Opinion
B225832
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE L. LOPEZ, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Victoria B. Wilson, Janet E. Neeley and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA105589)
APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick Connolly, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Victoria B. Wilson, Janet E. Neeley and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Section 290, subdivision (c) requires a defendant convicted of any of its enumerated offenses to submit to lifetime registration as a sex offender. If, on the other hand, a defendant is convicted of a crime not enumerated in section 290, the trial court has the discretion to require lifetime registration as a sex offender if it finds that the defendant "committed the offense as a result of sexual compulsion or for purposes of sexual gratification" and "state[s] on the record the reasons for its findings and the reasons for requiring registration." (§ 290.006; see People v. Hofsheier (2006) 37 Cal.4th 1185, 1198; People v. King (2007) 151 Cal.App.4th 1304, 1309.) Section 3003.5, enacted in 2006 as part of Proposition 83 (Jessica's Law), makes it unlawful for any registered sex offender "to reside within 2000 feet of any public or private school, or park where children regularly gather." (§ 3003.5, subd. (b).)
All statutory references are to the Penal Code.
In this case, the People charged defendant Jose L. Lopez with one count of continuous sexual abuse of Esmerelda, a child under the age of 14 years. (§ 288.5, subd. (a).) The jury acquitted defendant of the charge but convicted him of the lesser offense of misdemeanor battery (§ 242).
At sentencing, the trial court reviewed at length the evidence presented at trial. The court found that the battery for which defendant had been convicted was precipitated by his sexual desire. Exercising its discretion under section 290.006, the trial court ordered defendant to register as a sex offender.
In this appeal, defendant challenges the order requiring him to register as sex offender on two separate grounds. First, he contends that because the registration requirement includes the residency restriction, it constitutes a punishment that increases the penalty for his conviction beyond the statutory maximum. Based upon that premise and relying upon Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), he argues that a jury must find true beyond a reasonable doubt the facts supporting discretionary imposition of the registration requirement. Second, defendant contends that even if a trial court can impose the registration requirement absent a jury finding, the trial court abused its discretion in this case because it failed to state adequate reasons for its order. We reject both contentions and therefore affirm the judgment.
STATEMENT OF FACTS
1. The Prosecution's Case
In 2002, six-year old Esmerelda and her family moved into a new home. Her aunt and defendant (then 54 years old) lived next door with their five children. Esmerelda often went to defendant's home after school. Her cousins helped her with her homework and she played on the computer.
Esmerelda testified that defendant's sexual abuse began in 2003 when she was seven years old. When she visited defendant's home to play on the computer and no one else was there, defendant would call her into his bedroom. At first, defendant touched and rubbed her over her clothes on her chest and vagina, kissed her on the lips, and placed his tongue in her mouth. This happened a few times each week. Later on, he placed his hand under her clothes and touched her chest and vagina. On one occasion, defendant pulled his erect penis out of his boxer shorts, grabbed Esmerelda's hand, placed her hand on his penis, and moved her hand back and forth over it. On another occasion, defendant removed Esmerelda's pants and underwear and attempted to insert his penis in her vagina but did not penetrate her. After each incident, defendant told Esmerelda not to tell anyone what had happened although he never threatened her. Esmerelda always complied with the instruction to remain silent.
In 2005, Esmerelda's family moved. Thereafter, she was never alone with defendant.
In 2008, when Esmerelda was 12 years old, her mother spoke with her about sexual issues. This discussion triggered thoughts about defendant's abuse. The next day, Esmerelda told her mother about defendant's on-going abuse. Her mother reported the matter to law enforcement. Detective Maribel Rizo interviewed Esmerelda.
On March 11, 2008, Detective Rizo interviewed defendant. At first, he denied ever having touched Esmerelda in a sexual manner. He conceded that at times he had tickled her or wrestled with her or hugged her when she lay down with him on the sofa. Sometimes when music was playing, she would start to dance and "grind against" him. He would either push her away or hug her in an attempt to stop her dancing. On one occasion, she began to remove her clothes as she danced. She rubbed against defendant. His penis became erect. She grabbed it from outside of his clothes and asked him: "What do you have in there? What do you have?" Defendant pushed her away. Detective Rizo asked defendant why Esmerelda's dancing had caused his erection. He replied: "I don't know why. I don't know what kind of fantasies these could have been. Why do you fantasize about a little girl[?]"
The interview was recorded. The jury heard the audio recording and was given copies of a transcript of the interview.
After the interview, defendant was arrested. Following advisement and waiver of his Miranda rights, defendant agreed to speak again with Detective Rizo. Detective Rizo encouraged him to tell her the truth. He said that he would. He denied having ever touched Esmerelda's breasts or vagina. He told the detective that only once did he inappropriately touch the girl. It happened when they were in his bedroom watching television. Esmerelda was lying on the bed and told him to lie on top of her. He did. She felt his erection and told him "take it out; get it up." He removed his penis from the opening in his boxer shorts. Esmerelda told him to "lie down on top of me." He lay down next to her and placed his leg over her so that his penis touched her clothed body. Moments later, defendant heard Esmerelda's "little brothers" coming so he got off of the bed. Defendant told Detective Rizo that he had not told her about this incident in the first interview because he was "embarrassed."
Like the first interview, this one was also recorded. The jury heard the audio recording and was given copies of a transcript of the interview.
2. The Defense Case
Defendant testified on his behalf as follows. He had tickled Esmerelda in a playful manner but had never touched her in an inappropriate or sexual manner. He was never alone with her in his house and never took her into his bedroom. Esmerelda often danced while standing between his legs when he was on the couch. She would sometimes "grind up" against him while dancing. He would hug her so she would stop dancing. On one occasion, Esmerelda told him she would dance for him in a way she had seen in a movie. She began to dance and remove her clothing. His penis became erect. She grabbed it from outside of his clothes and asked: "What do you have there?" Defendant "felt bad" and pushed Esmerelda away.
As for his second interview with Detective Rizo, defendant testified that he had fabricated the incident about removing his penis from his boxer shorts and placing it on Esmerelda. He had lied to the detective because he wanted the interview to stop; he felt "so much pressure" that he thought he "was about to die."
3. The Jury Instructions
In addition to instructing on the charged offense of continuous sexual abuse, the trial court instructed about three lesser crimes: commission of a lewd or lascivious act upon a child under the age of 14, battery and assault.
4. The Parties' Closing Arguments
The prosecutor, relying primarily upon Esmerelda's testimony, asked the jury to find defendant guilty of continuous sexual abuse.
Defense counsel, arguing that the People had failed to meet their burden of proof, asked the jury to find defendant not guilty. Noting that there were inconsistencies in Esmerelda's pretrial statements to her mother and law enforcement and her testimony at the preliminary hearing and trial, defense counsel urged Esmerelda was not credible and that there was no physical evidence to corroborate her claim of sexual abuse. Defense counsel claimed that law enforcement had coerced a confession from defendant and that its investigation was shoddy, clouded by an inflexible belief that defendant was guilty. In addition, defense counsel argued that the jury should credit defendant's trial testimony.
In rebuttal argument, the prosecutor again asked the jury to find defendant guilty of continuous sexual abuse. In the alternative, the prosecutor urged that if the jury did not "believe that there was more than one time [of abuse], there is a lesser included charge. He's still guilty of child molestation on his own words, because she [Esmerelda] said it happened and he said it happened - both of them said it happened. But he only talks about one time. So if you think there is only that one time, he's still guilty."
5. The Verdict
The jury acquitted defendant of continuous sexual abuse but convicted him of battery.
6. Sentencing
At the beginning of the sentencing hearing, the prosecutor asked the trial court to exercise its discretion to require defendant to register as a sex offender. Defense counsel objected, alleging that the jury had found Esmerelda "not to be credible about anything she said. She testified to pure sexual acts for sexual gratification. And the jury did not find [defendant] guilty of [continuous sexual abuse] or [commission of a lewd or lascivious act] or anything that deals with any form of child molestation. [¶] And, in fact, they found him guilty of nothing more than a simple non sexual . . . misdemeanor battery. [¶] . . . [¶] So the jury didn't find [Esmerelda] credible in any aspect, and found that nothing sexual has happened. So there is nothing to support the prosecutor's requesting registration because nothing was done for sexual gratification. If it was, the jury would have found him guilty of at least [committing a lewd or lascivious act], which the People asked for."
The trial judge asked defense counsel "[i]f it is correct that this jury did not believe anything that Esmerelda said, the only basis for the battery [conviction] would have been when [defendant] stated [to the police] that he laid down beside her in the bed in his room, took his penis out and put it on her." Defense counsel responded that was not possible, stating that defendant had testified that statement "was a lie" and that "the jury found that not true." She argued that the jury could have found another touching was a non-sexually motivated battery such as when defendant pushed Esmerelda away while she was dancing against him or when he tickled her or wrestled with her.
The trial court responded that it believed that defendant had told the truth in his recorded statement to the police, notwithstanding his attempt to recant at trial. The court stated that it found Esmerelda credible. It explained:
"I also think that by way of Esmerelda's testimony, . . . [she] stated that during one of the incidents that she had with the defendant, that he took down his pants but did not remove his boxers, left them up, and that he took his penis out of the boxers through the front of those boxers.
"And regardless of [defendant's] denials or whatever spin he attempted to put on it, . . . he stated [to the police] that when he laid next to her, he took his penis out after taking down his pants but not removing his boxers, and taking it out of the front of the boxers. I think it was clear at that point that Esmerelda was telling the truth, regardless of what the jury found.
"I think this is a situation where the defendant in this case . . . used this position [as a relative] to be with a small child that did not deserve the fate that she received." (Italics added.)
The trial court stated that, pursuant to section 290.006, it would require defendant to register as a sex offender. It explained:
"The reason for that is from what I have stated, I do not believe that there was anything other than the simple fact that this jury found that there was a battery, regardless of whether or not they found a 288. And that battery could not - I do not believe after listening to this testimony, could have been based on anything other than a desire, sexual desire - precipitated by a sexual desire of [defendant].
"There was testimony as to [defendant] receiving the erection and Esmerelda touching him and him pushing her away. But I think that it was clear that a battery in this case would have been based upon the fact that the jury did find that, at the very least, that the defendant did take his penis out and place it on the victim in this case, Esmerelda. And I think that clearly in this case that it is appropriate [to order lifetime registration as a sex offender]." (Italics added.)
DISCUSSION
A. RIGHT TO A JURY TRIAL
Defendant first contends that his "right to a jury trial was violated by imposition of the discretionary sex offender registration."
The Attorney General urges that the constitutional claim has been forfeited because it was not raised in the trial court. Defendant counters that the failure to raise it should be excused because, at the time of his sentencing, such a claim would have been futile because no case law supported it. In the alternative, defendant urges that trial counsel's failure to raise the constitutional claim constitutes ineffective assistance of counsel.
On the question of forfeiture, the Attorney General is correct. (See, e.g., People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [failure to raise Apprendi claim in trial court constitutes a forfeiture].) Nonetheless, we shall reach the merits of defendant's constitutional argument in the interest of judicial economy to prevent collateral attacks on the judgment claiming ineffectiveness of trial counsel. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
Whether a defendant has a right to a jury trial on the predicate facts to support the discretionary imposition of the requirement to register as a sex offender—a requirement that now includes a residency restriction as a result of Jessica's Law—is an issue now pending before the California Supreme Court. (People v. Mosley, formerly at 188 Cal.App.4th 1090, review granted Jan. 26, 2011, S187965; In re S.W., review granted Jan. 26, 2011, S187897; and In re J.L., formerly at 190 Cal.App.4th 1394, review granted March 2, 2011, S189721.) In those matters, the California Supreme Court has also directed the parties to brief whether section 3003.5, subdivision (b) (the residency restriction) applies to misdemeanor offenders (such as defendant) or whether it applies only to felony parolees., (People v. Mosley, S187965, order of March 2, 2011.)
Subdivision (a) of section 3003.5 provides: "Notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290, that person may not, during the period of parole, reside in any single family dwelling with any other person also required to register pursuant to Section 290, unless those persons are legally related by blood, marriage, or adoption. For purposes of this section, 'single family dwelling' shall not include a residential facility which serves six or fewer persons."
In this appeal, the Attorney General argues that the residency restriction does not apply to defendant because he was convicted only of a misdemeanor and will not be subject to parole.
Based upon our reading of current precedents, we reject defendant's constitutional argument.
It is well established that sex offender registration, in and of itself, "serves an important and proper remedial purpose" and is not "so punitive in fact that it must be regarded as punishment." (People v. Castellanos (1999) 21 Cal.4th 785, 796 [for purposes of an ex post facto analysis, sex offender registration does not constitute punishment]; see also Smith v. Doe (2003) 538 U.S. 84 [requirement to register as a sex offender does not constitute punishment within the meaning of the federal constitutional bar on ex post facto laws] and In re Alva (2004) 33 Cal.4th 254, 268-292 [for purposes of determining whether a sentence violates the constitutional prohibition on cruel or unusual punishment, mandatory sex registration for a misdemeanant does not constitute punishment].) Consequently, a defendant is not entitled to a jury trial on the question whether he should be required to register as a sex offender. (People v. Garcia (2008) 161 Cal.App.4th 475, 485-486 [construing section 290.006 without consideration of the residency restriction]; see also People v. Presley (2007) 156 Cal.App.4th 1027, 1033-1035 [section 290.46's public notification requirement of sex offender registration does not constitute punishment requiring a jury finding] and People v. Marchand, supra, 98 Cal.App.4th at pp. 1061-1065 [pre-Jessica's Law discretionary sex offender registration does not constitute punishment or penalty triggering Apprendi's requirements].)
Therefore, the core issue is whether adding the residency restriction to the discretionary sex offender registration requirement converts the requirement into punishment for purposes of entitlement to a jury trial under Apprendi. In that regard, our Supreme Court's recent opinion in In re E.J. (2010) 47 Cal.4th 1258 is instructive.
There, a group of parolees who had been convicted before enactment of Jessica's Law but paroled thereafter claimed that applying the residency restriction to them constituted an improper retroactive application of the statute and violated the prohibition on ex post facto laws. The California Supreme Court rejected both of those arguments.
In regard to the claim of improper retroactive application, the court wrote: "To require petitioners to comply with the new residency restrictions or face a parole violation for failing to do so is . . . not a retrospective application of the law. Although they fall under the new restrictions by virtue of their status as registered sex offenders who have been released on parole, they are not being 'additionally punished' for commission of the original sex offenses that gave rise to that status. Rather, petitioners are being subjected to new restrictions on where they may reside while on their current parole—restrictions clearly intended to operate and protect the public in the present, not to serve as additional punishment for past crimes." (In re E.J., supra, 47 Cal.4th at p. 1278, last italics added.)
In a similar vein, the court rejected the argument that requiring the parolees to comply with the residency restriction constituted an ex post facto application of the law. The court found that the residency restriction "does not additionally punish for the sex offense conviction . . . that originally gave rise to the parolee's status as a lifetime registrant under section 290. [Citations.]" (In re E.J., supra, 47 Cal.4th at p. 1280, italics added.) Thus, In re E.J., supra, clearly suggests that a residency restriction on a registered sex offender does not constitute punishment.
Further, the United States Supreme Court's decision in Oregon v. Ice (2009) 555 U.S. 160 (Ice) limiting Apprendi's application militates against accepting defendant's constitutional argument. In Ice, the issue was whether Apprendi applied to the decision to impose consecutive sentences on a defendant convicted of multiple offenses. The court concluded it did not because the "historical record demonstrates that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge." (Id. at p. 168.) The court observed that the defendant's effort to expand Apprendi to the decision to impose consecutive sentences could improperly impact many other sentencing choices. It wrote: "States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. [Citation.] Intruding Apprendi's rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings." (Id. at pp. 171-172, italics added.)
By a parity of reasoning, Apprendi does not apply to the discretionary decision to require sex registration (a decision defendant does not claim was ever made by a jury) because it is a determination based upon judicial findings about the nature of the offense and the character of the defendant. That sex registration now includes a residency restriction does not change that conclusion given the language in In re E.J., supra, that such a restriction does not constitute punishment. In sum, defendant had no right to a jury trial before the trial court could exercise its discretion to require sex offender registration.
B. DISCRETIONARY IMPOSITION OF
REQUIREMENT TO REGISTER AS A SEX OFFENDER
Defendant next contends that even if he "was not entitled to a factual finding by the jury beyond a reasonable doubt regarding discretionary sex offender registration (§ 290.006) . . . , the trial court failed to state adequate reasons for, and abused its discretion in, imposing that requirement." We are not persuaded.
To implement the registration requirement in section 290.006, "the 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 state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (People v. Hofsheier, supra, 37 Cal.4th at p. 1197.)
Defendant first argues that the trial court "simply concluded that the jury could only have found the battery to be the penis touching incident and not any other touching incident as postulated by [defendant]. It failed to give its reasons for rejecting the innocent explanation. Since the jury declined to find [him] guilty of any sexual misconduct, the court's finding of such conduct required a statement of reasons."
Imposition of the discretionary sex offender registration requirement is a sentencing decision. (People v. Garcia, supra, 161 Cal.App.4th at p. 483.) Complaints about the trial court's articulation of its reasons to support that exercise of discretion cannot be raised for the first time on appeal. (People v. Bautista (1998) 63 Cal.App.4th 865, 868-871.)
Relying upon those principles, the Attorney General urges that defendant's challenge to the adequacy of the trial court's statement of reasons for finding that the battery was committed for purposes of sexual gratification is forfeited because it was not raised below. We do not agree. Based upon her interpretation of the jury's verdict, defense counsel objected, in general, to imposing the registration requirement, and, in specific, to the court's finding that the battery was committed for the purpose of sexual gratification. In response, the trial court explained why it had reached its conclusion: it believed Esmerelda's testimony as well as defendant's pretrial statement to Detective Rizo that he had taken his penis out of his boxer shorts in front of Esmerelda. Given this context, defendant's objection was sufficient to preserve his claim for review. We turn to the merits of this claim.
To the extent that defendant argues that the trial court failed to sufficiently state its reason(s) for finding that the battery was sexually motivated, he appears to believe that the trial court was required to state why it believed Esmerelda's testimony and defendant's pretrial statement. There is no such requirement. It was sufficient for the trial court to state that it found Esmerelda credible; that it believed the basis of the battery conviction was the incident when defendant took his penis out of his boxer shorts, lay next to Esmerelda, and placed his penis on her; and that it disbelieved defendant's trial testimony in which he attempted to recant the statement made to Detective Rizo.
To the extent that defendant suggests that trial court's finding that he committed the battery for purposes of sexual gratification was an abuse of discretion because the jury acquitted him of continuous sexual abuse, precedent is to the contrary. People v. Towne (2008) 44 Cal.4th 63 held that in making a discretionary sentencing decision, the trial court "is not prohibited from considering evidence underlying charges of which a defendant has been acquitted." (Id. at p. 71.) It found that "[n]othing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that [he] was guilty beyond a reasonable doubt of related offenses." (Id. at pp. 85-86.) Permitting the trial court to consider that evidence does not violate any constitutional provision because facts relevant to sentencing need be proved only by a preponderance of the evidence. (Id. at p. 86.) Thus, a trial court, in making a sentencing choice such as the decision to require sex offender registration, may "take into account all of the evidence related to defendant's conduct in committing that offense." (Id. at p. 89.) It therefore follows that the trial court did not err in considering evidence related to the continuous sexual abuse charge in finding that the battery was committed for purposes of sexual gratification.
Lastly, we turn to the requirement that the trial court state its reason(s) for requiring sex registration.
Defendant contends that the trial court failed to state adequate reasons for requiring him to register as a sex offender because it made no specific finding that he would reoffend. In that regard, defendant advances a fact-specific argument to support his claim that "there was no evidence that he would reoffend." The Attorney General argues the claim has been forfeited. This time, the Attorney General is correct. Defendant never objected to the trial court's failure to make a finding that he was likely to reoffend and never raised many of the facts he now sets forth in his brief that allegedly support a contrary conclusion. "This [purported] defect could easily have been prevented and corrected had it been brought to the court's attention." (People v. Bautista, supra, 63 Cal.App.4th at p. 868, citing People v. Scott (1994) 9 Cal.4th 331, 353.) Consequently, defendant has forfeited the claim for appellate review. (People v. Bautista, supra, 63 Cal.App.4th at p. 868.)
At the sentencing, trial counsel noted that defendant was 61 years old, had no criminal record, had worked at the same job since 1987 and that his sons had testified he was a good father.
Anticipating this conclusion, defendant urges that trial counsel's failure to make the required objection constitutes prejudicial ineffective assistance of counsel. In the interests ofjudicial economy, we will reach the merits of defendant's argument. (People v. Norman, supra, 109 Cal.App.4th at pp. 229-230.)
The trial court's finding that, based upon the facts of the case, the defendant should be required to register as a sex offender is reviewed for abuse of discretion. (See Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 79.) In that regard, "[b]road deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) When, as here, no express finding was made, "'it is implied that the trial court . . . made whatever findings were necessary to support [its] order.'" (People v. Fulkman (1991) 235 Cal.App.3d 555, 560.) The trial court's ruling will be affirmed unless it is "arbitrary, capricious or patently absurd." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Defendant relies upon the statement in People v. Thompson (2009) 177 Cal.App.4th 1424 that in exercising its discretion under section 290.006, "the trial court must consider the likelihood defendant will reoffend." (Id. at p. 1431, italics added.) From this statement, defendant extrapolates a holding that an explicit finding about the likelihood of re-offense is required before the trial court can exercise its discretion to require sex registration. We are not persuaded. Nothing in section 290.006 or People v. Hofsheier, supra, 37 Cal.4th 1185 (the leading California Supreme Court case interpreting the statute) requires the trial court to make that specific determination. Instead, we interpret decisional law to state only that the likelihood of reoffending is one of many factors the trial court is to consider before making an order requiring registration. (See, e.g., People v. Hofsheier, supra, 37 Cal.4th at p. 1196 [One of the purposes of the sex offender registration requirements is "'to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.'"] and People v. Garcia, supra, 161 Cal.App.4th at p. 485 ["Where registration is discretionary, then, one consideration before the court must be the likelihood that the defendant will reoffend."].)
Consequently, the issue is whether the trial court's implicit finding that the facts of the case warrant lifetime sexual offender registration was an abuse of discretion. It was not. Defendant was 55 years old and Esmerelda was 7 years old when the underlying events occurred. Defendant lived with Esmerelda's aunt with whom he had five children. Esmerelda lived next door to defendant and frequently visited his home. Defendant took advantage of the familial relationship to commit a crime for his sexual gratification. In one instance when he and Esmerelda were alone in his bedroom, he removed his erect penis from his boxer shorts and placed his leg over Esmerelda so that his penis touched her body. Defendant admitted to Detective Rizo that he had sexual fantasies about young Esmerelda, and, at trial, conceded that he had become sexually aroused when she danced in front of him. In light of this record, the trial court did not abuse its discretion in requiring defendant to register as a sex offender.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.