Opinion
B318810
06-23-2023
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR HURTADO, Defendant and Appellant.
Mary Jo Strnad, 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, Senior Attorney General, Noah Hill and Kathy Pomerantz, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A476382 Roger T. Ito, Judge.
Mary Jo Strnad, 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, Senior Attorney General, Noah Hill and Kathy Pomerantz, Deputy Attorneys General, for Defendant and Respondent.
ADAMS, J.
Arthur Hurtado appeals from a trial court order denying his petition to terminate his lifetime sex offender registration requirement, pursuant to Penal Code section 290.5. Hurtado argues, and the People concede, that the trial court erred in finding Hurtado ineligible for relief. We reverse the trial court order and remand for further consideration of Hurtado's petition.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 1988, Hurtado pled guilty to one count of committing a lewd act upon a child in violation of section 288, subdivision (a). He admitted suffering two prior felony convictions within the meaning of section 667.5, subdivision (b). The trial court imposed an aggregate state prison sentence of four years. The conviction subjected Hurtado to a mandatory lifetime sex offender registration requirement. (Former § 290, subd. (a).) Hurtado was released from custody on March 12, 1990.
In December 2021, over 31 years later, Hurtado filed a petition to terminate the registration requirement, pursuant to section 290.5. The petition indicated Hurtado was a tier 2 offender and he had registered for at least 20 years. The prosecution filed a response objecting and asserting Hurtado was ineligible for relief because he was required to register for 29 years and 136 days and had, "at best," registered only 23 years and six months. The prosecutor attached a rap sheet with handwritten annotations, a computer printout with Hurtado's historical registration information, and a petition checklist. A box checked on the response form requested a hearing.
Under section 290.5, subdivision (a)(2), the district attorney may request a hearing on a petition "if the petitioner has not fulfilled the requirement described in subdivision (e) of Section 290, or if community safety would be significantly enhanced by the person's continued registration."
In February 2022, the trial court summarily denied the petition. The court issued a minute order stating: "The petitioner is not eligible for relief because his registration requirements tolled the 20 year period as required under PC 290.5 based on his subsequent incarceration. He has registered approximately 23 1/2 years. Because of [his] subsequent criminal violations, including parole violations, his total minimum registration period is 29 years and 136 days. Accordingly, his petition is summarily denied under Penal Code section 290.5(a)(2)(E)." The court ruled Hurtado could petition for relief on June 21, 2027.
Hurtado timely appealed.
DISCUSSION
"California law requires persons convicted of specified sex crimes against a child, including violations of section 288, to register as a sex offender while they live, work, or attend school in California. (§ 290, subds. (b), (c); [Citation].) Commencing January 1, 2021, Senate Bill No. 384 (2017-2018 Reg. Sess.) (Senate Bill 384) restructured the sex offender registration requirement, establishing three tiers of registration for sex offenders, primarily based on the offense of conviction, for periods of at least 10 years (tier one), at least 20 years (tier two), and life (tier three). (Stats. 2017, ch. 541, § 2.5; see § 290, subd. (d).) .... [¶] [Effective] July 1, 2021, Senate Bill 384 established procedures for a person to seek termination from the sex offender registry if the person meets certain criteria, including completion of the mandated minimum registration period. (§ 290.5, subds. (a)-(c).)" (People v. Thai (2023) 90 Cal.App.5th 427, 432.)
Under section 290.5, subdivision (a)(1), a tier one or tier two offender may petition the superior court for termination of the registration requirement following the expiration of the person's mandated minimum registration period. Hurtado was a tier 2 offender, and thus subject to a 20-year mandatory minimum registration period. (§ 290, subds. (c)(1), (d)(2)(A).) The minimum required registration period begins on the date of release from incarceration on the registerable offense. (§ 290, subd. (e).) However, the "minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration . . . except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period." (Ibid.)
"An appellate court reviews the trial court's ruling on a petition for termination from the sex offender registry for abuse of discretion. [Citation.] To establish an abuse of discretion, a defendant must demonstrate the trial court's decision fell outside the bounds of reasons, i.e., was arbitrary, capricious, or patently absurd. [Citation.] [¶] '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, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citation.] A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard. [Citation.]" (People v. Thai, supra, 90 Cal.App.5th at p. 433.)
Hurtado contends the trial court's calculation of a nine-year and 136-day tolling period was based on inaccurate information contained in his rap sheet, and a review of court records reveals periods of incarceration totaling six years five months and four days. The People do not address Hurtado's calculations, but concede that even if the trial court's tolling period calculation was correct, the extended minimum registration period had already expired. Indeed, if the tolling period was nine years and 136 days, the minimum registration period would have been extended from March 12, 2010 (20 years) to July 26, 2019 (29 years and 136 days). Hurtado's petition was not filed until December 2021.
We grant Hurtado's request that we take judicial notice of the records from his other criminal matters. Hurtado indicates the total of six years five months and four days is based on the combined sentences that were imposed. However, he argues that if presentence conduct credits awarded at sentencing are deducted, the total would be only five years, seven months, and 12 days. We need not adopt either of these figures as the People have conceded the trial court ruling was in error and we remand for further proceedings, at which the parties may further address the calculation of the tolled periods, if necessary.
The trial court's ruling that Hurtado was not statutorily eligible for relief was in conflict with the court's finding that the minimum registration period was 29 years and 136 days. The evidence in the record does not resolve this inconsistency. We reverse the trial court order and remand the matter for further consideration of the petition.
It is unclear how the prosecution or the court arrived at the conclusion that Hurtado had registered only 23 years and six months. The record also does not indicate what aspect of section 290, subdivision (e), or section 290.5, the 23 years, six months calculation was intended to address. The People do not attempt to justify the calculation on appeal.
DISPOSITION
The trial court order is reversed. The matter is remanded for further proceedings consistent with this opinion.
We concur: LAVIN, Acting P. J., EGERTON, J.