Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206680, Kerry Wells, Judge. Affirmed.
BENKE, J.
A jury found defendant Tomas J. Romero, Jr., guilty of rape by a foreign object, in violation of Penal Code section 289, subdivision (h), and of misdemeanor child molestation, in violation of section 647.6, subdivision (a). Romero was sentenced to five years of formal probation, 365 days of local custody and ordered to register as a sex offender.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Romero claims the trial court abused its discretion when it denied his request to sever for trial a charge involving one minor victim from three charges involving another minor. He also claims the trial court's order requiring him to register as a sex offender, based on the court's exercise of discretion, must be reversed because the facts relied on by the court in imposing registration should have been submitted to a jury and proved beyond a reasonable doubt. We reject both contentions and thus affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of the factual and procedural history of this case relevant to specific claims of error by Romero are discussed post, in connection with those issues.
The original information charged Romero with lewd act on a child in count 3 and child molestation in count 4. However, counts 3 and 4 of the information were switched in December 2007, and went to the jury as such. Thus, counts 1, 2 and 3 of the information involve the 2006 incident with Britany, and count 4 refers to the 2002 incident involving Stephanie, discussed post.
In early August 2006, then-16-year-old Britany G. attended a beach barbecue in La Jolla hosted by Penasquitos Lutheran Church (PLC). Britany and three of her friends went for a walk down the beach, when by coincidence Britany came upon Romero and his friend. Britany knew Romero from Green Valley Church (GVC) she sometimes attended, and from a college trip she had taken with GVC chaperoned by Romero, his wife and GVC's pastor, among other adults. Britany spoke to Romero for a few minutes, and her girlfriends left. She then walked a short distance with Romero and his friend to an area where GVC members were having their own youth group activity. Britany then returned to the PLC party.
Later in the evening, Britany and her friend took some food from the PLC party to the GVC picnic, where she met Romero and his wife, among other people. Britany left the GVC picnic with Romero to get some more food. As they walked together, Romero asked Britany if her dad knew that she flirted with Romero. Britany responded to him, "Does [your wife] know that you flirt with me?" Romero said, "Yes," asked Britany why she did not call him and told her he wanted her to have his cell phone number.
As dusk approached, Britany and Romero continued to walk towards some houses in a residential area near the beach. They kissed three times on the lips with their mouths closed. Britany asked Romero what he was doing, and why he was kissing her when he was married. She then pulled away from Romero and said she wanted to return to the picnic. As they walked back to the beach, Romero asked Britany if she was 18 years of age. She told him "No," that she was 16 years old. Romero responded, "I've never kissed a 16-year-old before." Britany returned to the PLC picnic and Romero left.
Following dinner and their prayer worship, Britany saw Romero approaching the PLC picnic. Romero said he came to say "good-bye." They started walking together on a sidewalk toward the pier, when Britany suggested they walk toward the ocean. They sat down on the sand for a few moments, and Britany put her head on Romero's shoulder. They then continued to walk down the beach, when Romero told Britany he had a "surprise" for her.
They walked to an area with a staircase, near the pier, and went up a flight of stairs to a landing where they began kissing with open mouths. Romero kissed Britany on her neck, then moved her bathing suit top and kissed her exposed breast and nipple. Another couple came down the stairway, and Romero and Britany separated until they passed. Romero then placed his hand under Britany's skirt, moved her bikini bottom aside and digitally penetrated her vagina. Romero pulled out his penis from his pants, but Britany "pushed it away," telling Romero she did not want to see it. Romero placed his penis between Britany's legs and under her vagina, and rubbed or "grinded" himself against her. Britany asked Romero not to take her virginity. He responded he would not and that she should not worry.
According to Britany, a few seconds later Romero put his penis inside her vagina, and pushed about four times. Romero struggled to keep his penis inside of Britany's vagina because of her tampon. He then sat down, Britany adjusted her clothes and told him, "I'm done." As she started walking down the stairs to return to her group, Romero followed her and told her, "Don't tell anyone." Britany then ran back to the PLC picnic.
The jury acquitted Romero of unlawful sexual intercourse with a minor.
When Britany returned to her group, her friend surmised something was wrong. Britany told him she had been raped. They then told the youth pastor of PLC, who called Britany's father. The youth pastor's wife drove Britany home.
Early the next morning, Britany's family called police who came to their house. Britany gave the police officer a statement, identified Romero as the person who had raped her, and her father used a GVC directory to locate Romero's telephone number and home address. The officer next drove Britany and her father to the beach where the assault occurred, and then drove them to Children's Hospital where a sexual assault response exam was conducted and Britany's bikini bottom was collected as evidence by the officer. Swabs were taken of Britany's mouth, neck, right breast and vaginal areas.
In late August 2006, Romero provided police with a buccal swab of his inner mouth. Subsequent DNA analysis by police showed Romero statistically was the source of the DNA found on Britany's right breast.
B. Stephanie B. (Count 4)
In mid-June 2002, then-13-year-old Stephanie B. was walking to the mailbox of her Escondido apartment when a man approached, said "hello" and asked her if she attended the middle school across the street and if so, whether she liked it. The man told Stephanie he was considering sending his own daughter to the school. The man also asked Stephanie if she had a boyfriend, whether her mother let her date and whether Stephanie would be allowed to go on a date with him. Stephanie said she was puzzled and scared by his questions, lied to him that she had a boyfriend and said "no" to his offer to go out on a date. She then began to walk quickly away from the man.
The man, however, followed behind her, grabbed her right arm and pulled her back toward him so she was facing him. He then attempted to kiss her while she was in his grasp, which she described as a "bear hug." Stephanie resisted by yelling for help and moving her head from side to side to avoid his attempts to kiss her face. The man let go of Stephanie and she ran home and told her 12-year-old brother Randy what had just happened. Stephanie also gave Randy a brief description of the man.
Randy went to look for the man while Stephanie went to the apartment manager's office to make a report, believing the man who grabbed her worked at the complex because of the clothes he wore and a truck parked nearby. Randy found a man alone in the back of the parking lot area of the complex, and tried to get his attention. Initially the man ignored Randy, but as Randy continued to approach, the man started walking away, towards the other side of the complex. Randy asked the man if he touched his sister. The man denied touching Stephanie, and instead claimed he only had said "hi" to her. Eventually, the man left the apartment complex, took off his shirt with his company name and ran across the street into the middle school.
Later that same day, police came to Stephanie's apartment and interviewed her. Stephanie gave police a description of the man that had grabbed her.
About a month after the incident, a detective assigned to the case contacted Romero after obtaining information from the truck owner, who had identified Romero as one of the owner's employees working at the apartment complex on the day Stephanie was attacked. Romero admitted to the detective that he and another employee were at the apartment complex that day working. Romero told the detective he merely had said "hi" to a girl at the apartment complex, they conversed for about a minute and may have shaken hands.
Romero also told the detective a young man approached him shortly thereafter and accused him of certain things that were untrue, and asked Romero to go with him to the apartment manager's office. Romero believed the young man intended to call the police, so Romero took off his shirt, which bore the name of his company, and fled the scene. Romero admitted to the detective that in hindsight, it was a poor decision to leave the scene. However, he denied hugging or kissing the girl, turning her around or putting her in a bear hug, as Stephanie claimed.
C. Defense/Rebuttal
Erica S. was Britany's best friend in August 2006. Erica was at the beach party on August 9, 2006, when Britany told her she had kissed Romero, whom Erica knew to be married. Erica was speechless and shocked by this information, and believed the kiss was inappropriate and should not have happened.
William Geoffrey Horn is the associate pastor at GVC and Romero's brother-in-law. Horn had known Britany since she was in the sixth grade, and had known Romero for about seven years. Horn testified Romero is a shy, passive person who is kind-hearted and not aggressive.
Horn provided documents in connection with the college trip chaperoned by Romero and his wife, among others. Romero's wife was in charge of the girls on that trip, including Britany, and served as a small group leader and counselor on campus and in the youth group. Romero's wife previously had disciplined Britany on six or seven occasions, including at a beach bonfire.
Dr. Thomas MacSpeiden evaluated Romero for a mental disorder that would predispose him to sexual misconduct. Dr. MacSpeiden opined Romero has a situational anxiety disorder and avoidant personality disorder that would cause Romero to avoid stressful situations, including fear of rejection, physical violence and censure from a superior.
Charles Dilts knew Romero from their GVC affiliation. Dilts said Romero is a man of integrity and he trusted Romero with his own children. Dilts operates a ranch for at-risk boys, where Romero volunteered. Dilts went to Britany's residence on the night of the incident to meet with her and her father. Britany told Dilts in a calm manner what happened with Romero, and said she was "cried out."
Roberto Hernandez was the service manager for the company that owned the apartment complex where Stephanie lived in June 2002. Hernandez was working with two other Hispanic males at the complex on the day Stephanie was assaulted. Hernandez was responsible for scheduling various vendors, and remembered Romero and his partner were working there that day and both were wearing shirts with their company name.
Christina Chase worked as the community manager of the apartment complex where Stephanie lived in June 2002. On the afternoon of the incident, Stephanie came to the office upset and made a complaint. Chase called Hernandez. Shortly thereafter, Romero's partner came to the office where Stephanie was present. Chase had known Romero and his fellow employee for about two years because they regularly worked at the apartments. Chase had never received a complaint about Romero until the incident involving Stephanie.
DISCUSSION
A. Motion to Sever
Romero argues the trial court erred when it denied his motion to sever count 4 of the information, involving Stephanie, from counts 1, 2 and 3 involving Britany. We disagree. As we explain, both series of crimes satisfy the criteria for joinder under section 954, the evidence from each crime was cross-admissible and Romero did not establish the required prejudice by their joinder.
The People's information charged Romero with unlawful sexual intercourse with a minor (§ 261.5, subd. (c) [count 1]), rape by a foreign object (§ 289, subd. (h) [count 2]), misdemeanor child molestation (§ 647.6, subd. (a) [count 3]) and lewd act on a child (§ 288, subd. (a) [count 4]). Before trial, defense counsel moved to sever count 4, the only charge involving Stephanie, from counts 1, 2 and 3, arguing the series of charges were not of the same class of crimes, as required under section 954, the evidence was not cross-admissible, count 4 would bolster the evidence on the other counts and the joinder would be highly prejudicial to Romero.
The People opposed the motion, arguing the two sets of crimes were of the same class, shared common characteristics and were cross-admissible under the Evidence Code to show Romero's propensity to commit sexual offenses. The People further argued Romero did not establish prejudice by the joinder.
At oral argument, the trial court noted it had read the parties' papers, conducted its own research and found the two sets of crimes were of the same class. It further noted the two incidents were not remote and neither incident was more inflammatory or stronger than the other. The court thus denied the motion.
1. Governing Law
Section 954 provides in part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
Section 954 further provides that a court may exercise its discretion and order separate trials of different offenses or counts in the information "in the interest of justice and for good cause shown." (§ 954.)
In general, the law prefers consolidation of charges. (People v. Soper (2009) 45 Cal.4th 759, 771 (Soper); People v. Bean (1988) 46 Cal.3d 919, 939-940 (Bean).) " 'Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.' " (People v. Ochoa (1998) 19 Cal.4th 353, 409, fn. omitted, quoting People v. Brock (1967) 66 Cal.2d 645, 655, overruled on another ground as noted in People v. Cook (1983) 33 Cal.3d 400, 413, fn. 13.)
Consequently, when the statutory requirements for joinder are met, as is the case here, the burden is reversed and a defendant "must make a ' "clear showing of prejudice to establish that the trial court abused its discretion"' "in denying severance. (Soper, supra, 45 Cal.4th at p. 774, quoting Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala); see also Bean, supra, 46 Cal.3d at p. 938.) "A trial court's denial of a motion to sever properly joined charged offenses amounts to a prejudicial abuse of discretion only if that ruling ' " ' "falls outside the bounds of reason." ' " ' " (Soper, supra, 45 Cal.4th at p. 774, quoting Alcala, supra, 43 Cal.4th at p. 1222, fn. 11.) "In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, 'we consider the record before the trial court when it made its ruling.' " (Soper, supra, 45 Cal.4th at p. 774, quoting Alcala, supra, 43 Cal.4th at p. 1220.)
Romero has abandoned on appeal the contention that the separate offenses involving Britany and Stephanie were not of the "same class of crimes" required by section 954. In any event, we note each set of offenses share several "common characteristics," inasmuch as both involved incidents where Romero was charged with sexual misconduct of a minor. (See People v. Lucky (1988) 45 Cal.3d 259, 276.)
Here, as we have noted, there is no dispute the offenses charged were "of the same class of crimes." (§ 954.) Rather, the dispute is whether the trial court abused its discretion in denying Romero's motion to sever because, Romero argues, he suffered extreme prejudice caused by the joinder of the charges. (See Soper, supra, 45 Cal.4th at p. 773; Bean, supra, 46 Cal.3d at pp. 938-939.)
Our Supreme Court has developed the following factors to assist in our review of whether a trial court abused its discretion in denying a motion to sever:
" ' " 'Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.' " ' [Citation.]" (People v. Ochoa (2001) 26 Cal.4th 398, 423, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; see also Soper, supra, 45 Cal.4th at p. 775.) "We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state." (Soper, supra, 45 Cal.4th at p. 775, fn. omitted.)
2. Cross-Admissibility
"If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." (Soper, supra, 45 Cal.4th at pp. 774-775.) However, " 'lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder. [Citations.]' [Citations.]" (People v. Geier (2007) 41 Cal.4th 555, 575; see also § 954.1 .)
Section 954.1 provides in part: "In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading... evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101 , if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
Evidence Code section 1101, subdivision (a), provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Our Supreme Court has explained that section 1108 "was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
Pertinent to this inquiry, "[b]y reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the [other] offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Here, all the charges against Romero fall within the definition of "sexual offense" set forth in Evidence Code section 1108, subdivision (d)(1)(A). As such, evidence relating to each of those sexual offenses would have been cross-admissible had the two incidents been tried separately so long as the evidence was not otherwise barred by Evidence Code section 352. (See Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The People contend the evidence of the two incidents was cross-admissible to show Romero's intent and common plan because he touched Britany and Stephanie, both minors, in a sexual manner and against their will, in a public setting when he was alone with the victim.
Romero argues the evidence regarding the separate charges was dissimilar and remote. He contends the incident involving Stephanie was a "misconstrued mistake," inasmuch as it involved a person (not necessarily him) who greeted the girl in a parking lot, spoke with her and embraced her. In the case of Britany, Romero notes that incident occurred four years after the Stephanie assault, and further distinguishes it based on the existence of a preexisting relationship between him and Britany and the fact they kissed and he fondled her.
Our Supreme Court has noted there exists a "continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: 'The least degree of similarity... is required in order to prove intent. [Citation.]... In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" [Citation.]' " (Soper, supra, 45 Cal.4th at p. 776.) "By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity." (Ibid., fns. omitted.)
Thus, a trier of fact may properly consider admissible "other crimes" evidence to prove intent "so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citations], and further (2) the threshold standard [previously] articulated... can be satisfied—that is, 'the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored' the requisite intent. [Citation.]" (Soper, supra, 45 Cal.4th at pp. 778-779.)
Evaluating the trial court's denial of the motion to sever at the time it was made, we conclude the evidence is sufficient to sustain the finding that Romero was the perpetrator in each incident and the " 'factual similarities among the charges tend to demonstrate that in each instance [he] harbored' " the requisite intent. (See Soper, supra, 45 Cal.4th at pp. 778-779.)
Indeed, in the case of Britany, there is no dispute Romero was the perpetrator. As for Stephanie, Romero disputed he was the perpetrator of the "misconstrued mistake," although the record shows he admitted to detectives he was working at the apartment complex on the day of the incident, he said "hi" to a girl there, they may have shaken hands and a young man approached him later and accused him of certain things that were untrue. Romero further admitted that, in hindsight, he used poor judgment when he took off his shirt with his company name and fled the scene. The record thus contains sufficient evidence for a jury to conclude Romero committed both sets of crimes. (See Soper, supra, 45 Cal.4th at p. 778, fn. 14.)
In addition, there were sufficient factual similarities then known to the trial court to demonstrate Romero, as the perpetrator, harbored the requisite intent in each incident. (See Soper, supra, 45 Cal.4th at p. 779, fn. 15.) Indeed, both offenses involved sexual misconduct with a minor girl; both occurred in a public setting; both began with Romero engaging in flirtatious conduct with the minors. In the case of Stephanie, Romero asked Stephanie if her mother let her date and whether she would be allowed to go on a date with him. In the case of Britany, Romero asked her if her father knew she flirted with Romero. Finally, both incidents involved his desire to kiss and hold the minors.
Although our conclusion the evidence from each incident is cross-admissible "ordinarily dispels any inference of prejudice" (see People v. Zambrano (2007) 41 Cal.4th 1082, 1129, disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), we nonetheless briefly analyze the other factors under Evidence Code section 352 to determine admissibility under Evidence Code section 1108, subdivision (a). We note the evidence does not appear overly inflammatory, inasmuch as Romero himself characterizes the incident with Stephanie as a "misconstrued mistake," and the incident with Britany as an event where they "kissed" and Romero "fondled her." The fact the incidents occurred four years apart also does not make them remote. (See e.g., People v. MacEwing (1963) 216 Cal.App.2d 33, 49 [concluding a seven- or nine-year lapse was not too remote for "other-crimes" evidence]; People v. Burns (1952) 109 Cal.App.2d 524, 538 [concluding a lapse of 13 years between offenses was not too remote, and noting "[r]emoteness of the prior offense has been held to affect only the weight of the evidence, and not its relevancy or admissibility"].) In any event, we note Romero offers no support in his brief for his argument the two incidents were remote.
In addition, although, as we have noted, we review the record for abuse of discretion in connection with the denial of the motion to sever (see Soper, supra, 45 Cal.4th at p. 774), we also must consider the actual impact of joinder on the trial to ensure Romero received a fair trial. (Bean, supra, 46 Cal.3d at p. 940; see also People v. Harris (1998) 60 Cal.App.4th 727, 736 [the ultimate object of the Evidence Code section 352 weighing process is a fair trial].)
Here, it appears the jury was not confused by joinder, inasmuch as it acquitted Romero on the charge of unlawful sexual intercourse with Britany (§ 261.5), and deadlocked on the charge of lewd act on a child, the only offense involving Stephanie (§ 288, subd. (a)), which led the court to declare a mistrial on that charge. Moreover, as to the two counts where Romero was found guilty, we note from the record the evidence of guilt was strong, based on the testimony of Britany and the DNA evidence from her right breast.
The trial court also instructed the jury under CALCRIM No. 3515 as follows: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." These additional reasons support our conclusion the jury was not confused by joinder.
We therefore conclude Romero did not make a showing of prejudice, much less a "clear showing," in connection with the court's denial of his motion to sever, and he received a fair trial.
3. Lack of Cross-Admissibility of Evidence
As we have noted, even if the evidence underlying the separate incidents involving Britany and Stephanie was not cross-admissible in hypothetical separate trials, that determination would not itself establish prejudice or an abuse of discretion by the trial court in declining to sever the properly joined charges. (See Soper, supra, 45 Cal.4th at p. 775; § 954.1.) In briefly reviewing the remaining three factors, we conclude the court's denial of Romero's severance motion was not "outside the bounds of reason." (See Soper, supra, 45 Cal.4th at p. 774, quoting Alcala, supra, 43 Cal.4th at p. 1222, fn. 11.)
As to the next factor, whether some of the charges are likely to inflame the jury against the defendant, the record shows the court found neither incident particularly inflammatory, explaining "[o]n the scale of sexual offenses, neither is particularly graphic or heinous or large amount of force used in one and not the other; [or a] weapon used in one and not the other; you know, dragging a victim away and not the other. They both seem to be relatively on the same level of inflammatoriness, which is, in my opinion, sort of low on the scale of sexual offenses. So I don't see that one would be more inflammatory than the other." In light of our conclusion above in connection with the Evidence Code section 352 analysis, we agree with the trial court.
We further conclude the court was within its discretion when it found neither case was stronger or weaker than the other, nor was there any "spillover effect," observing: "And from my reading of the points and authorities on both sides,... both [incidents] appear to be relatively about the same. You don't have one that is a much stronger case than the other, where like on one there's several independent witnesses or a confession and then nothing on the other that's independent from the victim. [¶] The way I read it, you basically have victims describing what happened in both cases without perhaps a whole lot more. So it doesn't strike me that we'd be joining one real strong case with a very weak case."
Finally, the court found Romero would not be substantially prejudiced by the joining of the two sets of charges. It noted the "jury can differentiate between the two incidents and the level of proof in the two incidences. And in my experience jurors have done that, if they have believed one victim and not another and found evidence on one and not another."
As the trial court predicted, the jury here did in fact differentiate between the separate incidents, as demonstrated by its guilty verdicts against Romero on two of the three counts involving Britany, where evidence of guilt was strong, and by its inability to reach a verdict on the one count involving Stephanie.
In examining the record before the trial court at the time of Romero's motion to sever, we conclude the trial court acted well within its discretion in weighing these other factors and in denying his motion. We thus further conclude the actual impact of joinder did not deprive Romero of a fair trial or due process of law. (See Bean, supra, 46 Cal.3d at p. 940; People v. Ochoa, supra, 19 Cal.4th at p. 409.)
B. Sex Offender Registration
At Romero's sentencing hearing, the trial court opted to require Romero to register as a sex offender under former section 290, subdivision (a)(2)(E), based on the court's finding Romero committed the offenses "as a result of sexual compulsion or for purposes of sexual gratification," rather than under the mandatory registration requirement in former subdivision (a)(2)(A) of former section 290. The trial court noted it had read People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) and determined it applied to Romero, who was convicted under section 289, subdivision (h), and under section 647.6, subdivision (b), both of which require mandatory registration under former section 290, subdivision (a)(2)(A).
The Legislature in 2007 repealed and reenacted section 290's provisions in urgency legislation that became effective on October 13, 2007 (§§ 290, 290.006), before the jury returned its verdict and the court sentenced Romero. Former section 290, subdivision (a)(2)(E), is now restated in section 290.006 without substantive change. For consistency, we will refer to the former provisions in this appeal, as have the parties in their briefs.
In Hofsheier, our Supreme Court held "that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who... were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions." (Hofsheier, supra, 37 Cal.4th at p. 1207, fn. omitted.)
On appeal, Romero claims the facts determined by the trial court as a basis to impose discretionary sex offender registration—that he committed the offenses "as a result of sexual compulsion or for purposes of sexual gratification" under former section 290, subdivision (a)(2)(E)—must be submitted to a jury and proved beyond a reasonable doubt in accordance with Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] (Apprendi). Romero reasons that by imposing the discretionary sex offender registration requirement under section 290, the court necessarily subjected him to the residency restriction under section 3003.5, subdivision (b) of the Sexual Predator Punishment and Control Act: Jessica's Law, approved by voters in November 2006 as Proposition 83, which improperly increased his punishment in violation of his right to a jury trial under Apprendi.
Former section 290, subdivision (a)(2)(E), provided: "Any person ordered by any court to register pursuant to this section for any offense not included specifically in this section 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." (Stats. 2006, ch. 337, § 11.)
Subsection (b) of 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."
Romero's challenge to the trial court's findings requiring him to register under former section 290, subdivision (a)(2)(E), assumes the residency restriction in section 3003.5, subdivision (b), applies retroactively to him, inasmuch as he committed the offenses in 2002 and August 2006, before voters passed Jessica's law. The issue of whether this provision applies retroactively is currently pending before our Supreme Court. Likewise, the issue of whether the residency restriction in section 3003.5, subdivision (b), increases the punishment beyond the statutory maximum (see Apprendi, supra, 530 U.S. at p. 490), and thus requires the facts supporting sex offender registration to be found beyond a reasonable doubt by a jury, is also pending before the court. (See People v. Mosley, review granted March 12, 2009 (S169411).)
On May 5, 2009, we granted the application of Governor Arnold Schwarzenegger and the California Department of Corrections and Rehabilitations (CDCR) for permission to file an amicus brief and their accompanying request for judicial notice in support thereof. Amici curiae argue this court should refrain from deciding whether the 2,000-foot residency restriction in section 3003.5, subdivision (b), applies retroactively. Amici curiae note this exact issue is pending before the California Supreme Court in myriad cases (see, e.g., In re E.J., S.P., J.S., and K.T., S156933, S157631, S157633 and S157634, respectively), to date the CDCR currently enforces the residency restriction as to sex offenders released to parole after Jessica's law became effective, regardless of when they committed their offenses, and it would be "hugely disruptive" if this court were to interpret the residency restriction differently in a published opinion, allowing sex offenders on parole who committed their offenses before Jessica's law went into effect "free to move into restricted areas." Romero filed a response to the amicus brief on May 15, 2009, which we considered in connection with this opinion.
We decline to reach the issue of whether the findings of the trial court required by former section 290, subdivision (a)(2)(E), in connection with its order requiring Romero to register as a sex offender, must be submitted to a jury and proved beyond a reasonable doubt because on this record, we agree with the People's contention that it is entirely speculative whether Romero is even subject to the residency restriction in section 3003.5, subdivision (b). (See Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 539-540 [" 'ripeness... prevents courts from issuing purely advisory opinions [based on] the fundamental concept that the proper role of the judiciary does not extend to resolution of abstract differences of legal opinion' "].) If and when there is some effort to apply the residency restriction to Romero, assuming of course, this provision in Jessica's law (1) applies retroactively and (2) is considered punishment under Apprendi beyond the statutory maximum, he can certainly challenge such action at that time.
In any event, we perceive no imminent injustice here, as there is ample evidence in the record to support the trial court's finding that Romero committed the offenses "as a result of sexual compulsion or for purposes of sexual gratification" required by former section 290, subdivision (a)(2)(E). Indeed, as the People note, the jury found Romero guilty beyond a reasonable doubt in count 2 for sexually penetrating Britany's vagina. "Sexual penetration" was defined as "penetration, however slight, of the vagina or genital opening of another person for the purpose of sexual abuse, arousal, or gratification." (Italics added.) Romero does not challenge this instruction on appeal, and thus it would appear that the jury in fact made the requisite finding, for purposes of Apprendi, under former section 290, subdivision (a)(2)(E).
DISPOSITION
The judgment and sentence are affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.