Opinion
F052235
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH STEVENSON NIETO, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janet E. Neeley, Louis M. Vasquez, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Joseph Nieto appeals for a third time after a limited remand resulted in his receipt of all the relief to which he was entitled. Instead of attacking the proceedings on remand, he attacks the trial courts order requiring him to register as a sex offender pursuant to Penal Code former section 290, subdivision (a)(2)(E). We rejected his attacks to the sex offender registration requirement (hereafter registration requirement) in his last appeal, and our remand order was limited to issues unrelated to the registration requirement. Accordingly, we will reject his argument on both procedural and substantive grounds and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted. Former section 290 was repealed and replaced with sections 290 through 290.023, inclusive, effective October 13, 2007. (Stats. 2007, ch. 579, §§ 7-31.) We refer herein to section 290s provisions as they were numbered and stated at the time of Nietos conviction and sentencing.
FACTUAL AND PROCEDURAL SUMMARY
Nietos long legal journey began because of acts that occurred in the 1994-1995 school year at Lincoln Elementary School. The issues raised by this appeal do not require recitation of the testimony of various students who alleged they were touched inappropriately by Nieto. Nor need we describe Nietos testimony in detail. It is sufficient to note that he admitted he had contact with some students that was inappropriate in the context of a teacher-student relationship, but claimed the contact was not sexually motivated, nor was it ever intended to be.
By our count, 13 students testified they were touched inappropriately by Nieto.
Nietos first trial occurred in 1998. The jury found Nieto guilty of five counts of lewd touching (§ 288, subd. (a)), three counts of misdemeanor battery (§ 242), and one count of misdemeanor annoying or molesting a child (§ 647.6). Nieto was acquitted on seven similar counts. He was sentenced to a total term of 25 years to life.
We affirmed the judgment in his appeal in an opinion filed in June 2001. (People v. Nieto (June 28, 2001, F031065) [nonpub. opn.].) In an opinion filed on the same date, however, we granted Nietos petition for a writ of habeas corpus on the sole issue of whether two jurors committed misconduct. (In re Nieto on Habeas Corpus (June 28, 2001, F035552) [nonpub. opn.].) We ordered the trial court to appoint a special referee to hold a hearing and make written findings on the question of whether misconduct occurred, whether there was admissible evidence to establish misconduct, and any other findings the referee deemed necessary.
The special referee filed his findings with this court in December 2001. We issued an opinion in April 2002 concluding there had been prejudicial juror misconduct by two jurors, which required reversal of the entire judgment. (In re Nieto on Habeas Corpus (Apr. 5, 2002, F035552) [nonpub. opn.].) The concurring opinion emphasized that reversal was not the fault of the trial court, the prosecutor, or the defense attorney.
In 2004, Nieto was tried for a second time on the charges of which he was originally convicted. The jury found Nieto guilty of three counts of misdemeanor battery, but deadlocked on each of the remaining counts. The trial court ordered a mistrial on those counts and sentenced Nieto to time served and ordered him to register as a sex offender. Nieto again appealed.
While Nietos appeal was pending, he was tried for the third time on the charges on which the jury did not reach agreement in the second trial. This trial resulted in an acquittal on four of the remaining counts and a deadlocked jury on the fifth count. It appears the district attorney chose not to seek a fourth trial on the remaining count.
We issued our opinion in July 2006 affirming the convictions from the second trial and the sex offender registration requirement. (People v. Nieto (July 18, 2006, F046345) [nonpub. opn.] (F046345).) We remanded the matter to the trial court to do two things. It was to calculate the total number of days credit to which Nieto was entitled and, since the time in prison already served by Nieto greatly exceeded any possible sentence to which he was exposed, whether he was entitled to a monetary credit pursuant to the provisions of section 2900.5, subdivision (a) against the fines imposed as a result of the convictions.
Section 2900.5, subdivision (a) provides that if a defendant is incarcerated for a period of time in excess of the sentence he ultimately receives, then he is entitled to a monetary credit for the extra time served that may be applied to any fines also imposed as a result of the conviction.
When the matter returned to the trial court, Nieto moved for a reconsideration of the registration requirement. He argued that his acquittal of all felony counts established that he did not have any sexual motivation when he had contact with his students and, therefore, he should not be required to register as a sex offender. The trial court concluded it had no jurisdiction to change the prior judgment and denied the motion. The trial court also reversed the fines imposed for the misdemeanor convictions and ordered Fresno County to reimburse Nieto for any sums he had paid towards those fines. Nieto appeals again, this time focusing on the registration requirement.
DISCUSSION
Nietos only contention here is that his Sixth Amendment right to a jury trial, as established in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), was violated when the trial court ordered him to register as a sex offender. Nieto does not discuss the problem raised by his appealing after a limited remand when the remand was unrelated to the registration requirement.
Nieto stands convicted only of battery, a violation of section 242. A person convicted of violating section 242 is not automatically required to register as a sex offender pursuant to section 290. The trial court imposed the registration requirement pursuant to former section 290, subdivision (a)(2)(E) which, at the time, permitted a trial court to order a defendant convicted of any crime to register as a sex offender if the trial court determined the offense was committed "as a result of sexual compulsion or for purposes of sexual gratification." The trial court made the requisite findings when it imposed the registration requirement. Nieto argues the Sixth Amendment requires these findings be made by a jury using the beyond-a-reasonable-doubt standard.
Former section 290, subdivision (a)(2)(E) is now restated as section 290.006, with substantially similar requirements. (Stats. 2007, ch. 579, § 14.)
Nieto raised numerous objections to the registration requirement in the appeal after his second trial. We rejected his arguments and affirmed the order requiring Nieto to register as a sex offender. Our remand was limited to custody credits and the fines imposed by the trial court.
After the People pointed out the problem in their respondents brief, Nieto argued in the last two pages of his reply brief that he had not waived (forfeited) the argument because he could not make the argument until the United States Supreme Court issued its opinion applying Blakely and its progeny to Californias determinate sentencing law (DSL) in the case of Cunningham v. California (2007) 549 U.S. ___ (Cunningham), which overruled California Supreme Court precedent. Nieto also suggests the issue has not been waived because the registration requirement may be invalid or the trial court lacked jurisdiction.
The California Supreme Court has found that a Blakely claim will not be deemed waived where the issue was not raised in the trial court in some circumstances. The California Supreme Court responded to Cunningham with two decisions, People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. The first issue discussed in Black was whether the defendant, who had not objected to the imposition of an aggravated term on Blakely grounds at the sentencing hearing, had forfeited the right to assert his sentence was imposed in violation of his Sixth Amendment right to a jury trial. The Supreme Court began by citing the general rule that evidentiary and procedural issues generally were forfeited unless a timely objection was made. It also noted, however, that "`this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change. [Citations.]" (Black, at p. 810.) The Supreme Court held this exception applied because the sentencing was held before Blakely was decided and there was no California authority supporting the proposition that the DSL was subject to Apprendis jury trial requirements, rendering it unlikely that competent and knowledgeable counsel would have anticipated Blakely. "We conclude that, at least with respect to sentencing proceedings similar to the one here at issue, preceding the Blakely decision, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial." (Black, at p. 812.)
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
Nieto finds himself in a much different situation. First, he originally was sentenced after Blakely was decided. Blakely was decided in 2004. Nieto was sentenced 51 days later. Thus, he does not fall within the group of defendants sentenced before Blakely was decided.
Second, the obstacle that Nieto faces is not that he failed to object in the trial court, but that he is seeking to raise a new issue after a limited remand. In his first appeal, Nieto made numerous arguments seeking reversal of the registration requirement. We rejected each of those arguments and upheld the imposition of the registration requirement. He is now asserting a new argument to support his position that he should not have to register as a sex offender. But this issue already has been decided and is unrelated to the issues considered by the trial court on remand. As stated in People v. Murphy (2001) 88 Cal.App.4th 392, 396, Nieto cannot make this argument now "not because he waived it, but because the time in which to make it has passed." (See also People v. Senior (1995) 33 Cal.App.4th 531, 535.)
Nieto fares no better even if we proceed to the merits of the issue. His argument is an attempt to extend Blakely beyond any rational boundaries. Cunningham and Blakely both apply the rule first stated in Apprendi, namely, that a fact that increases the sentence for a crime beyond the statutory maximum must be submitted to the jury and found true beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 864, 868]; Blakely, supra, 542 U.S. at p. 301.) Specifically, the issue in Cunningham was the imposition of an aggravated term under Californias DSL, and the issue in Blakely was the imposition of an extraordinary sentence beyond the maximum that would otherwise be imposed for the crime to which the defendant pled.
Nieto is relying on these cases to argue the imposition of the registration requirement violated his Sixth Amendment right to a jury trial. The question becomes, obviously, whether the registration requirement increased Nietos sentence within the meaning of Cunningham and Blakely.
The answer to this question was provided in our decision in the last appeal. (F046345, supra.) The California Supreme Court has concluded that section 290 was designed to assist law enforcement and protect the public. (In re Alva (2004) 33 Cal.4th 254, 261.) It is, therefore, regulatory in both purpose and effect. (Ibid.) Accordingly, the registration requirement is not punishment for the purposes of the constitutional prohibition against cruel and unusual punishment (ibid.; U.S. Const., 8th Amend.; Cal. Const., art. I, § 17), or for the purposes of ex post facto analysis (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; People v. Castellanos (1999) 21 Cal.4th 785, 788). Based on this reasoning, we concluded that the registration requirement was not punishment within the meaning of the double jeopardy clause of either the federal (U.S. Const., 5th Amend.) or state (Cal. Const., art. I, § 15) Constitutions.
The same reasoning demands that we reject Nietos reliance on Blakely and Cunningham. Both of those cases preclude punishment that exceeds the statutory maximum, unless the jury makes necessary factual findings using the beyond-a-reasonable-doubt standard. It stands to reason that if the registration requirement is not punishment for the purposes of analysis under the cruel and unusual punishment, ex post facto, or double jeopardy clauses of the state and federal Constitutions, then it is not punishment for the purposes of analysis under Cunningham and Blakely. Therefore, those cases have no application to the registration requirement and Nietos argument fails. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061-1065.)
Nietos reliance on People v. Tye (1984) 160 Cal.App.3d 796 (Tye) is misplaced. In 1983, the year of the crimes with which Tye was charged, section 290 provided that a person convicted of violating section 272 (contributing to the delinquency of a minor) must register as a sex offender if the offense involved lewd and lascivious conduct. Tye was charged with having sexual intercourse with a minor, in violation of section 288, subdivision (a). The trial court instructed the jury that contributing to the delinquency of a minor was a lesser included offense to the lewd and lascivious conduct charge. The jury returned a guilty verdict only on the section 272 count, which was a misdemeanor. The trial court ordered Tye to register as a sex offender, reasoning that the only conduct with which Tye was charged was related to his having sex with a minor, and this conduct was necessarily lewd and lascivious in nature.
The appellate court reversed because it was impossible to tell on what conduct the jury based its guilty verdict. The jury instructions for the section 272 count were very broad and not limited to conduct that would be considered lewd and lascivious. The jury was not asked to make a special finding that the conduct on which the verdict was based was lewd and lascivious. Because it was impossible to tell the exact conduct on which the jury based its guilty verdict, and because the jury found Tye not guilty of violating section 288, subdivision (a), the appellate court concluded that it could not be determined with any degree of certainty that the section 272 conviction was based on lewd and lascivious conduct. (Tye, supra, 160 Cal.App.3d at pp. 802-803.)
There is a similarity between Tye and the case before us. The statutes at issue in both cases required an additional finding before the registration requirement could be imposed on the defendant. In Tye, the registration requirement could be imposed only if the violation of section 272 involved lewd and lascivious conduct. In Nietos case, the registration requirement could be imposed only if the underlying offense was committed for the purpose of sexual gratification or because of sexual compulsion.
The difference between the two cases, however, is the evidence supporting the required finding. The appellate court in Tye found, in essence, that there was not sufficient evidence to support the trial courts conclusion that the section 272 violation involved lewd and lascivious conduct. This conclusion was based on the jury finding Tye not guilty of violating section 288, subdivision (a), and then finding him guilty of violating section 272 without any indication that the verdict was based on lewd conduct.
The specific subdivision at issue here, however, required the trial court to make the determination whether the offense was committed for the purposes of sexual gratification or because of sexual compulsion. The trial court made the requisite findings, and Nieto has never challenged those findings as being unsupported by substantial evidence. Had Nieto challenged the sufficiency of the evidence supporting the trial courts findings, the challenge would have failed. Specifically, there was testimony that Nieto touched the three girls inappropriately, and that his motivation for doing so likely was sexual compulsion or gratification.
Moreover, there is an important distinction between this case and Tye. The jury found Tye not guilty of committing a lewd and lascivious act on the victim before it found him guilty of contributing to the delinquency of a minor. This verdict fueled the appellate courts conclusion that the lesser crime did not involve lewd conduct. Here, Nieto was convicted of the crimes charged. While it is true the crimes did not include a sexual component, it also is true the jury did not conclude the actions underlying these crimes were not sexually motivated. The judge in this case was working with a blank slate when considering the motivation for the crimes. The judge in Tye was not in the same position. These two distinctions, the lack of a jury finding and the differences between the two statutes, render Tye inapposite.
DISPOSITION
The judgment is affirmed.
We concur:
VARTABEDIAN, Acting P.J.
GOMES, J.