Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H35750B
Reardon, J.
In January 2004, appellant Mark Christopher Jurcso was convicted of oral copulation of a minor under the age of 16. (Pen. Code, § 288a, subd. (b)(2).) He was ordered to register as a sex offender under the mandatory lifetime provisions of former section 290. In 2009, Jurcso filed a motion to vacate the mandatory registration order. The trial court granted his motion, but imposed lifetime sex offender registration as a matter of judicial discretion. (§ 290.006.) On appeal, Jurcso contends that the trial court (1) erred in declining to consider new evidence on his propensity to reoffend, and (2) abused its discretion in finding that he is likely to commit future sex offenses. We affirm the order.
All statutory references are to the Penal Code.
I. FACTS
In August 2003, an amended complaint charged appellant Mark Christopher Jurcso with 14 counts, including unlawful sexual intercourse, sodomy of a minor under the age of 16, oral copulation of a minor under the age of 16, and pimping and pandering a minor prostitute. (§§ 261.5, subd. (d), 286, subd. (b)(2), 288a, subd. (b)(2), 266h, subd. (a), 266i, subd (a)(1).) Jurcso admitted to an Alameda County sheriff detective that he participated as a driver in a pimping and pandering scheme. He admitted to having oral and anal sex with a 15-year-old minor, including having vaginal intercourse with her at the same time as a codefendant. Jurcso also admitted to having vaginal intercourse with a 17-year-old who was involved in the prostitution scheme. At the time of these offenses, Jurcso was 31 years old.
In January 2004, Jurcso pled no contest to one count of oral copulation with a person under 16 years of age in August 2002. (§ 288a, subd. (b)(2).) He was granted five years’ probation, ordered to serve nine months in jail, and was required to register for life as a sex offender, under the mandatory provisions of former section 290. (See Stats. 2002, ch. 17, §§ 1-2, eff. Mar. 28, 2002; Stats. 2003, ch. 634, §§ 1.3, 11, eff. Sept. 30, 2003.) The trial court granted Jurcso’s request to stay his sex registration requirement until he completed his jail term, which he served at a private work furlough facility. It also granted his request that he be allowed to leave that facility on weekends.
In April 2005, Jurcso was convicted of failing to register as a sex offender in December 2004. (Former § 290, subd. (a)(1)(D) [Stats. 2003, ch. 634, §§ 1.3, 11, eff. Sept. 30, 2003; Stats. 2004, ch. 761, § 1.3].) His probation was revoked and he was given a two-year suspended sentence. Jurcso was granted another five-year term of probation. In April 2007, Jurcso again violated the terms of his probation. This time, he was ordered to serve his two-year prison sentence.
Jurcso was released on parole in August 2007. The terms of his parole prohibited him from residing within 2, 000 feet of a school or park and required GPS monitoring for life. He filed a petition for writ of habeas corpus requesting that the court strike both conditions, without success. In September 2009, he violated the terms of his parole by entering elementary school grounds without permission. (See § 626.81.) His parole was revoked and he spent another five months in prison.
Meanwhile, in 2006, the California Supreme Court held that the imposition of mandatory lifetime sex offender registration on a defendant convicted of oral copulation with a minor not younger than 16 years of age violated equal protection. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1198-1200; see former § 290, subd. (a)(1)(A) [Stats. 2005, ch. 722, § 3.5].) However, the court in Hofsheier allowed a trial court to impose discretionary lifetime sex offender registration, under a discretionary aspect of former section 290. (Hofsheier, supra, 37 Cal.4th at p. 1209; see former § 290, subd. (a)(2)(E) [Stats. 2005, ch. 722, § 3.5].) In 2007, former section 290 was repealed, at which time the mandatory and discretionary registration requirements were codified in new statutes. (See §§ 290, subd. (b), 290.066 [Stats. 2007, ch. 579, §§ 7-8, 14].) By 2008, Hofsheier had been held to apply to defendants such as Jurcso, who had been convicted of oral copulation with a minor under 16 years old. (See People v. Garcia (2008) 161 Cal.App.4th 475, 482, disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338-339 fn. 4.)
In July 2009, Jurcso filed a Hofsheier motion to vacate his mandatory sex offender registration requirement. At the hearing on the motion, Jurcso requested a psychological evaluation to assist the court in determining whether he is likely to reoffend. The court denied the request. The trial court vacated the mandatory sex offender registration requirement, pursuant to section 290, but imposed lifetime sex offender registration as a matter of judicial discretion under section 290.006.
A petition for writ of habeas corpus in the trial court is the preferred method for a defendant to challenge circumstances declared unconstitutional after the underlying conviction became final. (People v. Picklesimer, supra, 48 Cal.4th at p. 339.)
II. DISCUSSION
A. Psychological Evaluation
Jurcso contends that the trial court’s denial of his request to present further evidence-specifically, a psychological report on his propensity to commit future sex offenses-was a denial of due process. He cites no direct authority to support this claim. The trial court that imposed the discretionary lifetime sex offender registration requirement also presided over Jurcso’s 2004 oral copulation trial and 2005 probation violation proceeding for failure to register. When denying Jurcso’s request for a psychological report, the trial court noted its familiarity with the facts of the underlying cases and its review of the court file in these matters. Without the requested evaluation, the trial court had ample evidence to support its finding that Jurcso was likely to reoffend. Additionally, Jurcso had approximately three months before the hearing to obtain his own psychological report, but he did not. No due process violation occurred.
B. Abuse of Discretion
Jurcso also contends that the trial court abused its discretion in imposing lifetime sex offender registration. (§ 290.006.) On appeal, we will not reverse a trial court’s ruling unless it exercised its discretion in an arbitrary or capricious manner that resulted in a miscarriage of justice. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) To impose a discretionary lifetime sex offender registration requirement, a trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification; and (2) it must state the reasons for requiring lifetime registration as a sex offender. (§ 290.006; People v. Hofsheier, supra, 37 Cal.4th at p. 1197.) Consistent with the purpose of sex offender registration, one reason for requiring discretionary registration under section 290.006 must be that the defendant is likely to reoffend in the future. (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 (Lewis).)
The trial court was familiar with Jurcso, and had a sufficient factual basis to find that he acted for the purposes of sexual compulsion or gratification. It clearly stated its reasons for imposing the discretionary lifetime registration requirement on the record. It took note of the leniency granted to Jurcso at his original sentencing, and contrasted that with his conduct before and after conviction, including his repeated probation and parole violations. The court stated that it imposed the discretionary lifetime registration requirement because of Jurcso’s failures to comply with the terms of his probation and parole, and because the underlying offense was serious.
Jurcso relies heavily on Lewis, supra, 169 Cal.App.4th 70, asserting that there is insufficient evidence to support the court’s finding that he is likely to commit future sex offenses. In Lewis, the Sixth Appellate District relieved a defendant of a sex offender registration requirement after finding that there was insufficient evidence in the record to support a finding that he was likely to reoffend. (Id. at p. 79.) At the time of the offense, the victim was 17 and the defendant was 22 years old. There was no evidence that he had forced or coerced her. Twenty years had lapsed since his offense, without further serious criminal activity. On these facts, the Lewis court found that the defendant was not likely to reoffend.
The trial court was aware of Lewis, and rejected its application to Jurcso’s case.
Jurcso’s case is factually distinguishable from Lewis, for a number of reasons. Only seven years have passed since the underlying offense. He admitted that he was involved in an illegal prostitution scheme involving underage minors. A 16-year age gap existed between Jurcso and his primary victim, who was verbally and physically abused by both Jurcso and a codefendant. Contrary to Lewis, it is reasonable to conclude that the victim was coerced into doing something she otherwise might not have done. Jurcso also admitted to having sex with a second minor during the same period. As the facts in our case differ significantly from those in Lewis, we are not compelled to follow that decision.
The trial court concluded that “the best predictor of the future is the past.” It reviewed Jurcso’s record, including his probation report, containing “glowing recommendations” of his expected compliance with proposed probation conditions. Those expectations had not proven accurate. It considered Jurcso’s social history and criminal background, his letters of recommendation, the probation report and the case file. Based on ample evidence that Jurcso was likely to reoffend, we are satisfied that the imposition of discretionary lifetime sex offender registration was not an abuse of discretion.
III. DISPOSITION
The order is affirmed.
We concur: Ruvolo, P.J. Rivera, J.