Opinion
H050202
12-18-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVEN JUHOS, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C2112448
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
Defendant Steven Juhos appeals after the trial court denied his petition to terminate his sex offender registration requirement. (See Pen. Code, § 290.5.) The court found that defendant's continued registration would significantly enhance community safety and ordered that he may not file another petition for five years.
The record on appeal includes documents in which defendant's first name is also spelled as "Stephen."
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court abused its discretion in denying his petition because there was no evidence to support a finding that community safety would be significantly enhanced by requiring continued registration. Alternatively, he argues that the court erred in ordering a five-year period, instead of a one-year period, before he can petition again. Lastly, defendant contends that the court's order denied him due process.
For reasons that we will explain, we will affirm the order.
II. BACKGROUND
As defendant was convicted by plea, our summary of his offenses is taken from the probation report, which was based on police reports.
In 1983, law enforcement received reports that defendant had molested his eightyear-old adopted daughter and two 13-year-old boys. The mother of one of the boys told police in August 1983 that her son had worked part-time for defendant and had spent the night at defendant's residence in February 1983. The boy told his mother that defendant repeatedly asked to sleep with him. The boy declined and slept on the floor. However, the boy was awakened in the middle of the night when defendant put his hands down the back of the boy's pants. The boy told defendant to stop several times before defendant complied. The boy's mother reported that when her son had spent the night, defendant's eight-year-old daughter had been sleeping with defendant in the nude.
At the time of this incident, defendant had been renting a room in a residence. When the owner of the residence was subsequently interviewed by the police, she indicated that defendant and his daughter had lived with the owner for several months. The owner reported that defendant and his daughter slept in the same bed and took baths together.
The police contacted defendant's daughter, who confirmed that defendant had molested her. He "digitally manipulated her vagina" on the previous day. Defendant slept in the nude with her, took showers and baths with her, and had her look at books with pictures of naked people. He also had her touch his penis, put his penis in her mouth, and masturbated in front of her. Defendant tried to put his fingers in her vagina but was unable to do so because it was painful to her. Defendant also unsuccessfully attempted to put his penis in her vagina. Defendant told her not to tell anyone about this conduct. The daughter reported that the molestation started "quite some time ago."
After he was arrested, defendant acknowledged that he took baths with his daughter and that he did not wear clothes when they slept in bed together. He stated that she may have learned how to act in a sexual fashion with him from looking at pornographic books with him. Defendant stated that she had put his penis in her mouth, that she wanted to do this, and that he never forced her to do anything. He also stated that he had her rub his penis numerous times and that he had masturbated in front of her. Defendant admitted that he had "pat[ted]" her vagina. He claimed that when he "kissed her vagina," she told him it "felt good." Defendant denied penetrating her vagina with his penis or fingers but admitted "digitally manipulating" her vagina. Defendant claimed that he never made his daughter do anything that she did not want to do and that he did not know that what he was doing was against the law.
Regarding the boy who had spent the night, defendant indicated to the police that he had been drinking and was not sure if he had put his hand down the boy's pants. He admitted masturbating in front of the boy on one occasion.
Defendant also admitted to rubbing the buttocks of a second boy, who was the son of the owner of the residence where defendant had rented a room. The police contacted the boy, who was 13 years old. The boy reported that in May 1983, he was watching television with defendant when defendant rubbed the boy's back, put his hand down the back of the boy's pants, and rubbed the boy's buttocks. The boy told him to stop. The boy stated that the same incident also occurred two weeks prior and that he did not tell his mother because he was embarrassed.
B. The Convictions, the Probation and Psychiatric Reports, and the Sentence
On September 20, 1983, defendant pleaded guilty to two counts of lewd act with a child under the age of 14 (§ 288, subd. (a) (section 288(a))) and misdemeanor violation of section 647, subdivision (a).
According to the probation report, defendant, who was 28 years old at the time, admitted "full responsibility" and indicated that the police reports were generally accurate. He told the probation officer that his conduct with his daughter was the result of him attempting to teach her about sexual matters and that it evolved into sexual contact. Defendant told the probation officer," 'She eventually became a girlfriend and then a wife[.]'" He reported that he was "drinking so much at that time." Defendant also reported having "sexual contact" with a woman at the time the molestations were occurring. Defendant stated that he had been involved in psychotherapy through Parents United and with private therapists since his arrest. Regarding the boy who had slept overnight, defendant "could not explain his sexual conduct toward" the boy. Regarding the other boy, defendant stated that he had been drunk and that he did not know how to "properly" show that "he wanted to get close to" the boy.
A section 288.1 report by a psychiatrist was filed prior to sentencing. The psychiatrist interviewed defendant on December 12, 1983. Defendant previously lived in the same apartment complex as the mother of his adopted daughter. The mother had not been able to provide adequate care, and the daughter had been in and out of foster homes. The daughter's parents agreed to allow defendant to legally adopt her.
Section 288.1 states in part: "Any person convicted of committing any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist . . . as to the mental condition of that person."
Defendant indicated to the psychiatrist that he had been molesting his daughter since she was about six years of age. He admitted that the conduct would have continued" 'probably for a while'" if the police had not investigated him. Defendant reported that most of the time he was under the influence of alcohol during the incidents. He did not believe his conduct was child molestation because he never used force. Defendant admitted that he attempted intercourse with his daughter on one occasion. He also acknowledged that he developed a boyfriend/girlfriend relationship with her rather than a parent/child relationship. When asked by the psychiatrist about how he felt, defendant stated that he" 'totally screwed up'" and that he hoped he would get another chance to have an appropriate father/daughter relationship. Defendant reported being in a serious relationship since September 1983 with a woman he had known for two years. He stated that he was "not involved in AA and still drinks socially."
The psychiatrist observed that although defendant denied using force, it had been reported that he cautioned his daughter about talking about their relationship with anyone else. The psychiatrist indicated that defendant's explanation for his behavior was that he was "attempt[ing] to gain comfort and closeness to someone else in a grossly inappropriate fashion." The psychiatrist determined that defendant "does not deny accountability for his behavior, and seems appropriately empathic with respect to [his daughter's] feelings and responses. He has engaged himself in appropriate psychotherapy, not only privately but also with Parents United at this time.... He deeply intends to continue to work toward reunification at some point in the future with her. He also hopes to continue to be able to have contact with her, both through visits and in therapy sessions until that time arrives."
The psychiatrist determined that defendant had a "serious drinking problem" since he was a teenager, that it was implicated in his misconduct with his daughter and one of the boys, and that "he would gain some benefit from involvement with AA."
The psychiatrist concluded that defendant was suffering from pedophilia and that his "[b]ehavior in this regard is increased in likelihood when under the influence of alcohol." Therapy "has provided some benefit for him," and "[t]his improvement is anticipated to continue." The psychiatrist further concluded: "I do not consider [defendant] as being of danger to the health and safety of others at this time as long as he is under the rigid jurisdiction of [the] probation department. If in the community, he would of necessity, be required to continue actively in psychotherapy. I would also strongly recommend attendance at AA as a condition of probation. (The minimization by [defendant] of this as a factor in his psychopathology cannot be stressed enough.) I would also agree with [another doctor's] comment as to a requirement of probation being that [defendant] not be in the presence of children under the age of fourteen by himself at this time. [¶] Obviously I have a great deal of reservations with respect to [defendant] because of the longevity of his behavior with respect to his daughter and the intensity of the impairment which led to this involvement. However, he has indicated some significant improvement since involvement in therapy and without any previous criminal record, it would seem that given an opportunity to work therapeutically as well as with AA, that he could continue his growth and development psychologically."
In January 1984, imposition of sentence was suspended and defendant was placed on probation for five years with various terms and conditions, including that he serve one year in jail. The jail term was stayed until March 7, 1984. Other conditions of probation included that defendant participate in alcohol counseling, continue participating in Parents United, continue therapy with his psychologist, and not frequent places where children congregate.
On our own motion, we augment the record to include the minutes from the sentencing hearing on January 19, 1984 in Santa Clara County Superior Court case No. 90126.
C. Defendant's Petition to Terminate Sex Offender Registration
On September 17, 2021, nearly 38 years after his convictions, defendant filed a petition to terminate his sex offender registration requirement. He was not in custody or on probation at the time. According to his petition, law enforcement had designated him to be in tier two of the registration system, he had registered for at least 20 years, and there were no pending charges that could extend his registration requirement or change his tier. Defendant was 66 years old at the time he filed the petition.
On September 23, 2021, law enforcement filed a response indicating that defendant was eligible for registration termination.
On November 19, 2021, the prosecutor filed a response, objecting to termination of defendant's registration and requesting a hearing. The prosecutor contended that "[c]ommunity safety would be significantly enhanced by [defendant's] continued registration."
D. Victim's Letter Requesting Continued Registration
On January 24, 2022, defendant's daughter filed a letter requesting that defendant continue to be required to register as a sex offender. She detailed defendant's abuse, indicated that it had occurred for four years, and described the long-lasting impact that it had on her. She also indicated that on one occasion when her friend stayed overnight, defendant was together with the friend in the bed and would not allow his daughter in the bed. When she was 17 years old, she asked defendant "why he did the things he did to" her. She stated that "he told me because he wanted to raise me and marry me. There was no remorse at all from [defendant] it was to him as if this is something people do." In her letter to the court, the daughter, who was then in her 40's, indicated that she was finally healing. She stated that defendant was a "monster," had a "sickness that is untreatable," and that terminating his registration requirement was "giving him a pass to potentially do this to more children." She contended that to protect children, parents had "a right to know who [defendant] is and what he is capable of doing."
E. Subsequent Briefing by the Parties
1. Defendant's Memorandum in Support of Petition to Terminate Registration
On January 28, 2022, defendant filed a memorandum of points and authorities in support of his petition to terminate registration. He contended that he had lived in the community for over 38 years without committing a sexual offense or suffering any other conviction. Defendant stated that he had been married and employed. He also contended that he had "successfully completed . . . court-ordered sex offender treatment programs, psychotherapy, and family counseling." (Fns. omitted.) Defendant argued that there was no evidence that he presented an elevated risk of reoffending and no evidence that his continued registration would significantly enhance community safety.
To support his contention that he had "successfully completed . . . court-ordered sex offender treatment programs," defendant provided letters from a licensed psychologist. In a March 1984 letter, the psychologist indicated that he had been treating defendant in psychotherapy on a weekly basis since September 1983. Defendant had shown "perseverance" and attended therapy regularly. According to the psychologist, defendant also saw another therapist weekly, and he attended therapy at "Parents United." The psychologist characterized defendant's therapy as "intense" and that it came "close to the type of program that exists at Atascadero State Hospital." The psychologist believed defendant was "determined to change." In a September 1984 letter, the psychologist reported that defendant's "perspicacity at doing the assignments in therapy is to be commended. He has worked very diligently to reduce sexual feelings toward his daughter." Further, the psychologist found that defendant's "deviant sexual response remains very low, and his socially acceptable, legal sexual response continues to be in a healthy range." The psychologist believed that "[i]n light of [defendant's] regular attendance at Parents United, and counseling with two different therapists," defendant was "a good candidate for a modification in his sentence." In a June 1985 letter, the psychologist indicated that he had continued to see defendant weekly for "intensive psychotherapy." The psychologist stated that defendant had "worked in therapy more intensively than any other client [that the psychologist] ha[d] treated." Defendant was now married.
Defendant also provided letters from a licensed marriage, family, and child counselor. In a November 1983 letter, the counselor reported that defendant had been in weekly therapy sessions since September 1983. The counselor also stated that defendant was "eager and cooperative in therapy sessions, readily pays his fees, always thanks me for the help, and offers to fix my car or help me in return." The counselor believed this was "not a manipulative behavior, but rather is an expression of his need to feel acceptable to others." The counselor found defendant to be "a very gentle person who would not intentionally harm anyone." The counselor believed that defendant "knows he did wrong" and that he was "genuinely sorry for his sexual activity with his daughter." The counselor stated that defendant "seldom drinks and then only on weekends and when out socially." "In view of his progress in therapy, his showing of responsibility and stability in his business, and his insight into the effects of his behavior," the counselor believed that defendant was "not a threat to the community" and that he could "safely be maintained in the community." In a March 1984 letter, the counselor reported that defendant had continued in weekly psychotherapy sessions. The counselor stated that defendant was "very motivated to gain insight and understanding into his problems"; that he expressed "deep regret and sorrow"; and that he appeared "trusting, generous, hardworking - almost to a fault." The counselor continued to opine that defendant was "not a threat to the community." The counselor also saw defendant's daughter on a weekly basis, as well as defendant and his daughter together weekly. The counselor reported that defendant had "sincerely apologized" to his daughter. In an October 1984 letter, the counselor reported that defendant continued to regularly attend weekly sessions with the counselor, was "responsive and involved during sessions," that the sessions involved a "better understanding of the process of parenting," and that defendant had made "excellent progress in his therapy."
Defendant provided letters indicating that he attended weekly "Parents United groups" from September 1983 through at least May 1985. By March 1985, he had participated in a 16-week parenting skills group.
Defendant filed supplemental documentation on April 1, 2022 in further support of his petition to terminate his registration requirement. The documents consisted of "character letters and letters of reference," dated between February and March 2022, from people who knew defendant on a personal or professional basis. The letters indicated that defendant was kind, considerate, pleasant, helpful, responsible, honest, trustworthy, and ethical.
2. Prosecutor's Memorandum Opposing Termination of Registration
On April 11, 2022, the prosecutor filed a memorandum of points and authorities in opposition to defendant's petition. The prosecutor contended that defendant's continued registration would significantly enhance public safety and that he should not be allowed to file another petition for five years. In support of this argument, the prosecutor relied on the probation and sentencing report and the January 2022 letter by defendant's daughter to the court.
The prosecutor contended that the number of victims, their young age, the nature of the acts, and the vulnerability of the primary victim "highlight the seriousness of the offenses." The prosecutor argued that defendant adopted his daughter "to basically raise her to be his child bride," "exploited his position of trust as a parent," and repeatedly abused her. Defendant's assertion - that he did not make his daughter do anything that she did not want to do - further reflected his exploitation of her. The prosecutor also argued that defendant exploited a position of trust when he engaged in inappropriate behavior with the two young boys. Further, the daughter's letter indicated that defendant had slept in bed with one of her friends. The prosecutor argued that defendant had engaged in "truly predatory" behavior and that his case should not be treated the same as an 18-year-old groping a younger teen over the clothes. Notwithstanding the age of the offenses, the prosecutor argued that "community safety would be significantly enhanced by requiring [defendant] to continue to register, so that the community can fully protect itself from [him]." The prosecutor also contended that defendant had "not completed a Sex-Offender Management Board-certified sex offender treatment program" as his offenses occurred prior to the existence the program. The prosecutor argued that defendant's participation in counseling or family therapy was not the same as a certified sex offender treatment program.
The prosecutor also contended that section 290.5 provides a list of factors that the trial court must consider in determining whether registration should be continued and that no single factor, including the length of time a defendant has remained offense free, was determinative. Regarding defendant's reliance on research concerning recidivism rates, the prosecutor argued that (1) the research does not provide guidance on how to apply the statutory facts in a particular case, and (2) many of the studies note that reoffense was determined based on a subsequent charge or conviction and that this does not account for offenses that were not reported.
F. The Hearing on the Petition
The hearing on defendant's petition was held on April 11, 2022. Defense counsel argued that defendant married in the mid-1980's, and that he remained married for 20 years until his wife passed away about 16 years ago. Among other treatment, defendant participated in "aversion therapy" with the psychologist in 1984, where defendant was "trained not to be aroused by images of children." Counsel stated that defendant "believes he was terminated early from probation" in March 1986, after he successfully completed a little over two years of probation.
The prosecutor contended that although it was "clear there was some supervision" in the mid-1980's, there was no "indication of that continued level of supervision past the 80s." The prosecutor argued that registration should continue for defendant, who had molested children of both sexes and who had believed it was "okay to be in this type of married/dating relationship with a child." The prosecutor contended that although defendant completed treatment, it was before certified programs existed for sex offenders and that earlier treatment was "not of the same benefit or quality as the programs we have now." The prosecutor believed that the "majority of [defendant's] treatment was through trying to reunify with" his daughter and "that reunification did not happen." Instead, the victim provided a letter explaining the impact of the molestation on her and how defendant had not shown remorse or apologized to her, even when she had contact with him approximately 10 years later when she was 17 years old.
The trial court expressed familiarity with Parents United, where defendant participated in therapy with his daughter for a period of time until she chose to end contact with him. The court indicated that the program "deal[t] with the issues that are involved in child molest, but also that it was geared towards family reunification where possible."
G. The Trial Court's Order
On May 31, 2022, the trial court filed a written order denying defendant's petition to terminate his sex offender registration requirement. The court found that community safety would be significantly enhanced by defendant's continued registration. In reaching this conclusion, the trial court recounted the details of defendant's offenses against his daughter and the two boys. The court observed that defendant acknowledged the behavior to the police, that he claimed his daughter wanted him to do it and that it felt good to her, that he did not know what he was doing was wrong because he never forced her, and that she may have learned how to behave in a sexual manner from looking at pornographic books with him. The court also referred to the letter by the daughter in which she described seeing defendant when she was 17 years old, his lack of remorse, and his belief that "what he did was just something people do." The court found that the "generic" character references submitted by defendant did "not reflect that the people writing them were aware of [defendant's] history of molesting his adopted daughter and two young boys and were submitting letters of support [not] understanding the circumstances which they [were] being submitted." The court also referred to the section 288.1 report from 1983 in which the psychiatrist stated that defendant would not be a danger to others "as long as he was under the rigid jurisdiction of the probation department." (Boldface omitted.) The court stated, "Moreover, [the psychiatrist] indicated he had a 'great deal of reservations with respect to [defendant] because of the longevity of his behavior with respect to his daughter and the intensity of the impairment which led to this involvement.' The court today still shares those concerns, and feels that continued registration under Penal Code §290 would significantly enhance community safety because the evidence supports a finding that the impetus for and gravity of his behavior is still not appreciated by [defendant]. Without a record of registration that is accessible by the public, the court is concerned for the safety of other children in the community." The court also ruled that defendant could not reapply for five years to terminate of his registration requirement because it did "not appear to the court that the reasons for the denial of the petition will change for at least this time period."
III. DISCUSSION
Defendant contends that the trial court abused its discretion in denying his petition to terminate his sex offender registration requirement because there was no evidence to support a finding that community safety would be significantly enhanced by requiring continued registration. Alternatively, he argues that the court erred in ordering a five-year period, instead of a one-year period, before he may file a new petition. Lastly, defendant contends that the court's order denied him due process.
A. Termination of Sex Offender Registration Requirement
"California law has long required persons convicted of certain specified sex crimes, including commission of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a) . . .) to register as sex offenders ....[Citations.]" (People v. Mosley (2015) 60 Cal.4th 1044, 1048, fn. omitted.) "Due to a perceived propensity for recidivism, sex offenders are viewed as posing a '"' "continuing threat to society." '"' [Citation.] The 'overriding purpose' of sex offender management is to mitigate that threat, thereby 'enhanc[ing] community safety by preventing future sexual victimization.' [Citation.]" (People v. Franco (2024) 99 Cal.App.5th 184, 190 (Franco).) The Sex Offender Registration Act (§ 290 et seq.) "was enacted to prevent recidivism of sex offenders and facilitate their surveillance by police." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 874.) "Children, in particular, 'are a class of victims who require paramount protection' from sex offenders [citation], and mandating . . . registration of those who prey on underage victims serves 'to notify members of the public of the existence and location of sex offenders so they can take protective measures' [citation]." (Id. at p. 877.)
Originally, when registration was required, it was for life. (Franco, supra, 99 Cal.App.5th at p. 190.) This, however, "led to California having 'the largest number of registrants in the nation,' 'mak[ing] it difficult for law enforcement to effectively supervise those who present[ed] the greatest public danger.' [Citations.] In order to reduce the burden on this overwhelmed system and thereby free up law enforcement to supervise the sex offenders who pose the greatest risk to the community [citation], our Legislature amended the sex offender registration statutes . . . to create a three-tiered system, with offenders in each tier presumptively obligated to register for different periods of time depending on the degree of risk they pose to the community [citations]." (Id. at pp. 190-191.)
In general, a tier one offender must register for a minimum of 10 years, a tier two offender must register for at least 20 years, and a tier three offender must register for life. (§ 290, subd. (d)(1)(A), (2)(A) &(3).) The time period may be tolled or extended for additional time periods pursuant to section 290, subdivision (e). Offenders, such as defendant, who are convicted of a violation of section 288(a), which is a violent felony, are tier two offenders who are subject to a 20-year minimum registration requirement. (§§ 290, subd. (d)(2)(A), 667.5, subd. (c)(6); People v. Thai (2023) 90 Cal.App.5th 427, 430, 432 (Thai); Franco, supra, 99 Cal.App.5th at p. 195.)
Section 290, subdivision (e) states: "The minimum time period for the completion of the required registration period in tier one or two commences on the date of release from incarceration, placement, or commitment, including any related civil commitment on the registerable offense. The minimum time for the completion of the required registration period for a designated tier is tolled during any period of subsequent incarceration, placement, or commitment, including any subsequent civil commitment, except that arrests not resulting in conviction, adjudication, or revocation of probation or parole shall not toll the required registration period. The minimum time period shall be extended by one year for each misdemeanor conviction of failing to register under this act, and by three years for each felony conviction of failing to register under this act, without regard to the actual time served in custody for the conviction. If a registrant is subsequently convicted of another offense requiring registration pursuant to the Act, a new minimum time period for the completion of the registration requirement for the applicable tier shall commence upon that person's release from incarceration, placement, or commitment, including any related civil commitment. If the subsequent conviction requiring registration pursuant to the Act occurs prior to an order to terminate the registrant from the registry after completion of a tier associated with the first conviction for a registerable offense, the applicable tier shall be the highest tier associated with the convictions."
Tier one and tier two offenders generally may file a petition for termination from the sex offender registry after their mandated minimum registration period has expired. (§ 290.5, subd. (a)(1); see id., subd. (b) [authorizing earlier petitions to terminate under specified circumstances].) The petition must be served on the registering law enforcement agency, among others. (Id., subd. (a)(2).) The registering law enforcement agency must report to the court whether the defendant has met the requirements for termination pursuant to section 290, subdivision (e). (§ 290.5, subd. (a)(2).) If the prosecutor does not request a hearing, the trial court generally "must grant the petition as long as the defendant is currently registered, has no pending charges, and is not in custody or on parole, probation or supervised release." (Franco, supra, 99 Cal.App.5th at pp. 191-192; see § 290.5, subd. (a)(2).)
The prosecutor may oppose the petition by requesting a hearing and presenting evidence to establish that "community safety would be significantly enhanced by requiring continued registration." (§ 290.5, subd. (a)(3); see also id., subd. (a)(2).) The prosecutor must make this showing by a preponderance of the evidence. (See Evid. Code, § 115 ["Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence"].) The trial court must determine whether the prosecutor has "produce[d] evidence establishing that requiring continued registration appreciably increased society's safety." (Thai, supra, 90 Cal.App.5th at p. 432; accord, Franco, supra, 99 Cal.App.5th at p. 192.) The trial court "[i]n determining whether to order continued registration, . . . shall consider" seven statutory factors: (1) "the nature and facts of the registerable offense;" (2) "the age and number of victims;" (3) "whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours);" (4) "criminal and relevant noncriminal behavior before and after conviction for the registerable offense;" (5) "the time period during which the person has not reoffended;" (6) "successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program;" and (7) "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 court may consider "declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant." (Id., subd. (a)(3).)
If the trial court denies the petition, "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).)
"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 reason, 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.]" (Thai, supra, 90 Cal.App.5th at p. 433.)
B. Analysis
Defendant contends that the trial court abused its discretion in denying his petition because there was no evidence to support a finding that community safety would be significantly enhanced by requiring continued sex offender registration. He argues that instead, the evidence "conclusively establishes" that he currently "poses no risk to the community . . ., let alone a substantial one."
First, defendant argues that research shows that the risk of recidivism tends to decrease over time, and he has not committed any offense since his 1983 convictions. During the nearly more than 38 years between his convictions in September 1983 and the trial court's ruling in May 2022, defendant argues that he was granted an early release from probation and an expungement (although no evidence was presented below to support these assertions), was married for approximately 20 years until his wife's death (assertions without evidence in the record other than argument by his trial counsel below), and worked in the community. He was almost 67 years old at the time of the ruling on his petition, and he contends he was drinking less alcohol. Defendant argues that the trial court failed to give his character and reference letters "the significance they deserved" and that it was "irrelevant" whether the writers were aware of the purpose of the letters.
We also note that defendant's trial counsel told the trial court at the hearing on defendant's petition to terminate registration that counsel did not "know what the rules were at the time, but this is not an offense that's eligible for an expungement."
Second, defendant contends that the trial court should not have relied on the letter by his daughter, who recounted a conversation with him in approximately 1992 when she was 17 years old. He argues that his daughter and the court misinterpreted him, and that he had been "trying to explain to [his daughter] how he had felt at the time, not that he thought 'this is something people do.'" Further, defendant contends that by relying on the letter, the court "completely disregarded" the 1983 letter from his counselor who reported that defendant was sorry for what he had done, knew what he did was wrong, and had taken steps to make sure that it would not be repeated. Defendant contends that the court also "totally ignored" the 1983 probation report which indicated that he admitted responsibility, expressed remorse, and expressed concern for his daughter.
Third, defendant contends that the victims in this case - his daughter and the two boys - were all minors, but that tier two offenders with section 288(a) convictions by definition involve offenses with child victims. He further contends that a large percentage of sex offender registrants have been convicted under section 288(a). Defendant thus argues that the fact that the victims in his case were minors "should not on its own justify continued registration."
Fourth, defendant contends that research shows that "[r]ecidivism rates for offenses with known victims are significantly lower than sex offense recidivism rates generally."
Fifth, defendant contends that he "successfully completed a court ordered treatment program" with a psychologist, participated in weekly therapy with a counselor, and participated in regular group meetings at Parents United. He argues that his psychologist's and counselor's comments indicate that he (defendant) was sorry for his conduct, had apologized to his daughter, had made significant progress in therapy, and was no longer a threat to the community as a result of this therapy in the 1980's.
Defendant also contends that the opinions in Thai, supra, 90 Cal.App.5th 427, and Franco, supra, 99 Cal.App.5th 184, indicate that the seriousness of the offenses occurring decades ago is not a sufficient basis to require continued registration.
We are not persuaded by defendant's arguments. The trial court in a detailed written order expressly stated that it had considered all the evidence and the factors set forth in section 290.5, subdivision (a)(3). The "nature and facts" of the section 288(a) offenses and "the age and number of victims" weighed in favor of continued registration. (§ 290.5, subd. (a)(3).) Among defendant's section 288(a) offenses, one involved a young child with whom he engaged in continuous sexual conduct over the course of years. In this regard, defendant adopted a young daughter whom he proceeded to repeatedly molest. This conduct occurred for at least two years according to defendant, or four years according to his daughter, and ended when she was eight years old. According to defendant's own admission, his conduct would have continued if law enforcement had not intervened. The conduct against his daughter was wide ranging -having her rub his penis and put his penis in her mouth, touching and kissing her vagina, and attempting to put his fingers and his penis in her vagina. Defendant also looked at pornography with his young daughter and masturbated in front of her. Defendant's other section 288(a) conviction involved touching or rubbing a boy's buttocks inside the boy's pants. Regarding "criminal and relevant noncriminal behavior before and after conviction for the registerable offense" (§ 290.5, subd. (a)(3)), defendant engaged in inappropriate conduct with a second boy during this same time period and prior to the section 288(a) convictions. After defendant's convictions, a psychiatrist in a section 288.1 report determined that defendant suffered from pedophilia, that he should not be left unsupervised around children under the age of 14, and that the "rigid jurisdiction" of the probation department was necessary to protect against defendant being a danger to others. Defendant did not complete "a Sex Offender Management Board-certified sex offender treatment program" (§ 290.5, subd. (a)(3)) as none apparently existed at the time. Although defendant engaged in therapy with various providers in the 1980's, he failed to exhibit remorse to his daughter nearly a decade later. The trial court observed that the psychiatrist had a "a great deal of reservations with respect to [defendant] because of the longevity of his behavior with respect to his daughter and the intensity of the impairment which led to this involvement." The court stated that it "today still share[d] those concerns," "that the impetus for and gravity of [defendant's] behavior is still not appreciated by" him, and that "[w]ithout a record of registration that is accessible by the public, the court [was] concerned for the safety of other children in the community."
On this record, we find that the trial court did not abuse its discretion in determining that community safety would be significantly enhanced by requiring defendant's continued registration. (§ 290.5, subd. (a)(3).)
Defendant contends that he was in a long-term marriage after his convictions, engaged in therapy with multiple providers, and remained crime-free after his section 288(a) convictions. We are not persuaded that these facts demonstrate an abuse of discretion by the trial court in determining that community safety would be significantly enhanced by requiring defendant's continued registration (§ 290.5, subd. (a)(3)).
For example, defendant points to being married after committing the offenses, with the apparent implication that he would not commit any further sex offenses against children since he had a relationship with an adult. We observe, however, that defendant reported having "sexual contact" with a woman at the time the molestations were occurring.
Regarding defendant's participation in therapy, although a psychologist characterized defendant's therapy from various providers as "close to the type of program that exist[ed] at Atascadero State Hospital" in the mid-1980's, it remains undisputed that defendant did not complete a "Sex Offender Management Board-certified sex offender treatment program" (§ 290.5, subd. (a)(3)). The record also reflects that at least some of defendant's therapy was focused on him reuniting with his daughter and that ultimately she was never returned to his care.
Moreover, although some of defendant's treatment providers indicated that defendant had made progress in therapy in the 1980's, it was not unreasonable for the trial court to rely on the opinion of the psychiatrist, who had been retained to submit a report to the trial court under section 288.1, over the opinion of, for example, the licensed counselor. The licensed counselor indicated that defendant's therapy sessions involved "work[ing] on [a] better understanding of the process of parenting." In a November 1983 letter, a mere two months after defendant had been convicted of molesting multiple children including his young daughter for a number of years, the counselor opined that defendant was "a very gentle person who would not intentionally harm anyone," had "insight into the effects of his behavior," was "not a threat to the community," and could "safely be maintained in the community."
In contrast, in the section 288.1 report one month later in December 1983, the psychiatrist found that defendant suffered from pedophilia. Although defendant had indicated to the licensed counselor and to the police that he did not know that his conduct was harmful or unlawful since he did not use force, the psychiatrist observed, as had been reported by the daughter, that defendant told his daughter not to tell anyone about the conduct, which suggested defendant was aware of the wrongfulness of his conduct. The psychiatrist had "a great deal of reservations with respect to [defendant] because of the longevity of his behavior with respect to his daughter and the intensity of the impairment which led to this involvement." The psychiatrist also agreed with another doctor's recommendation that defendant should "not be in the presence of children under the age of fourteen by himself at this time." The psychiatrist stated that only if defendant was "under the rigid jurisdiction of [the] probation department" would the psychiatrist not consider defendant a danger to others.
Further it was not unreasonable for the trial court to implicitly determine that the daughter's interaction with defendant when she was 17 years old was entitled to greater weight than defendant's expressions of remorse to the probation officer before sentencing and during therapy while he was still on probation. When the daughter asked defendant for an explanation for his conduct, he told her "because he wanted to raise [her] and marry [her]." From this conversation, the daughter discerned "no remorse at all" from defendant and that "it was to him as if this is something people do." She also stated that there had been no further interaction between the pair although they lived in the same town for some period of time. Based on these circumstances, it was not unreasonable for the trial court to find that defendant "doesn't appreciate what he did was wrong and moreover, does not appear to understand the significant harm he caused his adopted daughter that she still lives with today."
It was also not unreasonable for the trial court to place little weight on the character letters submitted by defendant. As the court observed, nothing in the letters indicated that the writers were aware of defendant's prior convictions for lewd acts with children or were aware of the purpose for which the letters were being submitted to the court.
We also find the opinions in Thai, supra, 90 Cal.App.5th 427, and Franco, supra, 99 Cal.App.5th 184, which determined that the registration requirement for the defendants in those cases should have been terminated, distinguishable from the facts in the instant case.
In Thai, the defendant's section 288(a) conviction arose out of an incident in which the defendant store employee masturbated a 12-year-old boy until he ejaculated. (Thai, supra, 90 Cal.App.5th at p. 430.) The appellate court explained that "the prosecution must produce evidence establishing that requiring continued registration appreciably increased society's safety." (Id. at p. 432.) The appellate court determined that the prosecutor failed to meet this burden, where the evidence consisted of one lewd act on a 12-year-old, the defendant had not suffered a new conviction in 24 years, the defendant indicated remorse to the probation officer and a willingness to participate in treatment, there was no evidence that the defendant refused to complete counseling, and there was otherwise no evidence that the defendant "present[ed] a danger today." (Id. at p. 434; see id. at pp. 430, 431.)
In Franco, the defendant's two section 288(a) convictions arose out of incidents in which he pulled down the underwear of his seven-year-old stepdaughter and put his penis in her" 'hole,'" and more than a year later he used his fingers to rub her vagina through her underwear. (Franco, supra, 99 Cal.App.5th at p. 188.) The defendant in petitioning for termination of registration provided exhibits showing "(1) his unfailing compliance with his sex offender registration requirement as well as lack of any arrests for the intervening 37 years; (2) the progress he made in psychotherapy sessions, completion of a counseling program, and willingness to admit to the crimes and show remorse; (3) his 34-year marriage and family stability; (4) his military service in the 1970s; (5) his postconviction work history; and (6) his involvement in church activities." (Id. at p. 189.) The appellate court determined that the defendant's registration requirement should have been terminated. The appellate court explained that the trial court, "despite acknowledging other factors, . . . gave controlling weight to the 'egregious' nature of defendant's offenses despite 37 years of law-abiding behavior since the offenses and despite the People's failure to produce any other evidence indicating that defendant, age 74 at the time of the hearing, 'was currently likely to reoffend.'" (Id. at p. 194.)
In contrast, in the present case, defendant's sex offenses were not limited to one or two incidents with a single victim, and there was evidence supporting a finding that continued registration would increase society's safety. Defendant repeatedly molested his young daughter over the course of two to four years, until the police intervened when she was eight years old. Defendant also engaged in lewd conduct with a boy and additional inappropriate conduct with another boy. A psychiatrist found that defendant suffered from pedophilia and indicated he would be a danger to others without supervision. Even a decade later, after participating in therapy with multiple providers, defendant expressed no remorse in his interaction with his daughter, which she described in a letter that was filed in the trial court in 2022. The trial court did not abuse its discretion or act in an arbitrary, capricious, or patently absurd manner in determining that on these facts, defendant's continued registration would significantly enhance community safety (§ 290.5, subd. (a)(3)).
Defendant also contends that the trial court erred by ordering that he may not file a new petition to terminate his registration for the statutory maximum of five years and that he should instead be allowed to file a new petition after the statutory minimum of one year. (See § 290.5, subd. (a)(4).) The trial court stated that it was ordering the five-year period because it did "not appear to the court that the reasons for the denial of the petition will change for at least this period of time." Defendant in his opening brief on appeal does not provide any argument showing error in this regard beyond the arguments that he made in connection with his contention that the trial court erred in denying his petition -arguments that we have already rejected. For the first time in his reply brief, defendant contends that the trial court's decision to set a five-year time period was based "largely on factors that will never change" or "immutable facts," such as the facts of the offense, the psychiatrist's statements from the section 288.1 report, and his statements to his daughter when she was 17 years old. We are not persuaded by defendant's argument. The court indicated in its order that the basis for the five-year period was defendant's failure to "appreciate[]" the "impetus for and gravity of his behavior," meaning he "doesn't appreciate what he did was wrong" and "understand the significant harm he caused his adopted daughter." These are not "immutable facts" as argued by defendant.
Lastly, defendant contends that his federal constitutional rights to due process and "fundamental fairness in proceedings" were violated because "the court misapplied the statutorily required factors, failed to hold the prosecution to its burden of proving [defendant] is a current danger to the community, and did not give due weight to the evidence that he is not." Assuming, without deciding, that these federal constitutional rights apply in the context of a section 290.5 proceeding, we find no violation of these rights. As we have explained, the trial court considered all the factors under section 290.5, carefully evaluated and weighed all of the evidence, and reasonably concluded that the prosecutor had met the requisite burden of showing that community safety would be significantly enhanced by requiring defendant's continued registration. No constitutional violation has been shown.
IV. DISPOSITION
The order denying defendant's petition to terminate his sex offender registration requirement and precluding another petition for five years is affirmed.
WE CONCUR: GROVER, J. LIE, J.