYRE, J.