Opinion
G062011
12-19-2023
THE PEOPLE, Plaintiff and Respondent, v. PAUL RICCI, Defendant and Appellant.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. M-19130, Karen L. Robinson, Judge. Reversed.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Paul Ricci appeals from the trial court's order denying his petition to terminate his adult sex offender registration requirement. Ricci argues the court abused its discretion in evaluating the statutory factors it is obligated to consider in determining whether "community safety would be significantly enhanced by [Ricci's] continued registration." (Penal Code § 290.5, subd. (a)(2).) We agree. The court's analysis of the factors does not reflect an objective assessment of whether Ricci, whose sole offense was committed 29 years ago, presents a significant risk of reoffending-and thus that community safety would be significantly enhanced by his continued registration. Additionally, the court erred when it openly speculated that Ricci may have continued molesting children without any evidence to support that inference.
All statutory references are to the Penal Code unless otherwise noted.
We reverse the order.
FACTS
In 1993, Ricci pleaded guilty to one count of first-degree child molestation in Washington State. The offense occurred while Ricci was babysitting the four-year-old child of his longtime friends. Later that evening the victim's parents observed their daughter rubbing her vagina and rectum. When they asked what she was doing, she replied, "This is what Uncle Paul does to me. Uncle Paul is the only one who can do this." The child also told her parents that Ricci had taken off her bathing suit before rubbing her vagina and rectum. There was no evidence of penetration.
The district attorney acknowledges that the offense Ricci was convicted of under Washington law, a violation of Revised Code of Washington section 9A.44.083 prohibiting "sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim," is similar to a violation of California's Penal Code section 288, subd. (a).
Following his guilty plea, Ricci was sentenced to 68 months in state prison; that term was suspended pending Ricci's successful completion of 68 months of community supervision. The court also ordered that he register as a sex offender for life, an obligation that followed Ricci when he moved to California.
In August 2021, more than 28 years after his conviction, Ricci filed a petition pursuant to section 290.5, which allows termination of mandatory sex offender registration after a specified period, unless the court finds that community safety would be significantly enhanced by the petitioner's continued registration.
Ricci's petition alleges he was born in 1946, and he currently resides in Orange County, California. He was convicted of an offense requiring sex offender registration in Washington State, but he is not in custody or on parole, probation or any other form of supervised release. He was designated by the Department of Justice as a Tier 2 offender and has been registered as a sex offender for at least 20 years.
The district attorney opposed Ricci's petition. Although he acknowledged Ricci met the requirements for termination set forth in section 290, subdivision (e), the district attorney asserted the petition should nonetheless be denied because the nature of Ricci's offense-involving a young child and a breach of her parents' trust- demonstrated that community safety would be significantly enhanced by his continued registration.
The district attorney argued under California's three-tiered sex offender registration system, lifetime registration would be required for a person who has been charged and separately convicted of more than one offense under section 288, subdivision (a). While the district attorney acknowledged Ricci had been convicted of only a single offense under Washington's equivalent statute, he argued there was no evidence Ricci had not also molested his victim on other occasions, and then suggested the four-year-old victim's statement supported the inference that he had. The district attorney then argued if Ricci had molested his victim on more than one occasion, he could have theoretically been separately convicted of those offenses, in which case lifetime sex offender registration would have been mandated. The district attorney suggested our Legislature could not, therefore, have intended to impose a shorter registration period on Ricci in this case. The district attorney supported his opposition with a copy of the police report related to Ricci's offense and documents establishing his conviction; he provided no evidence relating to any of the other statutory factors.
In response to the district attorney's opposition, Ricci submitted evidence to support his claim that he presented little risk of reoffending, and thus there was no basis to conclude community safety would be significantly enhanced by continuing his term of registration. Ricci noted that he had been convicted of only one child molestation offense, involving a single victim, in 1993. Following his conviction, he participated in court-mandated therapy for over five years and attended sex offense seminars three to four times per year. He explained he had learned in therapy how sexual desires can be consuming if not controlled, to not place himself in certain situations, and to always question his own motives to determine if he was acting out of self-gratification. Ricci also successfully completed a sexual deviancy treatment program in 1998, and pointed out that completion of such a program has been shown to reduce the risk of recidivism.
Ricci stated he was retired and had been living in an "elderly living apartment complex" for 13 years. He noted he likes to spend his time outdoors and enjoys helping others in the complex. Ricci submitted several letters of support from his neighbors which attested to his friendly and helpful nature, the many favors he has done for them, and the trust they had in him.
The court nonetheless agreed with the district attorney's assertion that community safety would be significantly enhanced by continuing Ricci's sex offender registration. Although the district attorney had based his opposition exclusively on the nature of Ricci's offense (and the notion he must have molested his victim on other occasions), the court proceeded to evaluate all of the factors listed in section 290.5, subdivision (a)(3).
The court first characterized the facts of Ricci's offense as "horrific," noting it involved a "breach of trust" because it had occurred while Ricci was babysitting the victim. The court concluded the facts and circumstances of Ricci's offense "speak[] volumes against terminating his registration requirement."
Evaluating the second factor-the age and number of victims-the court observed that "[o]ne victim in this case that was a part of this conviction, and the age was, again, 4 years old versus a 46-year-old man. That speaks in favor of continuing registration." (Italics added.)
The court then stated, "[t]he third factor is whether or not the victim and the defendant were strangers, and by 'strangers,' the statute means knowing each other less than 24 hours." The court noted the victim was not a stranger but finds "the import of this in the analysis is that the defendant was in a position of trust. He did not have to seek out a victim to act on his impulses. That victim was delivered to him in a private setting where he was free to do the things that he did. This factor speaks in favor of continued registration."
Next the court considered "Factor Number 4, whether he had a record before or after the conviction. This speaks in favor of termination. He had no record before and no record after." The court then turned to the fifth factor, i.e., "has there been any re-offense"; the court acknowledged there were "[n]one that we know of." As the court explained, "the problem with that factor is you have to know about it, and if there are any victims out there who never said anything, like the 4-year-old did in this case, that's something we'll never know." The court then acknowledged "there is no reported other offenses after 29-and-a-half years" which "speaks in favor of termination."
The court then addressed "[t]he sixth factor [which] is successful completion of a sex offender management board-certified sex offender treatment program. The defendant did complete a sexual deviancy treatment program back in 1998.... [¶] The defendant's papers and the defendant's own declaration give the Court some insight about what he did, how often he attended, and what he learned from the program. And those things are the red flags, knowing when he needs to get himself out of the situation, not putting himself in tempting situations. [¶] He did say he was remorseful, but to me, the comments didn't address the gravity of the breach of trust. It didn't address any of the issues of being in that sort of setting. Again, if he happened to be in it, it does talk about not putting himself in that setting, but it was also back in 1998 [sic]. It does, however, speak in favor of termination."
Finally, "the seventh factor . . . is whether the defendant has had a current risk of sexual or violent re-offense including on the static dynamic and violent risk assessment instrument. [¶] And that's critical to me in this case given the nature and facts of this registrable offense because it was one not involving an impulse with a stranger, not involving a place where he had to take a risk, but in a given situation where he was one-on-one in a trusted position, and he did this....[¶] And I'll tell you why that's important given where the defendant currently resides and the place he is in his life: [¶] He is, as the defense indicated, living in a retirement community. Retirement communities usually are places where grandparents, great-grandparents reside where children bring their children to see their grandparents and great-grandparents. So while it may be a retirement community, those are very ripe for having children visiting for special occasions with grandparents. [¶] What's important about that and this particular defendant are the letters of support that were attached with the defendant's papers from these people in this retirement community saying how he comes to their home, he is in their home, and he helps them with things and they trust him implicitly. These are-and were the same facts that gave rise to the incident for which he has to register. [¶] Without having a current risk assessment, this Court can take no comfort that the community is safe with this defendant not registering."
The court concluded that "given the nature and facts of the registrable offense . . ., the significant age difference between the victim and the defendant at the time of the offense-a 4-year-old child versus a 46-year-old man-the fact that the victim and the defendant were not strangers, but instead the defendant was a trusted family friend who was charged with the unsupervised care of the 4-year-old in [her] home as a trusted babysitter, and for the fact that [Ricci] has not taken . . . a current risk of sexual or violent re-offense including on SARATSO, static dynamic and risk assessment instruments" the standard for termination was not met.
The court held that Ricci could petition again for termination of his sex offender registration in one year; it suggested that if he did, he should submit to an assessment of his current risk of re-offense and provide it to the court.
DISCUSSION
1. Applicable Law and Standard of Review
A person convicted of specified sex crimes against a child, including violations of section 288, is required to register as a sex offender during any period that they live, work, or attend school in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 60 Cal.4th 1044, 1048.)
In January 2021, Senate Bill No. 384 (2017-2018 Reg. Sess.) restructured the sex offender registration requirement, establishing three tiers of registration for sex offenders, primarily based on the specific offense(s) the defendant was convicted of. Tier one requires sex offender registration for a period of at least 10 years, tier two requires registration for a period of at least 20 years, and tier three requires registration for life. (Stats. 2017, ch. 541, § 2.5; see § 290, subd. (d).) The parties agree Ricci is a tier two sex offender, subject to a mandatory 20-year registration requirement. (§ 290, subd. (d)(2); see § 290.5, subds. (a), (b).)
And effective in July 2021, section 290.5, subdivisions (a) through (c), established procedures for a registered sex offender to petition for termination of the registration if the person meets certain criteria, including completion of the mandated minimum registration period. (§ 290.5, subds. (a)-(c).) If the petitioner satisfies the statutory criteria, and the prosecutor does not request a hearing on the issue of community safety, the court is obligated to grant the petition. (§ 290.5, subd. (a)(2) ["If no hearing is requested, the petition for termination shall be granted if the court finds the required proof of current registration is presented in the petition, . . . there are no pending charges against the person which could extend the time to complete the registration requirements of the tier or change the person's tier status, and the person is not in custody or on parole, probation, or supervised release"].)
The prosecution may request a hearing to establish that "community safety would be significantly enhanced by [requiring] continued registration." (§ 290.5, subd. (a)(2), (3).) It is the prosecutor's affirmative burden to establish that the petitioner's continued registration will achieve that goal. (People v. Thai (2023) 90 Cal.App.5th 427, 432 (Thai) ["the prosecution must produce evidence establishing that requiring continued registration appreciably increased society's safety"].)
Although section 290.5 does not define what it means for "community safety [to] be significantly enhanced," sex offender registration is intended to address the likelihood of recidivism. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 877 ["Section 290 'is intended to promote the "'state interest in controlling crime and preventing recidivism in sex offenders'"'"]; People v. Sorden (2005) 36 Cal.4th 65, 73 [''"sex offenders pose a 'continuing threat to society'""].) Thus, the present likelihood that the particular petitioner is likely to reoffend is the primary issue to be determined in deciding whether continued registration will significantly enhance community safety. (See Thai, supra, 90 Cal.App.5th at p. 433 [the prosecution's burden is "to produce evidence establishing that terminating the registration requirement considerably raised the threat to society because [petitioner] was currently likely to reoffend"].)
If the court denies the defendant's termination petition, it "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." (Thai, supra, 90 Cal.App.5th at p. 433.) As explained in Thai, "'[t]he 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." (Thai, supra, 90 Cal.App.5th at p. 433.)
2. The Court's Analysis
Ricci argues the court abused its discretion in applying the factors it was required to consider as it decided whether community safety would be substantially enhanced by Ricci's continued registration. We agree.
As we have already noted, when a petitioner has completed the minimum registration period for his offense tier (in this case, 20 years), and has otherwise satisfied the statutory requirements, the court must terminate the registration unless the prosecutor files a motion opposing it on the basis of community safety. (§ 290.5, subd. (a)(2).) The prosecutor then bears the burden of proving how community safety would be substantially enhanced by continued registration.
a. The First Statutory Factor
In this case, the district attorney's motion relied solely on the facts and circumstances underlying Ricci's conviction. While the motion acknowledged the existence of the other statutory factors, it neither argued nor offered any evidence suggesting those factors supported the need for Ricci's continued registration.
But, as explained in Thai, a petitioner's original sex offense is insufficient to demonstrate that the petitioner presents a significant current risk to community safety. (Thai, supra, 90 Cal.App.5th at p. 434 ["Assuming for purposes of argument the 1997 offense was egregious, those facts alone do not demonstrate Thai was a risk to the community over 24 years later"].)
The current law presumes that for most offenses, a fixed term of sex offender registration-either 10 or 20 years-is sufficient to protect the community. It is only when affirmative evidence demonstrates that a particular sex offender remains a current danger despite the age of his or her registerable offense, that the court can be justified in refusing to terminate registration after expiration of the mandated term.
Consequently, when the trial court concluded the circumstances of Ricci's 29-year-old offense "speak[] volumes against terminating his registration," and thereafter denied his petition, the court committed error. (See Thai, supra, 90 Cal.App.5th at p. 434 ["the court by its own admission weighed the circumstances of the offense heavily. The court's ruling was singularly focused on those facts, which the prosecutor, the court, and the Attorney General all described as 'egregious.' [¶] Assuming for purposes of argument the 1997 offense was egregious, those facts alone do not demonstrate Thai was a risk to the community over 24 years later"].)
b. The Remaining Statutory Factors
Although the district attorney's motion relied solely on Ricci's offense in arguing his registration should not be terminated, the statute required the court to consider all the listed factors. When it did so, the court erred in concluding, without any evidentiary support, that some of those other factors also weighed against termination of Ricci's registration.
When evaluating the second statutory factor-the age and number of victims-the court concluded the age difference between the 4-year-old victim and a 46-year-old Ricci "speaks in favor of continuing registration." The district attorney, who had the burden of proof, offered no evidence to support that conclusion.
The court likewise concluded the third statutory factor-i.e., "whether or not the victim and the defendant were strangers," also "speaks in favor of continued registration." Once again, the district attorney offered no evidence to support that conclusion.
Although the court concluded statutory factor number 5 ("has there been any re-offense") speaks in favor of termination, it seemed to give that factor little or no weight, explaining that because some young victims would not report an incident, "that's something we'll never know." The district attorney presented no evidence related to this factor.
The court minimized factor number six, which is Ricci's completion of a sex offender treatment program. The court expressed concern that he had completed the program back in 1998 [sic]. The only evidence before the court related to factor six was that Ricci had completed the treatment program as directed, and he had not reoffended since.
Finally, the court considered "the seventh factor [which] is whether the defendant has had a current risk of sexual or violent re-offense including on the static dynamic and violent risk assessment instrument." Again, the district attorney presented no evidence related to factor seven. The court advised Ricci it would be helpful if he obtained a risk assessment before applying for termination again. But the evidentiary burden was on the district attorney, not Ricci. Under the law, Ricci is presumptively entitled to have his registration terminated because he fulfilled all the statutory requirements. He has no obligation to also provide the court with affirmative evidence attesting to his low risk of re-offense.
Ricci committed a single offense of child molestation nearly 30 years ago. At the hearing conducted in response to his petition to terminate registration, the people offered no evidence generated over the course of the past 29 years to carry their burden of proving Ricci currently presents a significant danger of re-offense so that community safety would be significantly enhanced by his continued registration as a sex offender.
For the foregoing reasons, we conclude the trial court abused its discretion in denying Ricci's petition for termination of his inclusion on the sex offender registry.
DISPOSITION
The order is reversed, and the case is remanded to the trial court with directions to grant Ricci's petition.
WE CONCUR: MOORE, ACTING P. J., SANCHEZ, J.