Opinion
G062840
08-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MERIT ANDREW SCHROEDER, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. M-19565 Joy W. Markman, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Merit Andrew Schroeder appeals from the trial court's order denying his petition to terminate his sex offender registration under Penal Code section 290.5, subdivision (a) (all undesignated statutory references are to this code). Schroeder argues the trial court abused its discretion in evaluating the statutory factors to determine "whether community safety would be significantly enhanced by requiring continued registration." (§ 290.5, subd. (a)(3).) We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Schroeder and the victim's mother (Mother) became friends in 1990 while working together at a restaurant. Schroeder offered to babysit the victim when he was approximately one year old and babysat him on a regular basis for two years.
The victim had not behaved unusually around Schroeder until after March 1992, when Mother left the victim with Schroeder for a weekend. After March 1992, whenever Mother would drop off the victim with Schroeder, the victim would resist leaving Mother. In September 1992, the victim told Mother that Schroeder "'peed on me. [Schroeder] peed on my butt.'" The next day, the victim told Mother, "'I peed in'" Schroeder. The following day, the victim told Mother that Schroeder "'hurt my butt with his finger, and it hurt and I cried.'"
During a police interview, Schroeder admitted he "'molested'" the victim, who was just under three years old at the time, 10 to 15 times over the course of four to five months. Schroeder rubbed the victim's penis, rubbed his penis on the victim's buttocks, ejaculated on the victim's back, and orally copulated the victim's penis. A physical examination of the victim revealed a three-millimeter anal tear that was healing. Schroeder denied penetrating the victim's anus. Schroeder also disclosed that, when he was 19 years old, he met a 12- or 13-year-old boy in Huntington Beach, and they orally copulated each other.
The prosecution filed an information against Schroeder, alleging one count of continuous sexual abuse with a child under the age of 14 under section 288.5. In March 1994, Schroeder pleaded guilty to the lesser included offense, lewd and lascivious acts upon a child, under section 288, subdivision (a). The trial court sentenced Schroeder to three years in prison and ordered him to register as a sex offender under section 290.
In March 2022, Schroeder filed a petition to terminate his sex offender registration pursuant to section 290.5. He alleged he was a "[t]ier 2" offender, making him eligible for removal after 20 years of registration. In support, he attached a declaration, stating he relapsed on drugs and alcohol during the time of the offense, he has not "used illegal drugs or alcohol" since then, he has been an active member of Alcoholics Anonymous (AA) since his release from prison, he was "very remorseful," and he had registered for nearly 30 years. He also provided tax statements, a resume, and a copy of his associate of occupational studies degree.
The prosecution responded to the petition. It objected to granting the petition and requested a hearing because "[c]ommunity safety would be significantly enhanced by the petitioner's continued registration."
Schroeder filed a response to the prosecution's objection, arguing he satisfied the eligibility criteria for relief. In support, he provided a declaration and four letters of recommendations from friends, former employers, and AA members.
The prosecution filed an opposition to the petition. It contended the following: Schroeder "took advantage of his position to repeatedly sexually abuse the victim"; he committed egregious acts; the victim was under three years old; Schroeder did not complete a sex offender treatment program or a SARATSO assessment; and he engaged in sexual activity with another child under 18 years old. In support, the prosecution submitted the police report and probation report. Mother later gave a victim impact statement.
SARATSO denotes "State-Authorized Risk Assessment Tool for Sex Offenders." (§ 290.04, subd. (a)(1).) Beginning on January 1, 2007, the SARATSO for adult male registrants has been the Static-99 risk assessment scale. (§ 290.04, subd. (b)(1).) "'The Static-99R is a revised version of the Static-99 that takes into account the age of a sexual offender based on statistics showing the risk of sexual reoffense decreases as the offender ages.'" (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1067-1068, fn. 6.)
At the hearing on the petition, the trial court denied the petition but allowed Schroeder to petition for termination again in two years. It evaluated the factors set forth in section 290.5, subdivision (a)(3), considering the parties' evidence and the section 288.1 report in the trial court's case file.
The trial court began by noting Schroeder had not reoffended and a substantial amount of time had passed since his conviction.
Next, it explained the facts in the instant matter were more egregious than those in People v. Thai (2023) 90 Cal.App.5th 427 (Thai). Here, the victim was two years old, the abuse occurred over a period of months, and Mother had entrusted the victim to Schroeder's care. In contrast, in Thai, the victim was 12 years old and only one instance of abuse occurred. Moreover, the trial court disagreed with a psychologist's or psychiatrist's finding in the section 288.1 report that the offense "'was a relatively minor one.'" The trial court remarked Schroeder initiated the babysitting arrangement and surmised: "We don't know how long before the four or five months [the abuse] could have happened, because that child could not verbalize it. It may have."
The trial court acknowledged "the other incident," an apparent reference to a 12- or 13-year-old boy and Schroeder, when he was 19 years old, orally copulating each other.
It stated Schroeder was not a stranger to the victim and Mother, but determined "[t]hat can cut both ways." On the one hand, "the idea of a stranger is much scarier"; on the other hand, Mother had trusted Schroeder to care for her "most precious thing in the world," and the toddler was taken to a place where no other adults could intervene.
The trial court said it lacked "specific evidence of sex offender treatment in detail," questioning what kind of treatment Schroeder received, what topics were discussed during therapy, and how long his treatment lasted.
It also noted there was no risk assessment showing Schroeder's current risk of reoffending and he never submitted to one. It stated a SARATSO was "desperately needed."
The trial court enumerated its reasons for setting the time to repetition to two years: (1) "the very young age of the victim at the time of the offense"; (2) "the victim was left alone with the petitioner in a motel room for a weekend on one occasion" and, "[o]n other occasions, he was alone with the victim in his bachelor apartment increasing the little child's helplessness"; (3) "[t]he injury to the child as the doctor reported the tear in the anus with bleeding"; (4) Schroeder's "repeated abuse of the victim over many months"; (5) "[n]o current risk assessment was done"; and (6) "[n]o facts indicating a specific extensive therapy program involving or therapy program devoted exclusively to sex offender's treatment."
In denying the petition, the trial court explained it "found some mitigating factors of his lack of other convictions before or since the underlying offense, his sobriety, as far as we know, since this offense, his registration successfully for 20 years as required under [section] 290, the psychologists' reports that I mentioned having considered; I find that the mitigating factors were far [outweighed] by the factors on the other side that cry out for community safety being significantly enhanced because of the reasons I said earlier."
Schroeder timely appealed.
DISCUSSION
Section 290 et seq. requires a person convicted of certain sex crimes to register as a sex offender. Originally, all sex offenders were subject to a lifetime registration requirement. Effective January 1, 2021, section 290 was restructured to provide for three tiers of registration for sex offenders, based primarily on the offense. (Stats. 2017, ch. 541, § 2.5.) Registration requirements can now be for 10 years (tier one), 20 years (tier two), or a lifetime (tier three). (§ 290, subd. (d).) Schroeder is a tier two sex offender, required to register for 20 years. (§ 290, subd. (d)(2); see § 290.5, subds. (a), (b).)
Section 290.5 permits sex offenders in tiers one and two to petition the trial court to terminate their registration requirement. The prosecution may request a hearing and "present evidence" to demonstrate "community safety would be significantly enhanced by requiring continued registration." (§ 290.5, subd. (a)(2)-(3).) In other words, the prosecution has the burden of producing evidence to establish "terminating the registration requirement considerably raised the threat to society because [petitioner] was currently likely to reoffend." (Thai, supra, 90 Cal.App.5th at p. 433.)
In making its decision, the trial court must consider: "the nature and facts of the registerable offense; the age and number of victims; whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); criminal and relevant noncriminal behavior before and after conviction for the registerable offense; the time period during which the person has not reoffended; successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and the person's current risk of sexual or violent reoffense, including the person's risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available." (§ 290.5, subd. (a)(3).) If the trial court denies the petition, it must "set the time period," ranging from one to five years, "after which the person can [re-petition] for termination," and provide its reasons. (§ 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. [Citation.] To establish an abuse of discretion, a defendant must demonstrate the trial court's decision fell outside the bounds of reason, i.e., was arbitrary, capricious, or patently absurd. [Citation.] [¶] 'The 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.)
The prosecution argues the trial court properly weighed the factors and considered the evidence. It contends the trial court was justified in giving more weight to other factors than those supporting Schroeder's petition to terminate sex offender registration, like the age of the offense and the lack of a criminal history. Schroeder argues we should reverse the denial of his petition in accordance with Thai.
In Thai, the petitioner masturbated a 12-year-old boy and pleaded guilty to "committing a lewd and lascivious act upon a child under the age of 14 years" under section 288, subdivision (a). (Thai, supra, 90 Cal.App.5th at p. 430.) More than 23 years later, the petitioner filed a petition to terminate his sex offender registration. (Ibid.) "The trial court stated it considered 'each and every one of the factors' and although not considering the circumstances of the offense alone, it was 'weighing that heavily'" in denying the petition. (Id. at p. 431.) The appellate court held: "[I]nsufficient evidence supports the trial court's conclusion community safety would be appreciably increased by requiring Thai to continue to register for five years. The prosecution failed its burden to produce evidence establishing that terminating the registration requirement considerably raised the threat to society because 64-year-old Thai was currently likely to reoffend." (Id. at p. 433.)
Here, the trial court "committed the sin condemned in Thai." (People v. Franco (2024) 99 Cal.App.5th 184, 194 (Franco).) While considering all the factors in section 290.5, subdivision (a)(3), the trial court gave "controlling weight to the 'egregious' nature of" Schroeder's offense, notwithstanding approximately 30 "years of law-abiding behavior since" then and the prosecution's "failure to produce any other evidence indicating" Schroeder, age 54 "at the time of the hearing, 'was currently likely to reoffend.'" (Franco, supra, 99 Cal.App.5th at p. 194.)
We review the trial court's evaluation of the statutory factors in turn. The trial court emphasized the circumstances of the offense in its analysis, specifically the first three statutory factors: (1) "the nature and facts of the registerable offense"; (2) the age of the victim; and (3) whether the victim was a stranger. (§ 290.5, subd. (a)(3).) It gave substantial weight to the repeated abuse over a span of four to five months, the healing anal tear, how Schroeder babysat the victim alone, the victim's young age, how Schroeder was not a stranger to Mother and the victim, and how Schroeder took advantage of his friendship with Mother to babysit the victim. It also speculated the abuse may have occurred longer than four to five months, because the victim was unable to "verbalize it," without any evidence to support such an inference. But the underlying offense alone is insufficient to show Schroeder posed a risk to the community today. (See Thai, supra, 90 Cal.App.5th at p. 434 ["facts alone do not demonstrate Thai was a risk to the community over 24 years later"].)
The trial court appeared to give some weight to the fourth statutory factor, "criminal and relevant noncriminal behavior before and after conviction for the registrable offense." (§ 290.5, subd. (a)(3).) It recognized "the other incident," before the conviction, involving Schroeder and a 12- or 13-year-old boy orally copulating each other. But no evidence supported how this preconviction behavior would require continued registration in order to significantly increase community safety today.
The trial court acknowledged the fifth statutory factor, "the time period during which the person has not reoffended." (§ 290.5, subd. (a)(3).) But it appeared to attach little importance to Schroeder's nearly 30 years of law-abiding behavior since the offense. It stated, despite weighing the facts of the offense with the absence of "any subsequent conviction, it is still in the back of my mind I keep thinking community safety would be enhanced."
As for the sixth factor, completing "a Sex Offender Management Board-certified sex offender treatment program," the trial court found "we don't have specific evidence of sex offender treatment in detail." (§ 290.5, subd. (a)(3).) It asked: "What kind of treatment? Just said he was in therapy. What topics did they discuss? How long? How many weekly sessions or months was the sex offender treatment?" But, according to the section 288.1 report, Schroeder attended psychotherapy sessions weekly for approximately one year, during which he used "'his therapy to gain an understanding of his internal psychic structure, via dream work and other psychotherapeutic methods.'" The probation report stated the therapist was helping Schroeder "mature," "deal with his sexuality," and develop "tools so that he does not live in a fantasy world." Significantly, the record does not show the Sex Offender Management Board-certified sex offender treatment program existed at the relevant times, much less that he was ever offered the opportunity to participate in one. The only evidence related to factor six was Schroeder received treatment aimed at addressing his maturity and sexuality.
The section 288.1 report recounted Schroeder's history of substance abuse and being molested as a child. It concluded, "This is a classic case of one who has been victimized becoming a victimizer. [Schroeder], while under the influence of alcohol and drugs, repeated the behavior that he had experienced."
Finally, the trial court considered the seventh factor, perhaps the most important factor: "the person's current risk of sexual or violent reoffense, including the person's risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available." (§ 290.5, subd. (a)(3).) The prosecution offered no evidence showing Schroeder posed a current risk to the community. Although the prosecution requested a current risk assessment at the hearing and the trial court found a SARATSO was "desperately needed," the evidentiary burden was on the prosecution, not Schroeder. Under section 290.5, Schroeder is presumptively entitled to termination of his registration, as he satisfied the statutory criteria. He is not required to submit evidence regarding his risk of reoffending.
We note Schroeder cited a study in his points and authorities before the trial court, which found a sex offender registrant's recidivism risk falls by half for each five years the registrant does not reoffend. (Hanson, et al., High-Risk Sex Offenders May Not Be High Risk Forever in 29 Journal of Interpersonal Violence (Mar. 24, 2014) 2792, 2800.)
In sum, the prosecution failed to present evidence demonstrating "terminating the registration requirement considerably raised the threat to society because" Schroeder "was currently likely to reoffend." (Thai, supra, 90 Cal.App.5th at p. 433.) Therefore, the trial court abused its discretion in denying Schroeder's petition to terminate his sex offender registration under section 290.5, subdivision (a).
DISPOSITION
The order is reversed, and the matter is remanded with directions to grant Schroeder's petition.
WE CONCUR: SANCHEZ, ACTING P. J. GOODING, J.