Opinion
C088978
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. KAMEIL KAUSIK CHAND, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE021695)
After defendant Kameil Kausik Chand pled no contest to unlawful sexual intercourse, the trial court sentenced him to two years in state prison and ordered him to register as a sex offender. On appeal, defendant argues the trial court abused its discretion and violated his due process rights by considering "unreliable information" when ordering him to register as a sex offender. We agree the trial court abused its discretion by relying on bare assertions offered at the sentencing hearing by the prosecutor regarding defendant's prior acts, and therefore vacate the registration order, and remand for a new hearing.
FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2016, defendant, a 27-year-old male, had sexual intercourse in the back seat of his car with G. S., a 14-year-old female. Defendant made contact with G. S. via Facebook a few weeks beforehand, having told G. S. that he was a 17-year-old student. On the day of his crime, defendant picked up G. S. in his car on a school day, drove elsewhere, had sex with her for five minutes, and then took her back to school.
Defendant later entered an open plea of no contest to one count of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (d)), before which the trial court explained to him that he "could be sentenced up to four years in state prison," and "[would] have to register as a sex offender, pursuant to 290 of the Penal Code."
Further undesignated statutory references are to the Penal Code.
The trial court considered numerous documents in advance of the sentencing hearing, including a probation officer's report which concluded defendant had an "[a]verage [r]isk" for "sexual offense recidivism," and recommended defendant "be ordered to register as a [s]ex [o]ffender pursuant to . . . [s]ection 290.006." Before the court was: a pleading by defense counsel opposing sex offender registration, and arguing "it would be inappropriate [for the trial court] to consider any prior alleged offense/allegation, for which . . . defendant was held not to answer, or acquitted"; a psychiatric risk assessment, conducted at defense counsel's behest, which concluded defendant was "a 'low' danger to sexually re-offend," and which referred to an earlier prosecution of defendant for attempted kidnapping when he was 19 years old; and a letter by defendant to the trial court, in which defendant discussed his 2009 arrest for attempted kidnapping due to a misunderstanding arising out of defendant's request for directions while driving and delivering pizza.
Section 290.006, subdivision (a), permits a court to order sex offender registration due to the commission of "any offense not included specifically in subdivision (c) of Section 290 . . . if the court finds . . . that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification."
At the sentencing hearing, defense counsel argued the California Legislature had in mind "particularly incorrigible offenders" when it created lifetime sex offender registration laws, whereas defendant "[didn't] have a prior record," and "ha[d] an expert who [was] saying he [was] a low risk to reoffend."
The trial court responded: "Let me focus you on that, because I think that is a fundamental issue . . . here in terms of the risk issue. [¶] . . . [¶] There was an earlier event that resulted in an acquittal . . . and I am going to want to hear from you on that and hear from the People . . . as well."
Defense counsel replied: "Sure. I don't want to beat around the bush or waste the [c]ourt's time. You can ask me any questions you have about it. I was the trial attorney on that case." The trial court accepted defense counsel's invitation, stating, "I wasn't . . . at the trial. . . . So I would like to hear from you on that."
Defense counsel recounted the circumstances of the prior prosecution: "[A] young girl accused [defendant] of attempting to kidnap her. . . . [Defendant] was . . . on shift working for Round Table Pizza at the time in uniform, . . . was driving in the neighborhood where the girl was walking home from school that day. There was an allegation that was charged . . . . It was attempted kidnapping for the purpose of sexual gratification . . . . [¶] . . . [¶] [The sexual gratification enhancement] was thrown out at prelim for insufficient evidence. There was not even probable cause for that . . . .
"When the case proceeded to jury trial, the jury did not believe the young girl. There was -- she basically said that the [d]efendant tried to get her to come in the car. The [d]efendant testified that . . . essentially that he's in the neighborhood. He is looking for directions. . . . He was acquitted in about 20 minutes . . . ."
The trial court confirmed with defense counsel that the young girl was 12 years old at the time of the incident and then gave the prosecutor an opportunity to respond. The prosecutor began by observing that he "wasn't the trial attorney on that case, and the file has since been purged," and then provided new details:
"Defendant drove up to" the female, and "told her that her mother had sent him to pick her up and then opened the car door. She . . . became afraid and ran home.
"She didn't accuse him of kidnapping. She is 12 years old. She doesn't know the difference. . . .
"And [defense counsel] is correct. The jury did acquit him. However, I think it's the underlying conduct in this case that should aid and drive whether or not the [d]efendant should register . . . .
"The victim was a female, young, just like the victim in our case . . . . Just because the [d]efendant was [acquitted] . . . didn't mean it didn't happen. It just means that the People weren't able to at least provide enough evidence . . . ." (Italics added.)
Defense counsel responded: "[I]f I recall -- I don't want to misstate information to the [c]ourt. . . . [I]t was quite some time ago. [¶] If I recall right, witnesses testified that the car never stopped. The car door never opened, as the girl had claimed as well. Again, that's from my recollection."
After further argument, the trial court imposed a sentence of two years in state prison, and ordered lifetime sex offender registration, explaining: "[T]hese . . . are typically charges that . . . result in a sentence involving probation, but . . . usually when we see these, there's a closeness in age. There's a lack of planning. There's much less sophistication and dishonesty. Often there's no dishonesty in these matters.
"I am taking into account the event that you were previously charged for and for which you were acquitted. I . . . respect that the defense that you were just asking for directions in connection with your work would be enough to suggest to a reasonable jury a doubt about the case . . . .
"However, a 12-year-old who reports that you told her something along the lines that her mother had sent you to pick her up and bring her home, that strikes me not as something that someone would imagine or make up, and she didn't even, it appears to the [c]ourt, have any reason to know the implications of that statement, and it is wholly inconsistent with the notion that you were looking for directions.
"So I do consider that event, notwithstanding your acquittal for that.
"In this matter, you had a vulnerable victim. . . . [¶] You actively pursued the victim. You planned this. There was a sophisticated dimension to your conduct.
"[¶] . . . [¶]
"On the issue of registration . . . my initial inclination or default . . . would be not to impose [lifetime registration], but I cannot get around the fact that . . . this is not an isolated event. This is the only conviction you have, but it's not an isolated event and . . . you tried to attract a young girl into your car some years ago.
"So with actual reluctance, I conclude that . . . registration is appropriate in this case." (Italics added.)
Defendant timely appealed.
DISCUSSION
On appeal, defendant argues the trial court "abused its discretion and violated [his] due process rights" by considering "unreliable information" when "ordering [defendant] to register under section 290.006." The unreliable information was "the allegation" by "the 12 year old girl" of defendant's prior acts, "which the trial court" accepted as "the gospel truth despite the fact that there were witnesses who contradicted the 12 year old girl and [defendant] was acquitted of any wrongdoing." By relying on that information, defendant contends, the trial court both: (1) made the sentencing hearing "fundamentally unfair," and (2) abused its discretion, as the trial court had only a "personal belief" the alleged victim in 2009 would not imagine or make up defendant's conduct, which belief was based on "a general allegation from a decade earlier, recounted by attorneys who either were not present at the trial or had a foggy memory of it."
Citing People v. Garcia (2008) 161 Cal.App.4th 475, 483, the People argue the trial court did not err by considering defendant's 2009 conduct, which was "relevant information." But the People nevertheless urge us to remand the matter due to an error that defendant did not identify in his opening brief: the trial court "failed to find on the record that the current offense was committed for the purpose of sexual gratification or as a result of sexual compulsion," as required by People v. Hofsheier (2006) 37 Cal.4th 1185.
We conclude that the trial court abused its discretion by basing its sex offender registration decision, in part, on specific details in the prosecutor's bare representation of defendant's prior acts. These representations were not evidence but argument. Accordingly, we need not address defendant's due process argument and the People's assignment of error.
Sex offender registration is mandatory for defendants convicted of offenses listed in section 290, subdivision (c). (§ 290, subd. (b).) Sex offender registration is discretionary for "any offense not included specifically in subdivision (c) of Section 290 . . . if the court 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." (§ 290.006, subd. (a).)
Regarding discretionary registration, the court "should . . . consider all relevant information available to it" and based on that information assess the "likelihood that the defendant will reoffend" and the "necessity for registration." (People v. Garcia, supra, 161 Cal.App.4th at pp. 483-485, disapproved on other grounds by People v. Picklesimer (2010) 48 Cal.4th 330, 338-339, fn. 4, & Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888; see People v. Thompson (2009) 177 Cal.App.4th 1424, 1431.)
Regarding the People's assignment of error, in making the findings required under 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." (People v. Hofsheier, supra, 37 Cal.4th at p. 1197, overruled on other grounds in Johnson v. Department of Justice, supra, 60 Cal.4th at p. 875.)
Here, in preparation for the sentencing hearing, the trial court received multiple sources of information regarding defendant's likelihood to commit another sex offense. Included were several documents provided by the defense that referenced defendant's prior acts and prosecution for attempted kidnapping of a 12-year-old girl when defendant was 19 years old and working as a pizza delivery driver. Then, at the sentencing hearing, defense counsel invited the trial court to "ask [him] any questions [the trial court] ha[d] about" the earlier prosecution, as defense counsel "was the trial attorney on that case." The trial court accepted counsel's invitation, and heard details of the factual and procedural history of the prior prosecution, including (a) that a "sexual gratification" enhancement to the attempted kidnapping charge did not survive the preliminary hearing because there was insufficient evidence for it; and that (b) the young girl "said that the [d]efendant tried to get her to come in the car," but defendant testified that he was merely asking "for directions."
The People do not argue that defendant forfeited his claim by inviting the trial court to consider counsel's representations regarding the prior prosecution, and by failing to object to the prosecutor's representations at the sentencing hearing. (See People v. Scott (1994) 9 Cal.4th 331, 356 ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"]; People v. Bautista (1998) 63 Cal.App.4th 865, 871; see also Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1163 [noting that a party's " ' "participation in the atmosphere which produced the claim of prejudice" ' " may forfeit the claim].)
Accordingly, we reach the merits of the claim. (See People v. Schmitz (2012) 55 Cal.4th 909, 915, fn. 4 [rejecting the twoJustice dissent's argument that defendant "forfeited the claim" at issue, in part because "the Attorney General nowhere raised the forfeiture issue in the Court of Appeal"].)
So far so good. Because he was defense counsel in the earlier case, counsel's representations regarding what occurred in the prior prosecution may have been a valid source of information. (Cf. People v. Smith (2003) 30 Cal.4th 581, 608, 611 [the trial court properly "accepted the district attorney's representation as an officer of the court without requiring him to testify formally" regarding that attorney's efforts to locate a witness]; People v. Wolozon (1982) 138 Cal.App.3d 456, 460, fn. 4 ["Statements of a responsible officer of the court are tantamount to sworn testimony"].)
The trial court then heard from the prosecutor, who -- after noting that he "wasn't the trial attorney on that case, and the file has since been purged" -- provided new details, including that defendant told the young girl "that her mother had sent him to pick her up."
In ordering sex offender registration, the trial court explained that defendant's instant crime was "not an isolated event," as defendant "tried to attract a young girl into [his] car some years ago," which finding was based, in part, on the trial court's reasoning that a "12-year-old who reports that you told her . . . that her mother had sent you to pick her up" was not "something that someone would imagine or make up . . . and . . . is wholly inconsistent with the notion that [defendant] [was] looking for directions." (Italics added.) The prosecutor was the sole source of the information that defendant told the young girl that her mother had sent defendant to retrieve her. The trial court cited that fact as particularly persuasive in the trial court's analysis whether defendant was truly only looking for directions in 2009, or in fact had nefarious motives consistent with defendant's instant crime.
The trial court abused its discretion by relying on the prosecutor's new details of defendant's prior acts, because the prosecutor did not identify the source(s) of the additional details he offered (let alone provide any documentary evidence of the additional details), and the trial court did not state how or why the prosecutor's bare representations regarding the earlier case -- which the prosecutor did not litigate, and whose case file was "purged" -- were sufficiently trustworthy, or at least more trustworthy than defense counsel's representations or the jury's verdict acquitting defendant of attempted kidnapping. (Cf. People v. O'Connell (2003) 107 Cal.App.4th 1062, 1064-1067 [an order terminating defendant's participation in a drug treatment program was not based on "inadmissible hearsay," given the trial court's reasonable conclusion that the drug treatment program manager's "report bore the requisite indicia of reliability and trustworthiness," as "such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reports were prepared in response to a referral from the court"]; People v. Hendrix (2013) 214 Cal.App.4th 216, 239 [" 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion' "].)
The People's reliance on Garcia for the proposition the prosecutor's additional details of defendant's prior conduct was "relevant evidence" is not persuasive.
In Garcia, the trial court "erred in its conclusion that it should not consider circumstances subsequent to defendant's conviction in exercising its discretion as to whether defendant should be subject to lifetime sex offender registration." (People v. Garcia, supra, 161 Cal.App.4th at p. 483.) The trial court erred by not considering "character letters as to [defendant's] remorse over the 1985 incident and the blameless life he . . . led since then." (Id. at pp. 479, 485, fn. 5.)
The defendant, convicted in 1985, sought to challenge the sex offender registration component of his sentence after a 2006 decision of the California Supreme Court made such relief plausible given the particular circumstances of the defendant's crime. (People v. Garcia, supra, 161 Cal.App.4th at pp. 478-479.) --------
Garcia is distinguishable, as it was about what a trial court must consider in making a section 290.006 determination, not what a trial court cannot consider. Garcia makes clear that statutes and case law explicitly contemplated the relevance of a defendant's "subsequent good behavior or rehabilitation" when considering a defendant's efforts to seek "relief from the sex offender registration requirements," which information the defendant in Garcia sought to introduce via character letters. (People v. Garcia, supra, 161 Cal.App.4th at p. 485, fn. 5; cf. People v. Mockel (1990) 226 Cal.App.3d 581, 587 ["[t]here was nothing fundamentally unfair about" the trial court's "consider[ation] [of] the letters received from family and friends of the victim and letters received on behalf of [defendant]," as "decisional law in California allows the sentencing court to consider" such information].) Here, by contrast, the People offer no authority for the proposition that a prosecutor's bare representations at a sentencing hearing regarding a defendant's prior acts is "relevant evidence" within Garcia's meaning.
Defendant asks us to remand the matter so that the trial court can consider sex offender registration on "fair factual findings." We agree that is the proper relief to which defendant is entitled, as we have not been asked to analyze whether no facts exist that would support a sex offender registration order. (Cf. People v. Picklesimer, supra, 48 Cal.4th at p. 345 [rejecting defendant's argument, in a section 290.006 case, that "no facts exist[ed] that would support" a sex offender registration order on remand, because the Court could not "determine whether this [was] a case in which there [was] 'no basis for the exercise of discretion' because 'the existing facts unequivocally require[d] one particular action' "].)
Because we remand the matter for a new section 290.006 hearing, we need not address defendant's due process claim and the People's assignment of error. (See People v. Booth (2016) 3 Cal.App.5th 1284, 1313-1314, fn. 6.)
DISPOSITION
The trial court's sex offender registration order is vacated, and the matter is remanded for a new sex offender registration hearing. In all other respects, the judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Krause, J.