Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. SA049605 Katherine Mader, Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Janet Neeley, Stephanie C. Brenan, and Sarah J. Farhat, Deputy Attorneys General Deputy.
ZELON, J.
INTRODUCTION
In 2003, Appellant Whitney Daniel pled no contest to oral copulation with a minor and was ordered to register as a sex offender as then required under Penal Code section 290. After his probation terminated, Daniel filed a motion to eliminate his lifetime sex offender registration pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185. The trial court denied the motion. Daniel appeals the ruling, arguing that the trial court abused its discretion in ordering him to continue to register as a sex offender and committed various other errors. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Commitment Offense and Sentencing
Whitney Daniel was the coach of a women’s club basketball team. He met the victim, Ashley, at a basketball camp when she was 14 years old. A year later, Daniel recruited Ashley to play on his club team. Daniel also coached a high school basketball team with Ashley’s father, and he became close to the victim’s family. Daniel and Ashley began spending time together, frequently sharing details about their personal lives. They eventually became involved in a sexual relationship that began with hugging and kissing and progressed to petting. These acts normally occurred during out-of-town basketball tournaments. When the sexual conduct began, Daniel was 37 years old and Ashley was 16. Daniel was divorced from his first wife, with whom he had two children, and was married to a second wife, with whom he had two other children.
The record does not contain a copy of the probation report or other evidence describing the facts supporting Daniel’s conviction. Our summary of the offense is based on the People’s opposition to Daniel’s motion to delete his registration requirement and a 2009 psychological evaluation. Daniel does not dispute these facts.
During the course of their relationship, Daniel told Ashley that he was having problems with his wife and would be staying in a hotel. Ashley visited Daniel at the hotel and they had sexual intercourse. Over the next 14 months, Daniel and Ashley repeatedly engaged in oral copulation and sexual intercourse. At the age of 17, Ashley became pregnant with Daniel’s child. The baby was adopted.
On August 12, 2003, the Los Angeles County District Attorney charged Daniel with seven counts of unlawful sexual intercourse with a minor (Penal Code, § 261.5, subd. (c)), a single count of oral copulation with a minor (§ 288a, subd. (b)(1)), and a single count of forcible lewd acts upon a minor (§ 288, subd. (b)(1)). Daniel pled no contest to oral copulation with a minor under section 288a, subdivision (b)(1). The Probation Officer’s report recommended that Daniel be “committed to the California Department of Correction for as long as the law will permit. The road to recovery and return to reality on the part of the victim is going to be long and arduous task. This defendant should not be given any leniency considering the hell and painful life that is ahead of this victim.”
All further statutory references are to the Penal Code, unless otherwise specified.
The trial court suspended imposition of sentence and placed Daniel on probation for five years, subject to numerous terms and conditions, including, in part one year in county jail and completion of a two year sex offender counseling program. In addition, the court ordered Daniel to register as a sex offender which, at the time of the sentencing, was required for all persons convicted of oral copulation with a minor under Penal Code section 290. The court dismissed all remaining counts.
B. Hofsheier and Procedural History Regarding Daniel’s Registration Status
While Daniel was on probation, an appellate court ruled that that Penal Code section 290’s mandatory sex offender registration requirement violated the equal protection clause when applied to persons convicted of oral copulation with a minor. (People v Hofsheier, previously published at (2004) 117 Cal.App.4th 438 [review granted People v. Hofsheier (2006) 14 Cal.Rptr.3d 211].) The court further ruled that the appropriate remedy for the constitutional violation was to strike the defendant’s registration requirement. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1209 (Hofsheier).) Shortly after case was decided, the trial court ordered the State to remove Daniel from the sex offender registry.
On June 9, 2004, the California Supreme Court granted review of Hofsheier. The trial court thereafter reinstated Daniel’s registration requirement pending the Supreme Court’s resolution of the matter. In 2006, the Supreme Court affirmed the appellate court’s conclusion that “the mandatory registration requirement imposed for convictions under section 288a, subdivision (b)(1) (oral copulation with a minor) [violated the equal protection clause] in light of the absence of any similar requirement for conviction under section 261.5 (sexual intercourse with a minor.)” (People v. Picklesimer (2010) 48 Cal.4th 330, 336 (Picklesimer) [citing Hofsheier, supra, 37 Cal.4th 1185].) However, the Court “limited relief to a remand for application of section 290.006 (then codified as former § 290, subd. (a)(2)(E)), ” which provides the trial court discretion to order lifetime registration for any offense that is not subject to mandatory registration. (Picklesimer, supra, 48 Cal.4th at p. 357.)
On April 26, 2006, the trial court again reviewed Daniel’s registration requirement. The court declined to withdraw the requirement but retained jurisdiction to revisit the issue after Daniel completed his probation.
C. Daniel’s Psychological Evaluations
Shortly before his sentencing in 2003, Dr. Richard Romanoff conducted a psychological evaluation of Daniel. In a report issued November 11, 2003, Romanoff concluded that Daniel did not exhibit any abnormal sexual urges and that there was insufficient evidence to suggest that he represented a risk of committing similar sexual offenses in the future. Romanoff further concluded, however, that Daniel displayed “‘an abnormal level of egocentrism that left him relatively unconcerned with the impact that his actions would create for others.’” Romanoff diagnosed Daniel with “Narcissistic Personality Disorder, ” commenting that, in his experience, individuals with this type of “‘characterological structures are not particularly amenable to mental health treatment and I did not see much evidence during the current clinical interview to indicate that Mr. Daniel is particularly motivated to pursue his own personal growth or to explore his own inappropriate behavior in connection with the current alleged offenses.’”
In December 2006, the institution that oversaw Daniel’s court-ordered sex offender counseling program submitted a second psychological evaluation. The report indicated that Daniel tended to “intellectualize and rationalize” his offense. The report also stated that:
When Mr. Daniel attempts to discuss specifics of the sexual abuse, he becomes agitated and then verbally abusive to other members in the group. Mr. Daniel demonstrates low to moderate controlling behaviors when he shares his efforts to heal from the molest, but he tends to complain about the criminal justice system and proclaiming his innocence. Mr. Daniel’s current focus is processing his role in the sexual abuse. However, Mr. Daniel continues to intellectualize his role. Mr. Daniel has not processed any of the issues that resulted with his separation from his family. At this time counseling sessions will focus on helping Mr. Daniel discuss and process the specifics of the sexual abuse.
After Daniel completed his probation in 2009, the trial court ordered Daniel to undergo a third psychological evaluation. The report, which was conducted by Gordon Plokin, M.D., Ph.D., concluded that Daniel did “not have a major mental disease, disorder, or defect (including pedophilia)” and presented “a low risk for reoffense.” The report explained that the victim was “a post pubescent female, by no means indicating sexual urges with children. The fact that this was a near adult female, while inappropriate and illegal, did not show evidence of a psychiatric disorder.”
Dr. Plotkin’s report also disagreed with Dr. Romanoff’s conclusion that Daniel had a “Narcisstic Personality Disorder, ” noting that “the defendant completed two years of counseling, and in my interview appeared to have quite a bit of insight into his own behavior and remorse for the victim, the victim’s family, and his own family.” Plotkin explained that although Daniel exhibited “narcissistic ‘traits, ’” he had demonstrated an ability to “to maintain a stable relationship with his family (including wife and children)... after committing this crime, ” which was inconsistent with a narcissistic disorder. Plotkin’s evaluation concluded that:
There is insufficient evidence to suggest that he represents a future risk of similar behavior. Obviously one would likely present themselves in the best possible light in a forensic interview, but even with that, his level of understanding into his behavior, remorse for his victim, the victim’s family, and his own family, along with the understanding of the necessity to refrain from similar acts (merely because the victim would be age inappropriate) has surely crystallized into what is now strong insight and obviously improved judgment. Therefore, I believe he poses a limited risk to reoffend.
D. Daniel’s Motion to Remove his Sex Offender Registration Requirement
After Daniel completed his probation, he filed a “Notice of Motion to Delete Penal Code Section 290 Sex Registration Requirement” arguing that: (1) under People v. Hofsheier, he was ineligible for mandatory sex offender registration, and (2) there were inadequate grounds for the trial court to impose discretionary registration under Penal Code section 290.006. The People conceded that, under Hofsheier, Daniel was ineligible for mandatory registration, but argued that the court should exercise its discretionary authority to maintain the registration requirement pursuant to section 290.006.
At the initial hearing, the trial court informed the parties that it had not had time to adequately review Dr. Plotkin’s psychological evaluation or the relevant case law. The court noted, however, that Plotkin’s report referenced documents containing allegations that Daniel made “sexual overtures” to other female students. Defense counsel explained that Plotkin’s comments were based on “one or two sentences put in a police report that nothing was followed up on.” Counsel argued that the statements were inadmissible “hearsay” and that Daniel had no ability to “refute these types of allegations, ” which were “supposedly said five or six years ago.” The prosecutor, however, informed the court that it could provide “supplemental investigation reports that relate to that statement.”
The trial court expressed concern over the reliability of the evidence, stating “there’s really not a lot of support to this. And to me, that is a very significant factor in evaluating how Mr. Daniel may or may not present a risk to other people in the community.” The court continued: “if it is just somebody heard from somebody from somebody else, that’s not... very convincing [evidence.] If, in fact, there are supplemental reports in which these people have been interviewed and have made certain allegations, I think that’s different.” The court decided to continue the hearing and asked the prosecutor to produce copies of any documents or investigations related to the hearsay statements.
On June 1, 2009, the trial court resumed the hearing and reconsidered the allegations in the police report. The record indicates that the prosecutor gave the trial court a copy of the police report and other supplementary materials which alleged that a female student informed her high school teacher that Daniel had asked her whether she was a virgin and whether she thought “things would be better if we had a relationship like with the victim Ashley.” The materials also indicated that Daniel had tried to kiss the female student. The prosecutor informed the court that he had asked the detective who prepared the reports to interview the female student but the detective was unable to do so because he was on vacation.
The record does not describe what specific documents the prosecutor gave to the trial court. Based on the parties’ discussion at the hearing, it appears that the prosecutor provided a copy of the original police report reviewed by Dr. Plotkin and a supplemental police report containing additional information about the disputed statements. The record does not, however, contain copies of any of the reports and it is impossible to decipher what specific materials were provided to the court.
Defense counsel thereafter renewed its objection to the statements, arguing that they constituted unreliable, inadmissible hearsay. In support, counsel noted that a supplemental investigation indicated that two females who Daniel coached said that they had never received any inappropriate communications from him. The court, however, overruled Daniel’s objection and continued with the hearing, stating that it was Daniel’s “burden... as to why the 290 requirement should be lifted.”
Specifically, defense counsel stated that “I might also add that the investigation that the court asked the prosecution to do, they did speak, the police did speak to a few of these girls. One... said she never recalled any calls from Daniel, did not recall any inappropriate comments or touching. [¶] Another one... said she never received any telephone calls from Daniel.” It is unclear from the record what specific investigation counsel is referring to nor is it clear if these women had been mentioned in the original police report.
After hearing the parties’ arguments, the court summarized the purposes of the sex offender registration requirement: “One is if the police would want to find Mr. Daniel if there was a sexual crime that was committed, they would want to keep track of him for that purpose. And under that requirement, I don’t find arguments for that very compelling given the nature of this case. The second purpose of 290 is to have a sexual registrant’s name on a database that would serve a public purpose for other parents to be warned basically... I think that’s a more difficult issue in this case.”
The court then weighed the evidence in Daniel’s case, beginning with the reasons against maintaining the registration requirement: “there are... two psychologists who say that the risk of re-offense is low. There’s the argument that Mr. Daniel has been rehabilitated. He was convicted of a felony which will stay with him. That he completed two years of sex therapy classes, one year in the county jail. That he has not violated his probation. That the sex in this case was not forced.”
The court then described the reasons in support of continuing registration. First, the court noted that the 2006 psychological report submitted by the institution that administered Daniel’s two year sex offender counseling program “was not... positive.” The court explained that the report concluded that: (1) Daniel had intellectualized and rationalized his conduct, (2) he became agitated and abusive to other members in the group when discussing the specifics of the sexual abuse; (3) he demonstrated low to moderate controlling behaviors when discussing his efforts to heal from the molest; (4) he tended to complain about the criminal justice system and proclaim his innocence; (5) he had not processed any of the issues that resulted with his separation from his family. The court also stated that it found the 2006 report more probative than the 2003 and 2009 psychological evaluations because the examiner who prepared it “observed Mr. Daniel over a lengthy period of time.”
The court detailed various additional factors that supported registration, including the fact that there was “an extreme age difference between this teen-ager and Mr. Daniel, in his mid thirties” and that Daniel “violated a position of trust as a coach and as a position in which he was trusted also by the victim’s parents.” The court also expressed concern that Daniel had two young children and was therefore likely to have contact with minors in the future. In addition, the court found the allegations in the police report to be “very troubling[. I]t indicates to me symptoms of predatory behavior and not just being in love with a girl who is 16 years old and losing control.”
Finally, the court considered the circumstances of Daniel’s offense, explaining that he had exhibited “terrible judgment in this relationship... with this young girl for such an incredibly long period of time where he had multiple opportunities to go over in his mind what he was doing and stop, change course, realize the poor judgment he was exhibiting. [¶] But he didn’t. And he didn’t stop until he was forced to stop when she became pregnant, and there was no alternative.”
After reviewing all of the evidence, the court concluded that:
Mr. Daniel, who probably has a lot of good qualities but for some reason has an abnormal ability to control his impulses.... [¶] I’ve read the shrink reports, I don’t understand really why it happened and why it won’t be repeated. Why is it that now, two-and-a-half years after the last relatively poor report from the counselor, why is it that Mr. Daniel now is able to control those impulses. [¶] I mean, certainly there are many people in their thirties or so that are tempted by young, cute girls. But they say no. They’re able to stop. They turn away from the relationship. [¶]... And I don’t think... it’s ever been adequately explained to me why Mr. Daniel was unable to turn around and why he would turn away today. [¶]... [¶] If I have to balance the protection of the public, which I believe I do, and I believe that that’s what the purpose of 290 is addressing, with Mr. Daniel’s opportunity to have a normal life at this point, I have to go with the protection....
The court then denied Daniel’s motion, commenting that “even if there were not this other call which I am referring to in El Segundo Police Department Crime Report of May 1st 2003... I would not have made a different decision.” Daniel timely appealed the ruling.
DISCUSSION
Daniel argues that the court committed three reversible errors in denying his motion to eliminate his sex offender registration requirement. Specifically, Daniel contends that the trial court: (1) abused its discretion in imposing the requirement under Section 290.006; (2) improperly admitted uncorroborated hearsay statements that appeared in a police report, and; (3) misallocated the burden of proof by requiring Daniel to show why the requirement should be eliminated under section 290.006.
The California Supreme Court recently held that “for... defendant[s] who are no longer in custody and whose appeals are final, claims for Hofsheier relief... must be brought by way of a petition for writ of mandate in the trial court. A freestanding postjudgment motion for Hofsheier relief... is not cognizable....” (Picklesimer, supra, 48 Cal.4th at p. 335.) The Court further stated, however, that “a court in its discretion may treat a motion or a petition for a different writ as a mislabeled petition for writ of mandate.” (Id. at p. 340.) Although Daniel was no longer in custody at the time he filed his motion, neither party has challenged the trial court’s jurisdiction to decide the matter. The record indicates that, in 2006, the parties stipulated that the court would retain jurisdiction to decide whether to eliminate Daniel’s registration requirement following the termination of his probation. Therefore, it appears that the court had jurisdiction to decide the issue. To the extent the parties’ stipulation did not properly confer jurisdiction, we find that the record is sufficient to decide the merits of Daniel’s appeal and therefore exercise our discretion to review the trial court’s decision. (See id. at p. 341)
A. The Trial Court Did Not Abuse its Discretion in Requiring Daniel to Register as a Sex Offender
1. Standard of Review
Daniel’s primary argument on appeal is that the trial court abused its discretion when it ordered him to maintain his sex offender registration. In applying the abuse of discretion standard, “[b]road deference must be shown to the trial judge. The reviewing court should interfere only ‘“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 [or she] did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) In other words, the trial court’s ruling must be affirmed unless it is “arbitrary, capricious, or patently absurd.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
2. Summary of People v. Hofsheier and Penal Code section 290.006
In People v. Hofsheier, supra, 37 Cal.4th 1185, the Supreme Court “concluded imposition of mandatory lifetime sex offender registration on defendants convicted of violations of Penal Code section 288a, subdivision (b)(1) for voluntary oral copulation with a 16- or 17-year-old minor violated the state and federal equal protection clauses.” (Picklesimer, supra, 48 Cal.4th at p. 335). The Court’s ruling was predicated on the fact that defendants convicted of sexual intercourse with a minor (§ 261.5) were not subject to a mandatory registration requirement. (Id. at p. 336.) Such defendants could only be required to register pursuant to section 290.006 (then codified as former § 290, subd. (a)(2)(E)), which provides the trial court discretion to order lifetime registration for offenses not otherwise subject to mandatory registration. (Hofsheier, supra, 37 Cal.4th at pp. 1197-1198.)
Hofsheier further ruled that the appropriate remedy for the equal protection violation was to “remand [the matter to the trial court] for application of section 290.006 [Citation.]” (Picklesimer, supra, 48 Cal.4th at p. 356.) In a subsequent decision, the Court explained that “the consequence of the equal protection violation was not that a defendant convicted under section 288a, subdivision (b)(1) (oral copulation with a minor) had been placed in the state sex offender registry when otherwise he would have been excluded, but that he had been placed in the state sex offender registry automatically when otherwise his placement would have been a matter of discretion under section... 290.006. The remedy we crafted, remand for a discretionary determination whether [the defendant] should be required to register, was tailored to address this harm.” (Id at p. 357.)
Daniel was convicted of oral copulation of a minor under section 288a, subdivision (b)(1), which was the offense at issue in Hofsheier. Therefore, there is no question that his mandatory inclusion on the sex offender registry violated the equal protection clause. The only issue is whether the trial court abused its discretion in ordering Daniel to maintain his registration pursuant to section 290.006.
To require discretionary registration under the 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.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) In other words, the trial court must first decide whether the crime was committed as a result of sexual compulsion or for purposes of sexual gratification. If the court determines that the act was committed for such a purpose, it must then decide whether to exercise its discretionary authority to require registration and state the reasons for its decision.
Section 290.006 states: “Any person ordered by a court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, 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.”
3. The trial court did not abuse its discretion
Although Daniel does not challenge the trial court’s finding that “the actions in this case were for sexual compulsion, ” he argues that the court abused its discretion in deciding that the evidence weighed in favor of requiring him to maintain his sex offender registration. Specifically, Daniel argues that, under section 290.006, a trial court must “find [that] the defendant is likely to commit a sex offense in the future before it can impose lifetime registration pursuant to its discretionary authority.” He further argues that, in this case, the trial court did not make such a finding and that “even if that finding could be implied, it is not supported by competent substantial evidence.”
Section 290.006 and Hofsheier do not contain any language indicating that a trial court must find that a defendant is likely to re-offend before imposing discretionary registration. However, several appellate court rulings applying Hofsheier have concluded that because the primary purpose of sex offender registration is to “keep track of persons likely to reoffend, one of the ‘reasons for requiring registration’ under section 290.006 must be that the defendant is likely to commit similar offenses... in the future.” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 (Lewis); People v. Garcia (2008) 161 Cal.App.4th 475, 485 [“where registration is discretionary... one consideration before the court must be the likelihood that the defendant will reoffend”] [disapproved on other grounds, Picklesimer, supra, 48 Cal.4th at p. 338, fn.4]; People v. Thompson (2009) 177 Cal.App.4th 1424, 1431 [describing defendant’s likelihood of re-offense as the “most important[]” consideration].) Although these decisions make clear that likelihood of recidivism is an important consideration in deciding whether to impose sex offender registration, none of them expressly hold that likelihood of re-offense is a necessary precondition to imposing registration pursuant to section 290.006.
Daniel disagrees, arguing that Lewis, supra, 169 Cal.App.4th 70, is properly interpreted as establishing such a requirement. The defendant in Lewis was convicted of oral copulation with a minor. The evidence at trial showed that Philander Lewis, then 22, was smoking crack in an automobile with the victim, who was a 17 year old female, and the victim’s cousin. After the victim agreed to orally copulate her cousin, Lewis asked her to do the “same thing” to him. (Id. at p. 73.) In response, the victim said that she wanted to go home. Lewis told her he would take her home after she orally copulated him, which she then did. (Ibid.) Although the prosecution contended that Lewis had forced the victim to commit the act against her will, the trial court ruled that there was insufficient evidence to support the enhanced charge. (Id. at p. 73.)
Twenty years after his conviction, Lewis filed a Hofsheier motion requesting that the court eliminate his sex offender registration requirement. The People conceded that Lewis was not eligible for mandatory registration, but argued that the court should impose discretionary registration under section 290.006 based on two factors: (1) the circumstances of Lewis’s underlying offense, and (2) several subsequent convictions that included failure to register as a sex offender, soliciting prostitution, a domestic violence conviction and several narcotics convictions. (Lewis, supra, at pp. 74-75.) The trial court denied the motion and ordered Lewis to maintain his registration.
The appellate court reversed, explaining that the circumstances of his crime and the nature of his subsequent convictions did “not support the conclusion that Lewis is likely to commit [a registerable sexual offense in the future].” (Lewis, supra, at pp. 78-79.) The court noted that the facts underlying Lewis’s offense did not suggest that he had “prey[ed] upon young girls” or “coerced [the victim] into doing something she would not otherwise have done.” (Id. at p. 79.) The court further stated that “it is undisputed that, in the 20 plus years since his conviction under section 288a, subdivision (b)(1), Lewis has committed no offenses requiring him to register as a sex offender and no offenses similar to those requiring registration. Even if we assume that Lewis’s 1987 conviction involved his taking advantage of the victim's vulnerable situation, he has not committed a single similar incident since then. Thus, the only possible basis for imposing a discretionary registration requirement in 2008 would be a finding that it is likely Lewis will start committing such offenses now. There is nothing in the record to support such a finding.” (Ibid.) It is unclear whether Lewis intended to condition discretionary registration in all cases on an express finding that the defendant is likely to re-offend or whether it merely concluded that, based on the facts in the record, there was insufficient evidence to support any grounds for registration.
In this case, we need not determine whether Lewis or section 290.006 are properly interpreted as requiring the trial court to find that the defendant presents a risk of re-offense prior to imposing registration. Even assuming such a requirement exists, the record here demonstrates that: (1) the trial court did find that Daniel presented a risk of re-offense, and (2) the trial court’s finding was reasonably supported by substantial evidence.
a. The court concluded that Daniel presented a risk of re-offense
After summarizing the evidence in Daniel’s case, the trial court stated that it did “not understand” why Daniel’s illegal conduct “won’t be repeated.” It further commented that “I don’t think... it’s ever been adequately explained to me why Mr. Daniel was unable to turn [away from the sexual conduct with the victim] and why he would turn away today.” These statements demonstrate that the court believed Daniel might commit a similar sexual offense in the future.
Despite these statements, Daniel argues that it is “unreasonable to infer... that the court [believed]... appellant was likely to re-offend” because it found “that there was no need for the police to keep track of appellant in the event a sex crime was committed.” However, as explained in the paragraph above, we are not “inferring” the trial courts findings. The court plainly stated that, based on the evidence, it could not conclude that Daniel had demonstrated “an ability to control his [abnormal] impulses” and required Daniel to register because it did not understand why his conduct “won’t be repeated.” The single comment identified by Daniel does not alter the fact that, ultimately, the trial court determined he presented a risk of re-offense.
Although the trial court did not elaborate on this reasoning, we note that any re-offense, given the nature of the underlying conviction, is likely to involve a victim who knows and can identify Daniel.
b. Substantial evidence supported the trial court’s finding
The record also demonstrates that the trial court’s finding that Daniel presented a future risk of re-offense was reasonably supported by substantial evidence. First, as the court noted, Daniel’s 2006 psychological evaluation stated that during his two years of sex offender counseling, he continued to rationalize his behavior, deny his guilt and fail to fully process the issues that led to his crime. The trial court also noted that, at the time of the offense, Daniel was 37 and held a position of authority over the victim, who was only 16. Moreover, his offense was committed over a 14-month period. As the trial court explained, “he had multiple opportunities to go over in his mind what he was doing and stop, change course, realize the poor judgment he was exhibiting. But he didn’t, and he didn’t stop until he was forced to stop when she became pregnant, and there was no alternative.” Finally, the court noted that Daniel had young children of his own and was therefore likely to be around minors in the future. This evidence, considered as a whole, reasonably supported the trial court’s finding that Daniel presented a risk of committing a similar offense in the future.
Daniel, however, argues that the court’s analysis of the psychological evidence was “arbitrary.” First, he contends that the court ignored the 2003 and 2009 psychological reports, both of which concluded that Daniel was a “low risk” to reoffend. Contrary to Daniel’s assertion, the record indicates that the court considered both reports and acknowledged that they concluded he presented a low risk of re-offense. The court, however, found that the 2006 evaluation was more probative of Daniel’s psychological condition because the examiner had observed Daniel over a two year period. In comparison, the 2003 and 2009 reports were each based on a single interview with the Appellant. The court’s decision to assign more weight to the 2006 report was reasonable and does not constitute an abuse of discretion.
Daniel also argues that the court’s reliance on the 2006 evaluation was “misplaced” because the report was outdated and did not specifically address “whether [he] was at risk of committing [a similar crime] again.” Although the 2006 evaluation did not expressly state that Daniel presented a future risk of re-offense, it provided sufficient information for the court to form an opinion on that issue. Specifically the report indicated that, even after two years of therapy, Daniel still rationalized his conduct, blamed the justice system for his problems and proclaimed his innocence. Moreover, the fact that the evaluation was two and half years old did not render the court’s reliance on it arbitrary or capricious.
In sum, the 2006 psychological evaluation, considered in combination with the circumstances of the offense and other evidence in the record, was sufficient to support the trial court’s discretionary decision to impose registration. Unlike Lewis, supra, 169 Cal.App.4th 70, the record here does not “unequivocally” show that there was no risk Daniel would commit a similar offense in the future. As a result, we affirm the trial court’s ruling.
Indeed, the facts of this case shares little in common with Lewis, which involved a one-time incident in which the defendant was close in age to the victim, and the People presented no psychological reports about the defendant’s attitudes toward the crime.
B. The Trial Court’s Reliance on the El Segundo Police Report Does Not Constitute Reversible Error
Daniel also argues that the trial court’s consideration of hearsay allegations in an El Segundo police report constituted a violation of his federal due process rights. Daniel concedes that, as with other post-conviction proceedings, hearsay may be admitted in a Hofsheier hearing “as long as the... testimony bears a substantial degree of trustworthiness.” (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; see also People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [sentencing court could consider probation report containing hearsay statements where report was inherently reliable]; United States v. Garcia-Sanchez (9th Cir. 1999) 189 F.3d 1143, 1149 [“Confrontation Clause does not apply at sentencing... [b]ut ‘Due Process requires that some minimal indicia of reliability accompany a hearsay statement, ’ even at sentencing”].) “‘In general, the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability’.... Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.’ [Citation]” (O’Connell, supra, 107 Cal.App.4th at p. 1066.)
On the record before us, it is difficult to determine whether the hearsay statements were sufficiently reliable to justify their admission. The record does not contain a copy of the police report or the supplemental investigations related to the disputed statements. Moreover, the record provides virtually no information about the speaker’s identity, her relationship to Daniel or the circumstances under which the statements were made. In addition, neither the prosecutor nor the court explained why it believed the statements were trustworthy.
However, even if we assume that the trial court erred in considering the hearsay statements, the record demonstrates that the error was “harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24; People v. Vargas (2009) 178 Cal.App.4th 647, 662 [“‘Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California’”].) At the conclusion of Daniel’s hearing, the trial court stated that its decision to impose sex offender registration would be the same regardless of whether it considered the hearsay. In addition, as discussed above, the court’s discretionary decision was supported by extensive additional evidence that had no relation to the El Segundo police report. Therefore, to the extent the court erred in considering the hearsay, it was harmless.
C. The Trial Court’s Decision to Allocate the Burden of Proof to Daniel was Harmless Error
Daniel argues that the trial court improperly ruled that he had the burden of proof to demonstrate why he should be relieved of the sex offender registration requirement. During the hearing, the trial court stated Daniel had the “burden... as to why the 290 requirement should be lifted.” When Daniel’s counsel objected to this statement, the trial court reiterated that “I do believe... that you have to be persuasive before the court – in order for the court to come to the conclusion that registration should no longer be required.” These statements demonstrate that the trial court did in fact allocate the burden of proof to Daniel. For the reasons discussed below, we conclude that although the court’s ruling was error, the error was harmless.
Generally, “the burden[] of... persuasion flow from a party’s status as a claimant seeking relief.” (People v. Atwood (2003) 110 Cal.App.4th 805, 812; Cal. Employment Com. v. Malm, 59 Cal.App.2d 322, 323, [“when a party seeks relief the burden is upon him to prove his case, and he cannot depend wholly upon the failure of the defendant to prove his defenses”].) Relying on this rule of general applicability, the Attorney General argues that “since Daniel was moving for relief from a previously imposed requirement it was incumbent upon him to demonstrate entitlement to the requested relief.” The case law makes clear, however, that although the party seeking relief normally bears the burden of proof, the rule is not immutable. “‘In a number of situations, reasons of policy, convenience, or mere tradition place the burden in a manner different from that which would normally be expected.’” (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 746.) A review of Hofsheier demonstrates that, in cases where a defendant establishes that he is entitled to relief from mandatory lifetime sex offender registration as the result of an equal protection violation, the People have the burden of proof to establish that the defendant is eligible for discretionary registration.
Hofsheier concluded that the mandatory registration requirement imposed for convictions under section 288a, subdivision (b)(1) (oral copulation with a minor) violated the equal protection clause because there is no “similar requirement for conviction under section 261.5 (sexual intercourse with a minor.)” (Picklesimer, supra, 48 Cal.4th at p. 336.) In a subsequent decision, the Court explained that “the consequence of the equal protection violation [in Hofsheier]... was that [the defendant] had been placed in the state sex offender registry automatically when otherwise his placement would have been a matter of discretion under... § 290.006.” The court’s remedy – “remand for a discretionary determination whether [the defendant] should be required to register” – was “tailored to address this harm.” (Picklesimer, supra, 48 Cal.4th at p. 342.) In effect, the Court concluded that once a defendant demonstrates that he was wrongfully subjected to mandatory registration, he must be put on the same footing as other defendants who commit an offense for which registration is not mandated.
In cases in which a defendant is not subject to mandatory registration, section 290.006 permits the trial court to impose discretionary registration only if it finds that: (1) the crime was committed as the result of sexual compulsion or for purposes of sexual gratification, and (2) the evidence weighs in favor of requiring discretionary registration. Therefore the burden of proof in a section 290.006 proceeding is normally on the People because it is the party that is attempting “to overcome the state of affairs that would exist if the court did nothing.” (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388 [“The burden of proof is... a built-in bias in favor of the status quo. [Citation.] That is, if you want the court to do something, you have to present evidence sufficient to overcome the state of affairs that would exist if the court did nothing”]; see Shivell v. Hurd (1954) 129 Cal.App.2d 320, 324 [“One whose right to call forth the processes of court in his behalf is conditioned upon the existence of certain facts has burden of establishing those facts”].) There is no logical reason why this burden should shift in the context of a Hofsheier proceeding. Such an outcome would undermine the “relief” that Hofsheier provides to persons wrongfully subjected to mandatory registration. Moreover, it would introduce the same inequitable legal treatment that Hofsheier was intended to remedy: persons convicted of oral copulation with a minor prior to Hofsheier would bear the burden of proving that they do not qualify for discretionary registration, while defendants convicted of sexual intercourse with a minor would not.
The trial court’s error, however, does not support reversal in this case. An error in allocating the burden of proof must be prejudicial to sustain a reversal. (People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 [applying harmless error standard to instructional error on burden of proof]; Rose v. Clark (1986) 478 U.S. 570, 578-579 [instructional error impermissibly shifting the burden of proof on issue of malice in murder trial found to be harmless].) Under California’s harmless error standard, reversal is permitted only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) The record contains no indication that the burden of proof had any effect on the outcome of this case. As discussed above, the court’s decision was based on extensive evidence regarding Daniel’s psychological condition and the circumstances of his offense. There is no reason to believe that the ruling was based on the defendant’s failure to meet his evidentiary burden. As a result, it is not reasonably probable that the trial court would have ruled any differently regardless of who had the burden of proof.
To the extent the trial court’s misallocation of the burden of proof is subject to the federal harmless-error standard, we also find that the error was “harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at p. 24.)
DISPOSITION
The trial court’s judgment is affirmed.
We concur: PERLUSS, P. J.JACKSON, J.