Opinion
B318728
05-30-2023
THE PEOPLE, Plaintiff and Respondent, v. WAYNE EDWARD BURKE, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. KA040781. Victor D. Martinez, Judge.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
On November 17, 2000, defendant and appellant Wayne Edward Burke pled guilty to lewd and lascivious acts on a person under the age of 14 in violation of Penal Code section 288, subdivision (a), and felony criminal threats in violation of section 422. He was sentenced to five years in state prison and required to register as a sex offender.
Initially, defendant pled not guilty and the matter proceeded to trial. A jury convicted him, and he appealed. On June 15, 2000, we reversed the judgment for instructional error. (People v. Burke (June 15, 2000, B126972) [nonpub. opn.], at p. 7.) On remand, defendant pled guilty.
All further statutory references are to the Penal Code unless otherwise indicated.
Following his release from prison, defendant petitioned the trial court to terminate sex offender registration under section 290.5. The trial court denied his request, and defendant timely appealed. He raises three arguments on appeal: (1) the trial court's determination that community safety would be significantly enhanced by his continued section 290 registration is not supported by substantial evidence; (2) the trial court abused its discretion by setting the registration period at five years; and (3) the trial court's order violates his due process rights.
We affirm the trial court's order.
FACTUAL BACKGROUND
"Jane Doe testified that on June 9, 1998, while she was watching her nine-year-old brother, Frank, play on the sidewalk, [defendant], her neighbor, called her brother onto the porch of his home. [Defendant] grabbed Jane, who was 11, by the arm and pulled her onto the porch. He told her that she had looked sexy the day before, told her to touch his '"dick,'" and asked her to let him touch her '"pussy."' She refused his demand and request. He then rubbed her arm and the inner part of her thigh.
The witness testified under the name Jane Doe to protect her privacy.
"Jane's brother tried to pull Jane away from [defendant], but [defendant] pushed him onto the grass. Jane's brother ultimately pulled Jane away from [defendant]. Jane told her brother, '"Come on, Frank, let's go tell Mom."' As Jane and Frank were about to climb over the fence to return home, [defendant] remarked, "'If you tell anybody, I'll kill you guys.'" [Defendant] pulled Jane and her brother off the fence. Jane was frightened by the threat because the previous day [defendant] had shown her where he kept his shotguns.
"When Jane told a friend at school about the incident on the porch, Jane's friend told her that [defendant] had also told the friend 'nasty things' and had tried to rub her.
"On June 9, [defendant] also dragged Jane into his car and pulled her brother into the car as well. [Defendant] pulled Jane onto his lap and had her sit there as he drove.
"Crystal B., [defendant's] 17-year-old niece, testified regarding uncharged incidents of sexual misconduct by [defendant]. Crystal's testimony was admitted under Evidence Code section 1101, subdivision (b), to establish [defendant's] intent and under Evidence Code section 1108 to establish his propensity to commit lewd acts with children under 14. [¶] . . . [¶]
"In defense, [defendant] testified that he never complimented Jane about her clothing. He did not grab Jane, drag her onto the porch, or rub her leg. Apart from horseplay, he never touched Jane. He later testified that he once drove with Jane between his legs because she had asked him to teach her how to drive. He never threatened to kill Jane or her brother if they told what happened." (People v. Burke, supra, B126972, at pp. 2-3.)
Defendant also denied touching Crystal B. inappropriately. (People v. Burke, supra, B126972, at p. 3.)
PROCEDURAL BACKGROUND
I. Defendant's petition; matter is set for hearing
On September 23, 2021, defendant petitioned the trial court to terminate sex offender registration under section 290.5, subdivision (a)(1), as a tier 2 offender who had registered for 20 years (§ 290, subd. (d)(2)(A)). In support, defendant offered declarations from friends James Burk (Burk) and Kenneth Vargas (Vargas) Burk attested that he and defendant "went [metal] detecting in local parks. When you detect in parks, you inevitably get a horde of kids following you to see if you dig up any money. [Defendant], however, never showed any interest in these children." Vargas also declared that he and defendant "share the hobby of metal detecting" and visit parks and other places. No expert testimony was provided.
The trial court initially denied the petition on the grounds that defendant had not met the minimum registration period.
On January 3, 2022, defendant filed a motion to reconsider his petition to terminate sex registration on the grounds that the trial court had erroneously calculated the number of years he had registered. The People conceded that defendant was eligible to terminate registration, but objected to granting the petition and asked for a hearing pursuant to section 290.5, subdivision (a)(3), "because community safety would be significantly enhanced by [defendant's] continued registration."
On January 31, 2022, the trial court vacated its prior ruling denying defendant's petition and set the matter for a hearing.
II. The People's opposition
After the matter was set for hearing, the People filed a detailed opposition to defendant's petition. Tracking the factors set forth in section 290.5, subdivision (a)(3), the People noted that among many other disturbing details, defendant believed that his 11-year-old victim "'looked very sexy'" and he suggested that he and the victim play "'butt naked twister.'" He threatened to kill the victim and her brother if they told anyone. And he failed a polygraph test when asked about molesting Crystal B.
"If the district attorney requests a hearing, the district attorney shall be entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration. In determining whether to order continued registration, the court shall consider: the nature and facts of the registerable offense; the age and number of victims; whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); criminal and relevant noncriminal behavior before and after conviction for the registerable offense; the time period during which the person has not reoffended; successful completion, if any, of a . . . sex offender treatment program; and the person's current risk of sexual or violent reoffense, including the person's risk levels on [any] risk assessment instruments, if available." (§ 290.5, subd. (a)(3).)
Moreover, defendant's age in comparison to his victim's age weighed heavily against him: He was 20 years older than his victim. Furthermore, there was no evidence defendant knew the victim prior to the first incident inside of his vehicle.
In addition, defendant was a former state correctional officer who was fired for selling methamphetamine. And, he sexually assaulted Crystal B. from when she was five to eleven years old.
III. Trial court order
On February 25, 2022, the trial court denied defendant's petition to terminate registration. In so ruling, it addressed each factor identified in section 290.5, subdivision (a)(3): "First is the nature of the registrable offense, underlying conduct. Underlying conduct in this case involves two separate incidents, one where the defendant is accused of grabbing an 11-year-old girl, taking her in his car, driving her away from her home without permission of her parents, without knowledge of anybody else and having her sit in his lap while they were driving.
"Then the second incident where he is alleged to have grabbed that same 11-year-old girl, dragged her onto his porch, asked her to touch his penis and touched her vagina and her little brother had to pull her away. Both of those are extremely disturbing incidents. The age of that victim, that being 11 years old, the fact we're dealing with one-basically a kidnapping where he took her away from her parents and then the actual using force to drag her up onto the porch. Then on top of that, while it was occurring, they became aware of a-the second child molestation of his niece at 17, which was introduced as [Evidence Code section] 1108 evidence during the trial. So we have two separate victims both underage and both involving child molestation.
"Whether the victim, the neighbor, was a stranger at the time of the offense, I don't know. I can agree with the defense if they're neighbors, I don't know you would call them a stranger. Not sure they were close, but I certainly don't think that factor 3-but factors 1 and 2 certainly lend towards denying the petition.
"Then we have factor 4, criminal, non criminal behavior before and after the registrable offense. The defendant has lived, for all intents and purposes for the court, a law-abiding life. I agree with the defense on this point. I cannot speculate that maybe he's out there committing offenses that haven't been reported. You can do that with any factor, and unless there's evidence of that, the court cannot consider the fact that maybe there's victims throughout who haven't come forward, and there may be, but I certainly can't consider that if there's no evidence of that. We can't put suspicions or speculation as far as the court to make a ruling.
"He's also, as far as factor 5, it's been 20 years since the underlying offense is alleged to have occurred.
"Factor 6 is whether he's received any sex offender treatment. There's been no evidence that he received any sex offender treatment, and as pointed out by the People, not only has he not received any sex offender treatment, he doesn't believe he needs to receive sex offender treatment. He doesn't acknowledge he did anything wrong. He has two child victims that he completely denies and has done nothing whatsoever, and not only that, continues-I don't know what to make of declarations when you're trying to get off the sex offender registry and you're indicating you're hanging out in parks with children and the children are coming to you as you're doing metal detecting and that is evidence that you're not attracted to children when you're hanging out at parks with children. I don't know how to make that-but it's kind of disturbing to the court that that is the declaration that's being presented is his friend saying he hangs out in parks with children. That is disturbing to the court, especially when we're asking to let the sex registration off which would give him greater access to places with children and to be able to have even closer contact with children.
"There also, last factor is related to any assessment instruments. The court has none available so there's nothing for the court to determine.
"These balancing issues are the most difficult for the court in order to make. I understand the burden sex registration can have on an individual and how it can affect their life, but you're also dealing with the need and protection of our community.
"In this particular case, based on the nature and facts of the registrable offense, age and number of victims in this matter, I do not believe at this point terminating the defendant's sex registration is warranted."
The trial court then went on to determine whether to continue registration for one to five years, pursuant to section 290.5, subdivision (a)(4). After entertaining oral argument, the trial court stated: "[I]f I had the option to just continue lifetime registration, that is probably what I would order today, but the statute only allows me to deny it for a certain period of time based on the underlying nature and victims in this matter." It ultimately made "the denial for five years from today's date."
DISCUSSION
I. Relevant law
Prior to January 1, 2021, a conviction under section 288, subdivision (a), required lifetime registration as a sex offender. (Former § 290, subds. (b) &(c)(1).) Section 290 now requires a tier two sex offender convicted under section 288, subdivision (a), to register as a sex offender (§ 290, subds. (b) &(c)(1)) for 20 years after release from incarceration (§ 290, subd. (d)(2)(A)). As of July 1, 2021, section 290.5 allows a tier two sex offender to petition for termination from the sex offender registry following the expiration of the minimum registration period under section 290, subdivisions (b) and (c)(1). (§ 290.5, subd. (a)(1).)
The People may request a hearing on the petition to terminate registration "if community safety would be significantly enhanced by the person's continued registration." (§ 290.5, subd. (a)(2).) "In determining whether to order continued registration, the court shall consider" the seven factors identified in footnote 4, supra. (§ 290.5, subd. (a)(3).)
"If termination from the registry is denied, the court shall set the time period after which the person can repetition for termination, which shall be at least one year from the date of the denial, but not to exceed five years, based on facts presented at the hearing. The court shall state on the record the reason for its determination setting the time period after which the person may repetition." (§ 290.5, subd. (a)(4).)
The People must prove by a preponderance of the evidence that community safety would be significantly enhanced by requiring continued sex offender registration. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, 1305; People v. Esparza (2015) 242 Cal.App.4th 726, 741; People v. Flores (2014) 227 Cal.App.4th 1070, 1076; Evid. Code § 115.)
"An appellate court reviews the trial court's ruling on a petition for termination from the sex offender registry for abuse of discretion." (People v. Thai (2023) 90 Cal.App.5th 427, 433.) "'The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence.'" (Ibid.)
When looking for substantial evidence, we "'view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "'In reviewing the record to determine the sufficiency of the evidence [we] may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.' [Citation.]" (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
The testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'"To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inference or deductions."'" (People v. Barnes (1986) 42 Cal.3d 284, 306.)
"A trial court abuses its discretion when its factual findings are not supported by the evidence." (People v. Thai, supra, 90 Cal.App.5th at p. 433.)
II. Analysis
Applying these legal principles, we readily conclude that the trial court's finding that community safety would be significantly enhanced by defendant's continued registration is supported by substantial evidence. As the trial court expressly noted, "the nature and facts of the registerable offense" (§ 290.5, subd. (a)(3)) were "extremely disturbing." The underlying conduct included two separate incidents, one where defendant grabbed an 11-year-old girl and took her in his car and forced her to sit in his lap, and the other where he grabbed that same girl, dragged her onto his porch, and asked her to touch him inappropriately. Moreover, the victim in this case was 11 years old; but there was also evidence of a second underage victim (Crystal B.). Making matters worse is the fact that defendant, even after 23 years, refused to acknowledge his guilt and never completed a sex-offender treatment program. (Contra, People v. Thai, supra, 90 Cal.App.5th at p. 434 [prosecution failed to demonstrate that the defendant was a risk to the community because (1) there was only one "lewd act [committed] on one 12-year-old victim," (2) there was no evidence that the defendant "refused to complete counseling," and (3) the defendant's comments "indicated remorse and a willingness to participate in a treatment program"].) Finally, as defense counsel conceded during the argument on the motion, "because of his hobbies, [defendant] has access to children."
Taken together, this evidence overwhelmingly supports the trial court's order. To the extent defendant asserts that the evidence proves otherwise, he is essentially asking us to substitute our opinion as the trier of fact. For the reasons set forth above, we cannot, and will not, do so.
While there may not be evidence to support all the factors set forth in section 290.5, subdivision (a)(3), defendant offers no legal authority that holds that evidence of each factor must be present before a trial court may deny a petition to terminate sex offender registration.
Relying heavily upon People v. Rasmuson (2006) 145 Cal.App.4th 1487 (Rasmuson) and In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), defendant contends that he does not pose a threat to society. These cases are easily distinguishable. In Rasmuson, a defendant who was incarcerated as a sexually violent predator (SVP) appealed from a trial court order denying his petition for conditional release pursuant to Welfare and Institutions Code section 6608. (Rasmuson, supra, at p. 1491.) The Court of Appeal reversed the trial court order on the grounds that it was not supported by substantial evidence. After all, in support of his petition, the defendant had presented the testimony of eight mental health professionals, who "uniformly agreed that [he] would not be a significant danger to the community if conditionally released and did not present a 'serious and well-founded risk' of reoffending." (Id. at p. 1508.) "Against this weighty and impressive evidence, the People failed to present a scintilla of evidence that [the defendant] would likely reoffend." (Ibid.)
In finding error, the appellate court noted: "While the trial court was not required to follow the essentially unanimous and uncontradicted recommendations of [the defendant's] eight expert witnesses [citation], it could not arbitrarily disregard those recommendations. [Citation.] But the trial court made no findings of fact or gave any indication as to why it chose not to accept the opinion of any of [the defendant's] experts. It failed to indicate whether there were any inaccuracies in the information on which they relied in reaching their conclusions. It is unlikely that the trial court would find each of the eight experts incredible or their opinions flawed by misinformation." (Rasmuson, supra, 145 Cal.App.4th at p. 1509.) In essence, "to deny [the defendant's] petition was tantamount to concluding that no SVP who has ever committed a prior serious sexual offense . . . can be conditionally released. Such a conclusion would present serious constitutional issues." (Ibid.)
Put simply, the largely uncontroverted, "weighty" evidence set forth in Rasmuson is not present here.
In Lawrence, the petitioner was convicted of murdering her lover's wife. (Lawrence, supra, 44 Cal.4th at p. 1190.) After many years and numerous hearings before the Board of Parole Hearings (the Board), the Board found the petitioner suitable for parole. (Ibid.) The Governor reversed the Board's decision, and the petitioner filed a petition for writ of habeas corpus in the Court of Appeal. (Ibid.) The Court of Appeal issued the writ, vacating the Governor's reversal and reinstating the Board's grant of a parole release. (Ibid.) The People sought review in the Supreme Court.
Our Supreme Court agreed with "the Court of Appeal that the record fail[ed] to support the Governor's conclusion that [the] petitioner remain[ed] a current danger to public safety." (Lawrence, supra, 44 Cal.4th at p. 1191.) In reaching this decision, the Supreme Court found that the petitioner had "'express[ed] deep remorse for what she had done and why she had done it.'" (Id. at p. 1222.) It also determined that the Governor's conclusion that the petitioner "ha[d] serious psychiatric problems" and therefore posed an "unreasonable risk of danger to the public" was unfounded. (Id. at p. 1223.) Finally, while the Supreme Court acknowledged "the gravity of the commitment offense," it found no "evidence supporting the conclusion that [the] petitioner continue[d] to pose a threat to public safety." (Id. at p. 1225.)
Here, in contrast, the People presented evidence that defendant still poses a risk to public safety. Unlike the petitioner in Lawrence, where there was no indication that she would reoffend, here there is such evidence. Defendant is not remorseful and he has not received counseling. And, given that he still "hang[s] out at" parks, where children are present, defendant's continued registration is appropriate.
Defendant further argues that the trial court abused its discretion in setting the repetition period at five years. We are not convinced. The trial court detailed its reasons for denying defendant's petition. It then indicated that, based upon these factors, if it could, it would have required lifetime registration. Under these circumstances, setting the repetition period at five years does not constitute an abuse of discretion.
Finally, defendant argues that "[t]his court should reverse the trial court's denial of [his] section 290.5 petition because this decision violated [his] right to due process." (Bolding omitted.) At the risk of sounding redundant, the trial court did not err. Its order is supported by the overwhelming evidence set forth above. It follows that defendant's constitutional rights were not violated.
The People contend that because this argument was not raised below, it has been forfeited on appeal. We disagree. As defendant points out in his reply brief, there was no forfeiture because the alleged due process violation is "'"an additional legal consequence of the [trial court's] asserted error."'"
DISPOSITION
The order denying defendant's petition to terminate sex offender registration is affirmed.
We concur:, LUI, P. J. . HOFFSTADT, J.