Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA091331, Charles E. Horan, Judge.
Antonio H. Rodriquez; and Walter L. Gordon, III, 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, Keith H. Borjon and Janet Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Steven A. Nevarez, appeals the judgment entered following his no contest plea to burglary (Pen. Code, § 459). He was sentenced to state prison for a term of two years and a discretionary sex-offender registration requirement was imposed.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
1. Evidence produced at preliminary hearing.
As there was no trial, the following facts are taken from the preliminary hearing.
On June 31, 2010, a 14-year-old minor was home alone at her mother’s condominium in Baldwin Park.
The minor heard the doorbell ring and went downstairs to see who was there. She looked through the front door peephole, but did not see anyone so she returned to her room. Five minutes later the minor heard the front door quietly open. Then she saw a shadow outside her room. The minor walked to the doorway of her mother’s bedroom and saw defendant Nevarez “going through” one of her mother’s dresser drawers. This drawer contained her mother’s nightgowns, pajamas and underwear.
The minor knew Nevarez because he lived in the same condominium complex. When the minor said “hello” to him, Nevarez came out into the hallway and asked if she was home alone. When she said yes, Nevarez replied, “Okay. I’ll be back.” Then he left.
2. Other evidence of Nevarez’s intentions.
A report of this incident prepared by the Baldwin Park Police Department contained the following information. According to the minor’s mother, Nevarez lived in the condominium right next door. During the three years the mother had known him, Nevarez had tried to hug her whenever he greeted her. Two months before this incident, Nevarez knocked on her front door dressed only in a pair of boxer shorts. He asked to borrow some eggs.
The police report contained a statement by Nevarez giving his version of the incident. He said he went next door because he had a crush on the mother and he wanted to see if she was home. After standing outside her front door for a short time and not hearing anything, he opened the door and walked in. He went upstairs to the master bedroom and opened a dresser drawer. Nevarez explained: “I wasn’t going to take anything. I just saw underwear and I just looked through them.”
3. Nevarez’s plea and sentence.
On November 15, 2010, Nevarez pled no contest to residential burglary. The trial court told him it did not yet know what sentence it would impose, and that anything from probation to a six-year prison term was possible. Prior to sentencing, Nevarez would be transferred to the Department of Corrections and Rehabilitation for a 90-day diagnostic study in order to determine his fitness for probation. The trial court also advised Nevarez that, given the nature of the incident, the court would have discretion to require him to register as a sex offender. Nevarez said he understood.
A diagnostic study and recommendation was filed on February 14, 2011. The study found Nevarez had accepted only partial responsibility for his conduct because he denied having rummaged through his neighbor’s dresser drawer. Asked what he had been doing inside his neighbor’s condominium, Nevarez said he had no idea. Appended to the study was a psychological evaluation done at North Kern State Prison on December 13, 2010. This evaluation included a different version of how Nevarez came to be inside his neighbor’s condominium. This time Nevarez said he happened to be walking by when he noticed his neighbor’s front door was ajar, so he decided to go in just to make sure everything was alright. He denied having gone through his neighbor’s personal things, and explained his presence in her bedroom by saying he had only wanted to look out her bedroom window.
At sentencing, the trial court remarked on Nevarez’s failure to accept responsibility, noting the diagnostic study indicated Nevarez had told police “he had a crush” on his neighbor “and looked at her drawer of underwear, ” but that he later told a “psychiatrist, I didn’t do that. I am a good Samaritan.” The court said Nevarez’s dishonesty “goes directly... to whether this fellow is going to be a fit candidate for local supervision out there. If he considers his conduct to be that of a good Samaritan, I don’t. It’s a sexual crime. He broke into a lady’s house with her 14-year-old daughter in the house, went into her bedroom and rummaged through her underwear drawer.”
The trial court continued: “My experience has been that men who end up going through lady’s underwear drawers when breaking in do so for a sexual purpose in the great majority of cases, and oftentimes that conduct escalates and ends up in very tragic situations for all involved. That is my concern here. [¶] I see, frankly, no insight whatsoever.” “This man has pled to a felony, presumably not just because he thought it would be a neat thing to do, [but] because the court felt like he probably understood the gravity of his conduct. But now he tells the people up at the prison, ‘I really didn’t do anything. I am innocent. I am a good Samaritan.’ ” Regarding Nevarez’s statement that he did not know why he had gone into his neighbor’s condominium, the trial court said: “And I am to accept that? I know why he was there. He should know why he was there, and if he doesn’t, he may be more dangerous than I think.”
All this led the trial court to believe Nevarez posed a future danger: “So he’s either minimizing – I don’t want to use the word lying – but he’s either just minimizing what went on, or he really has zero insight into what got him into that house, which means he will go back into somebody’s house.” “The problem is this: he’s got a problem with – I don’t want to use the word sexual compulsion; I’m not a psychiatrist. He has crossed a line that we don’t like to see crossed. He’s entered a person’s home with a sexual motivation, while a child was in the house. That is a red – a siren goes off in the court’s head.”
The trial court then denied probation and imposed a two-year prison term. The court also ordered Nevarez to register as a sex offender under section 290.006, saying: “The court will find as a matter of fact, an obvious fact, the defendant’s conduct was, while not necessarily the result of a sexual compulsion, was obviously sexually motivated. He didn’t go into the house to steal. He went into the house to involve himself in sexual conduct... involving the underwear of the owner. [¶] So it appears to the court, and I will state on the record as required by 290.006, those are the facts the court relies upon in requiring registration. It is essential that he register.”
CONTENTIONS
1. The sex-offender registration requirement violates Nevarez’s constitutional rights.
2. The trial court failed to set forth the required factual basis for imposing discretionary sex-offender registration.
DISCUSSION
1. The discretionary sex-offender registration order did not violate Nevarez’s constitutional rights.
Nevarez contends imposition of the discretionary sex-offender registration requirement violated his constitutional rights to a jury trial, to equal protection, and to due process. These claims are meritless.
a. California’s Sex Offender Registration Act.
Section 290, part of California’s Sex Offender Registration Act, requires “[e]very person described in subdivision (c), for the rest of his or her life while residing in California... to register with the chief of police [or other local authority]... within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act.” (§ 290, subd. (b).) Subdivision (c) of section 290 sets out a list of offenses subjecting the defendant to mandatory sex-offender registration.
Section 290.006 provides for discretionary sex-offender registration: “Any person ordered by any court to register pursuant to the [Sex Offender Registration] Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.”
“[D]iscretionary registration does not depend on the specific crime for which a defendant was convicted. Instead, the trial court may require a defendant to register... even if the defendant was not convicted of a sexual offense. In People v. Olea (1997) 59 Cal.App.4th 1289..., for example, a defendant convicted of burglary was required to register for life as a sex offender because the trial court found that the defendant had entered the victim’s residence intending to commit a sexual assault.... [I]f a defendant is convicted of a crime listed under the mandatory lifetime registration provision [citation], the trial court must impose a registration requirement; under the discretionary provision [citation], it may require lifetime registration if it finds the crime to have a sexual purpose.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198.)
To trigger registration under 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.)
b. There was no violation of Nevarez’s right to a jury trial.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (147 L.Ed.2d 435), the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Nevarez argues there was Apprendi error here because, “except for the minor’s testimony at the Preliminary Hearing that Appellant entered the apartment and was going through her mother’s dresser drawer, the balance of the evidence used to find Appellant’s conduct was ‘sexually motivated’ was hearsay from the probation report, police report and diagnostic study. In other words, Appellant was convicted of a sexual offense, on hearsay evidence, by a judge without a jury, and without a requirement that the evidence prove the issue beyond a reasonable doubt.”
But Apprendi does not apply in this situation because “sex offender registration is not considered a form of punishment under the state or federal Constitution.” (People v. Hofsheier, supra, 37 Cal.4th at p. 1197; see also People v. Picklesimer (2010) 48 Cal.4th 330, 343-344 [Apprendi does not apply to a discretionary determination to require sex offender registration under section 290.006].)
However, citing People v. Mosley (2010) 188 Cal.App.4th 1090 (review granted January 26, 2011), Nevarez points out that, in the aftermath of the recently-enacted Jessica’s Law (Proposition 83), which added certain residency restrictions to California’s sex-offender registration scheme, our Supreme Court is reconsidering this Apprendi issue.
“On November 7, 2006, the voters enacted Proposition 83, The Sexual Predator Punishment and Control Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006); hereafter Proposition 83 or Jessica’s Law). Proposition 83 was a wide-ranging initiative intended to ‘help Californians better protect themselves, their children, and their communities’ [citation] from problems posed by sex offenders by ‘strengthen[ing] and improv[ing] the laws that punish and control sexual offenders’ [citation]. [¶] Among other revisions to the Penal Code, Proposition 83 amended section 3003.5, a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside. New subdivision (b), added to section 3003.5, provides: ‘Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.’ (§ 3003.5, subd. (b)....) The new residency restrictions took effect on November 8, 2006, the effective date of Proposition 83.” (In re E.J. (2010) 47 Cal.4th 1258, 1263, fns. omitted.)
Mosley concluded that imposing the new residency rules as part of sentencing on the underlying offense did constitute punishment. However, we disagree with Mosley’s reasoning because it is contradicted by other Supreme Court authority. In the case of In re E.J., supra, 47 Cal.4th at p. 1278, our Supreme Court indicated, in the context of rejecting ex post facto and retroactivity claims, that the new residency restrictions do not trigger Apprendi protection because they are not punitive: “Although [petitioners] 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.” (Ibid., see also People v. Picklesimer, supra, 48 Cal.4th at p. 344 [noting that a hypothetical assuming Proposition 83’s restrictions constituted punishment would be contradicted by the reasoning of In re E.J.].)
Hence, we conclude Nevarez’s Apprendi claim is meritless.
c. There was no equal protection violation.
“ ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” (In re Gary W. (1971) 5 Cal.3d 296, 303.) “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier, supra, 37 Cal.4th at p. 1199.) “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ [Citations.]” (Id. at p. 1199-1200.) “If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Nevarez contends his equal protection rights were violated because a defendant subjected to mandatory sex-offender registration for having committed an enumerated sex offense “gets a jury trial along with the full panoply of 5th, 6th and 14th Amendment protections. Hearsay evidence is inadmissible unless it comes in under some exception. Appellant, however had none of these rights, nor any opportunity to contest the finding, except on appeal. There is no rational basis for this disparate treatment between these two class [sic] of offenders.”
Nevarez’s claim fails because these two groups are not similarly situated. “The registerable crimes listed in section 290, subdivision (c) may be characterized generally as sexual offenses committed by means of force or violence, violent offenses committed for sexual purposes, sexual offenses committed against minors, or offenses that involve the sexual exploitation of minors.” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78, fn. omitted.) Section 290.006 relates to crimes not included within section 290, but which are sexually motivated. Nevarez’s intended crime was presumably stealing his neighbor’s underwear, a different category of crime entirely from the offenses warranting mandatory sex-offender registration.
Even more fundamentally, Nevarez’s claim fails because it turns equal protection analysis on its head. It is mandatory registration, not discretionary registration, which is the more onerous condition.
In Hofsheier, a 22-year-old man was convicted of violating section 288a, subdivision (b)(1), for having engaged in voluntary oral copulation with a 16-year-old girl. As a result of that conviction, Hofsheier was ordered to register as a sex offender under section 290. Our Supreme Court held this imposition of mandatory registration violated equal protection because there was no rational basis for distinguishing between Hofsheier’s offense and the crime of voluntary sexual intercourse with a minor (§ 261.5, subd. (c)), which does not require mandatory registration. Hofsheier pointed out: “The principal difference between mandatory registration [citation] and discretionary registration [citation] is, of course, that the latter leaves the trial judge with the option of refusing to order registration.” (People v. Hofsheier, supra, 37 Cal.4th at p. 1197) In addition, “unlike a person charged with a sex offense requiring mandatory lifetime registration as a sex offender under section 290, a defendant charged with an offense that does not require such registration may be able to stipulate in a plea bargain that the trial court judge will not order registration.” (Id. at p. 1198.) Hence, subjecting Hofsheier to “mandatory registration... would deny [him] the equal protection of the laws.” (Id. at p. 1192-1193.)
A fundamental element of an equal protection claim is that the defendant has been treated worse than someone similarly situated. Mandatory sex-offender registration is the more serious condition.
Finally, Nevarez had ample opportunity at the pre-sentencing and sentencing phases of this proceeding to contest the information relied on by the trial court in deciding to order discretionary sex-offender registration.
Nevarez’s equal protection claim is meritless.
d. There was no due process violation.
Nevarez contends his due process rights were violated because the trial court’s imposition of discretionary sexual registration violated the terms of his plea agreement. This claim is meritless.
Nevarez asserts his “written plea agreement excluded sex offender registration as a consequence.” Not so. Nevarez entered an open plea of no contest to the burglary charge. The written document he refers to was a pre-printed Felony Advisement of Rights, Waiver, and Plea Form. Nevarez initialed most of the advisement boxes on that form, but he did not initial the box next to this statement: “I understand that I will be required to register with my local police agency as... [a] sex offender, and that if I fail to register or keep my registration current, new criminal charges may be filed against me.”
Nevarez signed that plea form on November 15, 2010. Later that same day, in the course of accepting Nevarez’s no contest plea, the trial court told him, “[I]f you plead guilty today, first step will be I will send you up to state prison for a 90-day diagnostic.” The trial court then continued:
“What happens is you go into custody today. They will transport you up to the state prison, and the psychiatrists and other folks will speak to you up there. During that 90-day period, they write a report.... [¶] Once we get the report, that will be your sentencing date. Then I will.... decide what your sentence will be. It will be anywhere from time served and a grant of probation all the way up to six years in the state prison. [¶] Do you understand that?
“The Defendant: Yes, Your Honor.
“The Court: There is one more thing... if in any case the court feels that or finds that criminal conduct has been prompted by – has a sexual motivation, even in a non-sex crime, the court can order registration as a sex offender. That could happen as well. [¶] Are you aware of that?
“The Defendant: Yes, I am.
“The Court: Typically it’s only in certain kind of cases, sex cases. But the code says if in any case the court feels that the criminal conduct is sexually motivated, it could be any crime, then the court can order registration. That may be a possibility in your case as well given the little bit I know about it. [¶] Do you understand what I’m saying?
“The Defendant: Yes, Sir.” (Italics added.)
Following this exchange, Nevarez pled no contest.
This record demonstrates Nevarez was expressly advised the trial court might impose discretionary sex offender registration as part of his sentence. Likewise, it plainly appears Nevarez was not asked to initial the corresponding advisement box on the plea form because, at that point in the proceedings, the trial court had not yet decided if registration were appropriate. Nevarez did not lack notice of discretionary registration, and the imposition of sex-offender registration did not violate the terms of his guilty plea.
2. There was a factual basis for ordering discretionary sex-offender registration.
Nevarez makes a series of claims relating to the trial court’s factual determination that sex-offender registration was warranted. These claims are meritless.
As noted, section 290.006 allows the trial court to impose sex-offender registration in any case “if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.”
The trial court concluded that, although Nevarez’s conduct was not necessarily the result of a sexual compulsion, it had obviously been sexually motivated. Nevarez argues, “It’s questionable if a sexually motivated act is necessarily one done for the purpose of sexual gratification.” This argument is meritless. It appears to us that, by definition, a sexually-motivated crime is a crime done to attain sexual gratification.
Nevarez argues the factual basis was flawed because, at the diagnostic evaluation, he denied his act had been committed for sexual gratification. But this argument presumes the trial court was somehow bound by Nevarez’s protestation his motive for committing the burglary had not been sexual. The trial court, obviously, was not so bound.
Nevarez complains he was not referred for evaluation by means of a State-Authorized Risk Assessment Tool for Sex Offenders. (See § 1203, subd. (d).) He acknowledges such a referral is statutorily required only if the Probation Department recommends discretionary sex-offender registration, but he does not cite any authority mandating such a referral in a case like this one, where the Probation Department made no such recommendation.
Section 1203, subdivision (d) provides, in pertinent part: “If the person was convicted of an offense that requires him or her to register as a sex offender pursuant to Sections 290 to 290.023, inclusive, or if the probation officer recommends that the court, at sentencing, order the offender to register as a sex offender pursuant to Section 290.006, the court shall refer the matter to the probation officer for the purpose of obtaining a report on the results of the State-Authorized Risk Assessment Tool for Sex Offenders administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable, which the court shall consider.”
Nevarez argues section 290.006 requires “a two step process, with only the first step being the finding of sexual gratification. In the present case, the Court did not comply with the second step by stating valid reasons for lifetime registration.” We disagree. The trial court made it very clear it believed Nevarez’s failure to accept responsibility for his actions demonstrated he was likely to reoffend, and that this mandated registration. The trial court said: “My experience has been that men who end up going through lady’s underwear drawers when breaking in do so for a sexual purpose in the great majority of cases, and oftentimes that conduct escalates and ends up in very tragic situations for all involved.” “I don’t want to use the word lying – but he’s either just minimizing what went on, or he really has zero insight into what got him into that house, which means he will go back into somebody’s house.” (Italics added.)
At most, it might be said the trial court failed to clearly articulate these statements as its reasons for requiring registration. If so, it “would be a needless waste of judicial resources to remand to allow the court” to provide “a more complete statement of reasons....” (People v. Bautista (1998) 63 Cal.App.4th 865, 871 [inadequate statement of reasons for ordering discretionary sex-offender registration did not necessitate remand].)
Finally, Nevarez’s reliance on Lewis v. Superior Court, supra, 169 Cal.App.4th 70, for the proposition the trial court was required to find he was likely, in the future, to reoffend by committing a Section 290-type offense, is misplaced. Section 290.006 contains no such requirement. And in Lewis there was nothing in the record to suggest the defendant was likely to reoffend even in 1987, when he had originally been sentenced. “[I]t is undisputed that, in the 20 plus years since his conviction under section 288a, subdivision (b)(1), Lewis has committed no offenses requiring him to register as a sex offender and no offenses similar to those requiring registration.” (Lewis v. Superior Court, supra, at p. 79.) In other words, there was nothing whatsoever in the record to suggest Lewis was likely to reoffend.
Lewis was one of the Hofsheier-hearing cases. These are cases which, in the aftermath of Hofsheier, were remanded to the trial court for a discretionary sex-offender registration finding because mandatory sex-offender registration violated equal protection. (See People v. Hofsheier, supra, 37 Cal.4th at p. 1193.)
We conclude there was an adequate factual basis for imposing the discretionary sex-offender registration requirement on Nevarez.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J.KITCHING, J.