Opinion
C097757
11-20-2023
THE PEOPLE, Plaintiff and Respondent, v. JERRY HAMMON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 22CR1367)
Duarte, J.
In 1993, a jury found defendant Jerry Hammon guilty of six counts of committing a lewd and lascivious act with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) The jury also found true defendant committed the crimes while occupying a position of special trust as a foster parent. (§ 1203.066, subd. (a)(9).) The trial court sentenced him to 14 years in state prison. His conviction required him to register as a sex offender for life under former section 290.
Undesignated statutory references are to the Penal Code.
Following a change in the sex offender registration scheme in 2021, defendant was classified as second-tier offender and required to register for a minimum of 20 years. (§ 290, subd. (d)(2)(A).) In May 2022, defendant filed a petition to terminate sex offender registration, stating he had satisfied the minimum registration requirement. (§ 290.5) The trial court denied the petition, telling defendant he could file a new petition after 18 months.
Defendant argues on appeal that the trial court erred in denying his petition. He claims the evidence was insufficient to establish that community safety would be increased by requiring defendant to register and the trial court misconstrued the burden of proof. We agree the evidence presented was not sufficient to support the trial court's order and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Petition to Terminate Sex Offender Registration
In his May 2022 section 290.5 petition, defendant noted he had been registered as a sex offender for at least 20 years and was otherwise eligible for relief. The local sheriff's office filed a checklist indicating defendant was eligible to petition for termination of the registration requirement and had no failure-to-register convictions.
In response, the prosecution argued community safety would be significantly enhanced by defendant's continued registration. In purported support of its argument, the prosecution submitted an August 2022 investigator's report noting that defendant's criminal history was limited to the underlying sex crimes and a 1970 arrest for vehicle theft. The investigator further noted that defendant had denied his sexual crimes prior to the trial, even though defendant "openly discussed his sexual misconduct with the victim" during a pretext phone call. Defendant now claimed that he admitted to what he did and felt remorse, although he did not admit to any sexual misconduct before the victim was a teenager. Defendant had lived in the same home for 18 years and was now a retired handyman.
As we later explain, the prosecutor may oppose such petition by showing community safety would be significantly enhanced by requiring continued registration. In doing so, the prosecution has the burden of producing evidence establishing that requiring continued registration will appreciably increase society's safety. (See § 290.5, subd. (a); People v. Thai (2023) 90 Cal.App.5th 427, 432 (Thai).)
The prosecution also submitted a police report prepared in 1993 describing defendant's repeated sexual misconduct with the victim. The report stated that defendant started touching her genitals soon after she moved into the home at age 12. The two had intercourse at least 30 times and performed oral copulation on each other at least 20 times. The victim eventually moved out in 1991, and she told her new foster family about the abuse. Defendant visited her at least once in her new home and had intercourse with her. During a recorded call, defendant agreed he had repeatedly had sex with the victim beginning when she was 13 years old. When police subsequently asked him about that call, he denied having sex with the victim.
The prosecution also provided the preliminary hearing transcript, the charging documents, the clerk's minutes with the jury verdicts, and the probation officer's report. Defendant admitted to the probation officer that he had been sexually attracted to the victim despite her age, and he had sexual intercourse with the victim at least five times.
Defendant filed a reply arguing he had successfully served his sentence and completed parole without any violations, as well as completed a sex offender counseling program. He filed multiple declarations describing his efforts to give back to the community and help his neighbors. He attached a Static-99R showing he was a below-average-risk offender at the time of his release from prison and was now a very low-risk offender. Defendant argued he had learned from his mistakes and demonstrated his commitment to remain free of sex offenses, and therefore current community safety would not be significantly enhanced by requiring him to continue registering.
At the December 2022 hearing, defendant argued he had been released from prison 22 years ago and had become an asset to the community. His crimes were a onetime offense, with one victim who was known to defendant, making him less of a risk to the community. He had not offended again, including with his own biological daughters. The prosecution responded that defendant took advantage of a position of trust and abused his foster daughter for a prolonged period. There was no evidence he had spent time with children since his release, and continued registration was appropriate and would protect the community. Defendant argued it was speculative to assume the registration was a factor in his decision to not reoffend, especially since he would face the risk of returning to prison if he did so.
The trial court denied defendant's petition, finding community safety would be significantly enhanced by defendant's continued registration. While acknowledging that defendant had made progress in the right direction and the victim was not a stranger, the court focused on the facts of the offense. Defendant had been in a position of trust with the victim, who, as a foster child, was particularly vulnerable. Although the crimes had happened long ago, defendant had initially denied any misconduct, even when confronted with the pretext call. The court was "concerned that despite [defendant]'s declarations there may still be a risk to public safety" if the registration requirement was lifted. The court directed that defendant could file another petition in 18 months.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his petition. He argues (1) the court misunderstood the burden of proof, and (2) the evidence was insufficient to establish that community safety would be significantly enhanced by requiring him to continue to register. Although the prosecution presented evidence of the seriousness of defendant's crimes, defendant argues the prosecution failed to present sufficient evidence to show he continues to present any significant danger to the community today and in the future. We agree.
Prior to 2021, California required those convicted of certain sex crimes to register as sex offenders for life, as long as they live or work in California. (§ 290.) Section 290 now provides a tiered system requiring different lengths of registration depending on the offense. Those who, like defendant, are convicted of violating section 288, subdivision (a), are considered tier-two offenders, meaning they must register for a minimum of 20 years. (§ 290, subd. (d)(2)(A).)
After being registered for the minimum number of years, a defendant may file a petition for termination from the sex offender registry on or after their next birthday after July 1, 2021. (§ 290.5, subd. (a)(1).) The prosecution may request a hearing on the petition if "community safety would be significantly enhanced by the person's continued registration." (Id., subd. (a)(2).) In opposing a petition on such grounds, the prosecutor is "entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration." (§ 290, subd. (a)(3).) As such, the prosecution has the burden of producing evidence "establishing that requiring continued registration appreciably increased society's safety." (Thai, supra, 90 Cal.App.5th at p. 432.)
"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 Management Board-certified sex offender treatment program; and the person's current risk of sexual or violent reoffense, including the person's risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available." (§ 290.5, subd. (a)(3).)
The determination that community safety would be significantly enhanced by requiring continued registration must be proven by a preponderance of the evidence. (Evid. Code, § 115 [unless otherwise stated by a statute, the required burden of proof is preponderance of the evidence]; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, 1305 [applying the preponderance of the evidence standard].) We review for abuse of discretion a trial court's denial of a section 290.5 petition. (Thai, supra, 90 Cal.App.5th at p. 433.)
In Thai, the defendant pleaded guilty of violating section 288, subdivision (a) after he masturbated a 12-year-old boy who was not a stranger. More than 23 years later, the defendant filed a section 290.5 petition and provided evidence that he had participated in counseling and had no criminal history since the crime. The prosecution opposed the petition, arguing the facts of the underlying crime were "particularly egregious," with the defendant taking advantage of the 12-year-old victim and (despite defendant's guilty plea) showing no remorse after the crime. The defendant responded that there was no evidence that he was currently a danger, meaning the prosecution had failed to meet its burden of proof. The trial court denied the petition, reasoning the crime was egregious and the defendant had taken advantage of a position of trust. (Thai, supra, 90 Cal.App.5th at pp. 430-431.) The appellate court reversed, concluding the trial court had abused its discretion because the prosecution had failed to produce evidence establishing that "terminating the registration requirement considerably raised the threat to society because [the 64-year-old defendant] was currently likely to reoffend." (Id. at p. 433.) Assuming the underlying crime was egregious, "those facts alone do not demonstrate [the defendant] was a risk to the community over 24 years later." (Id. at p. 434.)
Similarly, here the prosecution presented only evidence regarding the seriousness of the crimes of registration. It is true that the evidence showed that defendant took advantage of a position of trust to repeatedly victimize his foster daughter, and that he denied his crimes to police even when confronted with his admissions during the pretext call. He was convicted of those crimes in 1993, served his time in prison for them, and has lived as a registrant without violations for over 20 years. However, as we have explained above, the law requires proof that community safety would be significantly enhanced by requiring continued registration (§ 290, subd. (a)(3)) and requires the prosecution to establish that requiring continued registration appreciably increased society's safety (Thai, supra, 90 Cal.App.5th at p. 432). In making this determination, the court is required to consider not only the nature of the underlying offenses but also specifically the number of victims (here, one) and age (here, 12 and older) and status as a stranger (here, not a stranger). Other mandatory considerations are defendant's criminal and otherwise problematic behavior before and after conviction for the registerable offense (here, none), the time period during which defendant has not reoffended (here, over 20 years) and successful completion of a qualifying sex offender treatment program (evidenced here) as well as the risk assessment (here, very low). (See § 290.5, subd. (a)(3).) In the instant case, these factors all weigh against the finding of significant enhancement of community safety under the required test. As in Thai, here there was no evidence that "terminating the registration requirement considerably raised the threat to society because [defendant] was currently likely to reoffend." (Thai, supra, 90 Cal.App.5th at p. 433.) Simply put, insufficient evidence supports the trial court's determination and, for that reason, the resulting ruling was an abuse of discretion and must be reversed.
The People implicitly acknowledge the lack of sufficient evidence but ask us to remand the matter (rather than reverse) to provide them with "the opportunity to present evidence other than the facts of [defendant's] underlying crimes . . . to support his continued registration." They point to no authority that would entitle them to a second evidentiary hearing after a reversal for insufficient evidence on appeal, and we know of none. As defendant points out in reply, although remand might be appropriate if only the trial court's legal analysis were lacking, it is not appropriate where the People also (admittedly) failed to meet their burden of proof, as happened here.
As in Thai, "[o]ur decision today stands for the sole proposition the prosecution failed to establish with reasonable, credible, and solid evidence 'community safety would be significantly enhanced' by requiring [defendant's continued registration].... In short, the prosecution failed to meet its burden as required by the statute. Therefore, the trial court abused its discretion by denying [defendant's] petition. [¶] The order is reversed." (Thai, supra, 90 Cal.App.5th at p. 435.)
We reverse the trial court's order.
DISPOSITION
The order denying defendant's section 290.5 petition is reversed.
We concur: Hull, Acting P. J., Keithley, J.[*]
[*]Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.