Opinion
2d Crim. No. B227989 Super. Ct. No. CR23393
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GLEN PRITCHARD, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Michael Glen Pritchard appeals the order requiring him to register as a sex offender pursuant to Penal Code section 290.006. He contends the trial court abused its discretion because there was no substantial evidence to support the findings required by section 290.006. He also contends that a registration order under section 290.006 violates due process because the statute does not require proof by clear and convincing evidence. We affirm.
All statutory references are to the Penal Code.
FACTS
In 1987, then 41-year-old Prichard orally copulated a 15-year-old girl. The victim was Pritchard's neighbor and a friend of his son. The victim had gone to Pritchard's house for advice on a family problem. Pritchard took the victim's pants down, touched her, and orally copulated her. Approximately two weeks later, Pritchard orally copulated the girl a second time under similar circumstances. The victim told her mother who contacted the police.
In a 1988 plea bargain, Pritchard was convicted of one count of oral copulation with a minor under the age of 16. (§ 288a, subd. (b)(2).) Imposition of sentence was suspended, and Pritchard was placed on five years probation and ordered to register as a sex offender.
In March 2010, Pritchard was charged with failure to register as a sex offender. (§ 290, subd. (b).) He filed a petition for writ of mandate to invalidate the 1988 registration order based on People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier).The People agreed that Pritchard was entitled to relief from mandatory registration under Hofsheier, but asserted that the trial court had discretion under section 290.006 to order him to register based on certain factual findings.
Agreeing with the People, the trial court vacated the 1988 mandatory registration order and conducted a hearing to determine whether Pritchard should be ordered to register under section 290.006. The trial court made the findings as required by that section and ordered Pritchard to register as a sex offender. Pritchard appeals.
DISCUSSION
No Abuse of Discretion in Ordering Registration
Pritchard contends that the trial court abused its discretion in ordering him to register as a sex offender because the order was not based on substantial evidence. We disagree.
In 2006, Hofsheier held that mandatory sex offender registration violated equal protection to the extent it required registration for oral copulation with a 16-year-old girl (§ 288a, subd. (b)(1)), but did not require registration for sexual intercourse with a girl of the same age. (Hofsheier, supra, 37 Cal.4th at pp. 1206-1207; see § 261.5.) Although the mandatory registration requirement was invalidated for the section 288a, subdivision (b)(1) offense, a defendant remained subject to discretionary registration. (Hofsheier, at pp. 1208-1209.) Later, Hofsheier was extended to invalidate mandatory registration for a violation of section 288a, subdivision (b)(2), the offense committed by Pritchard. (People v. Garcia (2008) 161 Cal.App.4th 475, 482, disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4.)
Under the discretionary registration statute, the trial court may order a defendant to register as a sex offender if it finds that he committed an offense "as a result of sexual compulsion or for purposes of sexual gratification." (§ 290.006.) The statute also requires the court to "state on the record the reasons for its findings and the reasons for requiring registration." (Ibid.)Consequently, 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." (Hofsheier, supra, 37 Cal.4th at p. 1197.) By requiring a statement of reasons, "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." (Ibid.)"[O]ne consideration before the court must be the likelihood that the defendant will reoffend." (People v. Garcia, supra, 161 Cal.App.4th at p. 485; People v. Thompson (2009) 177 Cal.App.4th 1424, 1431.)
As with all actions within the trial court's discretion, we may reverse 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 ordered appellant to register as a sex offender. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958; see Hofsheier, supra, 37 Cal.4th at pp. 1197-1198.)
Here, there was no abuse of discretion. The trial court made the requisite findings and statement of reasons by concluding that Pritchard committed the section 288a, subdivision (b)(2) offense as a result of sexual compulsion and for sexual gratification, and presented an unacceptable risk of reoffending.
The trial court stated that there was no question that the offense "was for sexual gratification or was a result of sexual compulsion." The trial court reviewed the transcript of the preliminary hearing of the 1988 conviction. It found that the offense "was for sexual gratification or was a result of sexual compulsion." It further found that the victim had gone to Pritchard's home to seek his help "because she was having trouble with her parents." The trial court emphasized that the purpose of the victim to seek advice from an adult she knew "says volumes" about the serious nature of the offense. The court further emphasized that the commission of the same sexual act a second time "was also of great importance in this determination. This was not a contemporary of hers, a few years older, she sought out . . . . This was a 41-year-old adult who felt--he felt, apparently, appropriately engaging in sexual activity with her. It isn't a situation where he had misgivings about it, considered that it might not have been the best response to a young girl who was having family problems, but indeed engaged in it a second time, as well."
The court concluded: "I never want to consider that people are incapable of changing or incapable of learning from their mistakes; but by the same token, I consider the second incident as a significant indicator that this conduct could be repeated. Under all the circumstances that I have touched upon in these comments taken from the preliminary hearing transcript, I think that the likelihood and potential for further offense warrants the discretionary registration under section 290.006."
Pritchard argues that there is no evidence he acted as the result of a sexual compulsion, and that sexual gratification standing alone removes all real discretion from the court because it is a purpose of virtually all sex crimes. But, the statute expressly authorizes a discretionary registration order based on a finding that the person acted "as a result of sexual compulsion or for purposes of sexual gratification." (§ 290.006, italics added.) Further, the age of the victim and the circumstances of the offense support a conclusion that Pritchard acted through sexual compulsion in the form of an irresistible or strong impulse to perform an improper sexual act.
Moreover, the trial court did not rest its order solely on this finding. The court made a further finding that there was a likelihood that Pritchard will reoffend. (People v. Garcia, supra, 161 Cal.App.4th at p. 485; People v. Thompson, supra, 177 Cal.App.4th at p. 1431.) As Pritchard argues, his advanced age may reduce the risk of reoffending, but the trial court's finding of some risk was based on the evidence and reasonable. Also, a court is required to consider all relevant information, including the likelihood of reoffending, but there is no requirement of an express finding that the defendant is likely to reoffend. (See Garcia, at pp. 483, 485; Thompson, at p. 1431.)
Clear and Convincing Evidence Not Required by Due Process
Pritchard contends that a section 290.006 discretionary registration order violates due process because it does not require that the findings be made by clear and convincing evidence. He argues that, although the sex offender registration statute is not considered punishment, a heightened standard of proof is required because sex offender registration is not a "mundane sentencing decision" and may have a severe impact on a defendant's life.
A person has the right to due process before being deprived of any liberty interest, and the standard of proof is an element of due process. (Santosky v. Kramer (1982) 455 U.S. 745, 754.) The standard of proof must be fair in light of the liberty interest of the individual, the governmental interest, and the risk of error. (Id. at pp. 754, 756, fn. 8; Mathews v. Eldridge (1976) 424 U.S. 319, 334-335.) Generally, proof by a preponderance of the evidence satisfies due process in situations which do not involve the imposition of criminal punishment. (See Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 253; Jones v. United States (1983) 463 U.S. 354, 367-368.)
We conclude that the preponderance of evidence standard satisfies due process requirements for a section 290.006 registration order in this case. The state's strong interest in protecting society from sex offenders outweighs the deprivation of liberty from a registration requirement.
It is established that sex offender registration serves an important and proper remedial purpose and is not "so punitive in fact that it must be regarded as punishment." (In re Alva (2004) 33 Cal.4th 254, 271 [sex offender registration not punishment for purposes of prohibition against cruel and unusual punishment]; People v. Castellanos (1999) 21 Cal.4th 785, 796 [sex offender registration was not punishment for purposes of ex post facto analysis].) Most recently, our Supreme Court rejected an argument that discretionary registration under section 290.006 improperly permitted imposition of heightened punishment based on findings of fact by a trial court rather than a jury. (People v. Picklesimer, supra, 48 Cal.4th at pp. 343-344). The court reiterated that "'sex offender registration is not considered a form of punishment under the state or federal Constitution . . . .'" (Ibid.)
Pritchard argues that sex offender registration can be more onerous to the registrant than punishment for the offense. We acknowledge that public opprobrium may be a factor in a registrant's life, but it has been held that the public notification requirements of sex offender registration do not constitute punishment for purposes of the Sixth Amendment. (People v. Presley (2007) 156 Cal.App.4th 1027, 1034-1035; see also Smith v. Doe (2003) 538 U.S. 84, 99 [public notification provisions of Alaska's sex offender registration law not punishment for ex post facto purposes].)
Moreover, Pritchard received heightened procedural safeguards. The findings were based on Pritchard's guilty plea and the transcript of the preliminary hearing. A guilty plea is an admission of every element of the offense and tantamount to a conviction after trial by jury (see People v. Jones (1995) 10 Cal.4th 1102, 1109), and the transcript of a preliminary hearing is a reliable part of the record which affords a defendant substantial procedural protections. (People v. Trujillo (2006) 40 Cal.4th 165, 177.)
Finally, an argument that clear and convincing evidence should be required has been rejected in the somewhat analogous situation of parole revocation. In People v. Rodriguez (1990) 51 Cal.3d 437, 441, the court held that the requirements of due process at a parole or probation revocation hearing do not include a heightened "clear and convincing" standard of proof.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Barry B. Klopfer, Judge
(Retired judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Superior Court County of Ventura
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.