Opinion
C081377
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL KAY HUNT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F6380)
In this difficult case involving clearly deviant behavior by defendant Russell Kay Hunt who was convicted of stalking a female victim, we must determine whether evidence supports the trial court's finding that defendant committed the crime as a result of sexual compulsion or for purposes of sexual gratification. We conclude the finding is not supported by the record, and without it, the order imposing a lifetime sex offender registration requirement must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our description of the facts and procedural history of the case given our previously unpublished opinion. (People v. Hunt (Feb. 9, 2015, C073880) (Hunt).)
Portions of the factual and procedural background are taken from the previous opinion. (Hunt, supra, C073880.)
Sheryll Lemke first saw defendant at one of the karaoke clubs she frequented. They crossed paths but never established a relationship. In pursuit of a romantic relationship, defendant contacted Lemke through e-mails, Facebook messages, and personal contact at karaoke bars. Lemke found the messages disturbing and told defendant she was not interested in a friendship or a romantic relationship with him, but defendant continued to pursue her. He repeatedly sent packages to her home and to her previous employer. He also left gifts on Lemke's seat at a bar and on her car. Defendant wrote a song about Lemke's personal life based on a conversation he overheard and sent a letter to her former husband claiming Lemke had mental health issues and should not have custody of her children. Defendant also threatened to speak to Lemke's boss and get her fired. Throughout this period, defendant's goal was to make Lemke his wife.
A jury convicted defendant of stalking, stalking with a court order in effect, and contempt of court for disobeying a court order. (Pen. Code, §§ 646.9, subs. (a) & (b), 166, subd. (a)(4); counts 1-3.) Prior to sentencing, a court-appointed psychologist evaluated defendant and diagnosed him as suffering from a personality disorder not otherwise specified. The report did not identify a sexual compulsion and stated defendant's prognosis was fair. Defendant was sentenced to an aggregate term of four years eight months in state prison and was required to register as a sex offender under section 290.006. On appeal we reversed the registration order because the trial court had failed to state its reasons for requiring registration, and we remanded for further proceedings consistent with section 290.006. In all other respects, the judgment was affirmed. (Hunt, supra, C073880.)
Undesignated statutory references are to the Penal Code. --------
On remand, the trial court ordered defendant to register as a sex offender pursuant to sections 646.9, subdivision (d) and 290.006. Although defendant was "not your standard, roughshod, sexually compulsive guy," his stalking of Lemke was "as a result of sexual compulsion." The trial court reasoned the "whole rationale" for defendant's actions was to have a relationship with and marry Lemke, "which included a sexual relationship." He "staged" his compulsion with Lemke, seeking to "hav[e] power or control over her, trying to get into her life in any way possible." Defendant represented himself during trial, and, according to the trial court, he tried to woo Lemke during the proceedings by lining up questions so he could speak with her and then stopping to give her time to recoup. Moreover, there were similar prior uncharged circumstances with two other women, and the trial court had no doubt defendant "would . . . try[] to locate a subsequent victim." (See Evid. Code, § 1101, subd. (b).) Accordingly, defendant was "likely to reoffend." Defendant appealed.
DISCUSSION
Defendant contends the trial court erred in imposing lifetime sex offender registration because the record lacks evidence defendant's offense was motivated by a sexual compulsion or committed for sexual gratification. According to defendant, he was only emotionally obsessed with Lemke. We shall reverse.
Section 290 imposes mandatory sex offender registration for defendants convicted of specified crimes, which "may be characterized generally as sexual offenses committed by means of force or violence, violent offenses committed for sexual purposes, sexual offenses committed against minors, or offenses that involve the sexual exploitation of minors." (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 (Lewis).)
When, as here, a defendant is not convicted of one of these enumerated offenses, section 290.006 gives a trial court the discretion to order registration "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." (§ 290.006; see also § 646.9, subd. (d) [permitting a court to order a defendant convicted of section 646.9 to register as a sex offender under section 290.006].) Although the statute does not define "sexual compulsion," a court "may require lifetime registration if it finds the crime to have a sexual purpose," even if the crime was not a sexual offense. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198, overruled on other grounds by Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888.) For example, a trial court may impose lifetime registration for a burglary conviction if the trial court finds defendant entered with the intent of committing a sexual assault. (Hofsheier, at pp. 1197-1198.) A defendant's likelihood of committing future sex offenses is an important factor for the court to consider. (People v. Mosley (2015) 60 Cal.4th 1044, 1048 ["registration is justified by the defendant's risk of reoffense"]; see also Lewis, supra, 169 Cal.App.4th at p. 78.) A court must "state on the record the reasons for its findings and the reasons for requiring registration." (§ 290.006.)
The record does not support the conclusion that defendant was motivated by sexual compulsion or sexual gratification. As the trial court stated, the facts here "painted a picture of an unusual individual who was interested in establishing a relationship in a quiet way, establishing a spiritual relationship with [Lemke], trying to demonstrate to her that she -- he was her soulmate." Indeed, defendant never made any sexual overtures to Lemke, spoke in terms of a sexual relationship, or detailed what he wanted to do to her sexually. Rather, defendant was obsessively in love with her. Moreover, while the court-ordered psychological evaluation described defendant as having "difficulties in interpersonal relationships," there was no indication defendant suffered from sexual compulsion or disorder.
Defendant was not convicted of a sexual offense and while that fact does not foreclose the registration requirement imposed here, it is well to recall that "the purpose of sex offender registration is to keep track of persons likely to reoffend [thus] one of the 'reasons for requiring registration' under section 290.006 must be that the defendant is likely to commit similar offenses—offenses like those listed in section 290—in the future." (Lewis, supra, 169 Cal.App.4th at p, 78.) As noted earlier, "[t]he registerable crimes listed in section 290, subdivision (c) may be characterized generally as sexual offenses committed by means of force or violence, violent offenses committed for sexual purposes, sexual offenses committed against minors, or offenses that involve the sexual exploitation of minors." (Lewis, at p. 78.)
One can certainly imagine circumstances when even the most chaste interaction between a man and woman is motivated by a desire or hope for a sexual liaison. Indeed, whenever a man pursues a woman, the common understanding of human sexuality will lead many to suppose that sex fuels the pursuit. But speculation and ill-informed understandings are not enough. Imagination must be tethered to some evidence in the record that the crime supporting registration was "committed . . . as a result of sexual compulsion or for purposes of sexual gratification." That evidence is missing in the present case. Though experts were consulted, there was no expert testimony suggesting a sexual motivation for defendant's criminal actions. Although defendant's intention to marry Lemke may have implied a potential for a sexual relationship, there is no indication on this record that his crime stemmed from sexual compulsion or a desire to secure sexual gratification.
This is not to ignore the disturbing nature of his behavior or the evidence of prior, similar acts against other women. If stalking a member of the opposite sex were a registerable offense, it seems clear that defendant would be at a high risk of reoffending. But that is not the risk addressed by section 290.006. In the absence of evidence to support the trial court's finding that defendant's crime resulted from sexual compulsion or a desire for sexual gratification the registration order must be reversed.
DISPOSITION
The order requiring defendant to register as a sex offender is reversed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
RAYE, P. J. We concur: BLEASE, J. ROBIE, J.