Opinion
C079725
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. PAUL ANDREW SHIELDS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09F00482)
Defendant Paul Andrew Shields was charged with one count of unlawful sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (c).) A jury found defendant guilty, and the court sentenced defendant to 25 years to life in state prison, imposed a $600 restitution fine, ordered no visitation with the victim, and required defendant to register as a sex offender. (§§ 1202.05, 290.) In a previous unpublished opinion we modified the judgment to strike the $600 fine and the no-visitation order. We also remanded the matter to the trial court to consider whether defendant should be ordered to register as a sex offender. In all other respects, we affirmed the judgment. (People v. Shields (Feb. 27, 2014, C070929) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise designated.
We treated defendant's request for judicial notice of our prior opinion as a motion to incorporate the prior record on appeal and granted the request on March 28, 2016.
On remand, defendant petitioned the trial court to resentence him under section 1170.126. The trial court held a hearing on the matter and also considered whether defendant should be ordered to register as a sex offender. The court denied defendant's resentencing petition and ordered him to register as a sex offender. Defendant appeals, contending the court abused its discretion in denying his petition and imposing lifetime registration as a sex offender. We shall direct the trial court to amend the abstract of judgment to reflect the disposition in our prior opinion, and in all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2012 an amended information charged defendant with unlawful sexual intercourse with a minor who was more than three years younger than defendant. The amended information further alleged three prior strike convictions: (1) a 1991 conviction for assault with a deadly weapon in violation of section 245, subdivision (a)(1); (2) a 1996 conviction for involuntary manslaughter with personal use of a deadly weapon in violation of sections 192, subdivision (b) and 12022, subdivision (b); and (3) a 2000 conviction for assault with a deadly weapon, a violation of section 245, subdivision (a)(1). All three prior strike convictions were serious felonies within the meaning of section 667, subdivision (a).
A jury trial followed. The following facts were presented at trial.
We take most of the facts in this case from our prior unpublished opinion. (People v. Shields, supra, C070929.
The victim, K.C., testified that she met defendant in approximately mid-November 2008 when she was visiting her father, who along with defendant was incarcerated at San Quentin State Prison. At the time, K.C. was living with her mother and her siblings in Rancho Cordova.
Defendant was released from prison in the fall of 2008. K.C.'s mother had agreed to help defendant when he was released from prison, and initially upon his release, K.C. and her mother took defendant to a homeless shelter in the Bay Area.
At some point thereafter, K.C.'s mother took a job requiring her to work weekends in Oakland and it was arranged that defendant would watch K.C. and her siblings in their home in Rancho Cordova while their mother was away at work.
Defendant was at K.C.'s home on the weekend of December 13 and 14, 2008. On the evening of December 13, defendant and K.C. were watching movies on the television in the living room. K.C. was lying on her back on the floor with a pillow and a blanket, wearing pajama bottoms and a T-shirt, but no panties. At some point, she fell asleep on the floor but was awakened when she felt her pajama bottoms being removed and defendant licking her vaginal area. Because she was afraid, she pretended to be asleep.
After licking K.C.'s vagina, defendant placed a pillow under her hips, put his penis in her vagina, and began moving back and forth so that his penis was "going in and out" of her vagina. As far as she could tell, he was not wearing a condom. When defendant began having sexual intercourse with K.C., she "got really scared" and "froze."
After defendant "was done," he left the living room and then returned, handing her a washcloth or rag without conversing with K.C. While he was out of the room, K.C. pulled her pajama bottoms back up, and when he left after handing her the washcloth, she went straight into the bathroom. At that point she noticed that there was "clear fluid" coming from her vagina. After leaving the bathroom, defendant came up behind her and asked her whether she "like[d] it," after which K.C. went upstairs to her mother's room and went to bed.
During the night, defendant twice came into the room where K.C. was sleeping, saying that he was sorry. K.C. made no response to his apology.
The weekend before this incident, when defendant was staying at K.C.'s home, he found her birth control pills in her bedroom. After she told him what they were, he asked her whether she had ever given or received oral sex. She replied that she had not and ended the conversation.
The parties stipulated that defendant was 56 years old in December 2008.
Because he was representing himself, defendant testified on his own behalf through a narrative statement to the jury.
Defendant admitted he had sexual intercourse with K.C. on December 13, 2008.
Defendant is diabetic, and during the month or two before he was released from prison he was taking the medicine Glucophage as well as insulin injections, one injection in the morning and one in the evening. He was not given a glucose meter at the time he was released from prison and did not have one on December 13, 2008.
After describing some errands that he and K.C.'s family completed on December 13 during the day, defendant testified that they returned home. Defendant testified to the events that took place that evening as follows:
". . . [K.C.] went into the living room and started decorating the [Christmas] tree, and I went into the den and was watching football.
"I stayed in there about an hour or an hour and a half, and then I went to the living room where [K.C.] was. She was finishing up decorating the tree, and she started explaining to me how she had hung our stockings according to our ages.
"And I brought up the subject to her about what she wanted to get her mother for Christmas. And she said that her mother had some Tiffany jewelry stolen from her, and then out of the clear blue she said this to me: She would have sex with me in exchange for getting that Tiffany jewelry. And I told her that that wasn't necessary. All you got to do is find a -- call the stores, get a price, and then I can see if I could get it. Then I told her that I had daughters her age, and then I explained to her and asked her did she remember that I told her that -- that I had just finished doing nine years for assaulting a man for saying that he would do the same thing to my six-year-old daughter. Also, I told her not to never disrespect me like that again. I would never stoop that low to disrespect your parents, you know. You know, I explained all that to her. And so I thought that was all over with. I thought she had got that notion out of her head.
"So she went upstairs, and she called a few stores. She came back downstairs, and she said she found a store. She found it in San Jose where I lived so I could get it without her mother knowing it. And I said okay. Then she went back upstairs, and then she came back down with a pillow and a blanket and asked me was I ready to watch the movies. I told her yes, I was ready, because we had bought movies when we were shopping.
"While we was watching movies -- I mean, before we started watching movies, I went upstairs and got me a pillow and some blankets, too, because there was no way I was going to share pillows and blankets with [K.C.] And while I was upstairs, I asked her siblings why wasn't they downstairs watching movies with us. And [K.C.'s sister, S.], the oldest that was upstairs, said that [K.C.] had told them to stay upstairs. And I asked her why, and she said because they was making too much noise. I said -- I thought that was strange because they wasn't making as much noise as they usually make. And so I went on back downstairs and started watching TV, and we watched a movie. Like [K.C.] testified to, the first movie that we watched was What Love Has to Do with It [sic].
"And after that movie, [S.] came downstairs. [S.] came downstairs, and she got something out of the refrigerator. Then she came around the counter and told me that I still had some black walnut ice cream in the freezer. And I like black walnut ice cream, so I told her okay. But before I got the black walnut ice cream I wanted to go outside to smoke before the next movie started. So I went outside and smoked, and when I came back in [K.C.] had already started the movie, so I started watching the movie instead of getting the ice cream.
"But I did make the mistake of going upstairs, getting the syringe out of my backpack and coming back down with the intentions of eating the ice cream. So I got the syringe; came back downstairs; got my insulin out the refrigerator; and drew up 20 units of NPH. That's long-lasting insulin. And I drew up five units of regular. That's fast-acting insulin.
"The reason I took the regular is because I had ate a chocolate bar that day, earlier that day, but that was a mistake that I made. So after I took the insulin, I laid back down and still didn't get the ice cream. I didn't get nothing to eat. So going back through the movies, the other movie, watching some of the other movie, [K.C.] started dozing off. And I called her name once; I woke her up; and I told her to go to bed, go upstairs to bed. She refused. I did it twice; told her to go upstairs and go to bed. She refused. And I did it a third time. The third time she did get up.
"She got up; went upstairs; and I thought she had finally went to bed, but she didn't. She went upstairs and came back down shortly afterwards. I think she just went to see if her siblings were asleep."
Defendant's testimony continued as follows:
"[K.C.] came behind me and jumped on my back. When she jumped on my back, I kind of felt uncomfortable because I could feel her breasts on me. So I told her to move and get off me. So when she moved, she moved around to my left side. And when she moved around to my left side, she tried to pull me on top of her. When she tried to pull me on top of her, I put down my left hand to brace myself. And then after I tried to brace myself, she scooted up on my hand and I could feel her vagina. When I felt her vagina, I moved my hand, and she jumped up on her knees and grabbed me. She grabbed my private part, and that's when I got mad and shoved her. I didn't mean to shove her, but I shoved her and started screaming at her, and that's the only time she left and went back and laid down.
"Once she did that, I went back outside and smoked another cigarette. When I came back in -- oh, while I was outside smoking that cigarette, I felt -- I felt shaky, confused, and fatigued. So I came back inside and laid down again. I laid down, and I started to shaking worse, and I knew that I was on the verge of having a hypoglycemia [sic] attack, and I knew I had to get [K.C.] to get my glucose out of my backpack. Once I tried to get to [K.C.], I crawled over to [K.C.] -- or towards [K.C.] I don't remember nothing else after that, but when -- when I did focus again, I was on top of [K.C.] and -- and that was the -- the act was over with.
"And after that I got up, still in a daze, still not comfortable feeling the way I was supposed to be feeling. So I did get up, and I know I apologized to [K.C.], and I went into the kitchen and made a sandwich to try to get my blood sugar up. One of the reasons I suffered that hypoglycemia [sic] attack was remember when I said that they came to pick me up after work, well, when I couldn't cash my check, I didn't have an opportunity to ask Robin to stop somewhere where I could buy something to eat because I knew they had already eaten dinner. So I had to go all night without eating. One of my biggest problems when I was spending the night with Robin was I didn't like taking food out those kids' mouths because she was struggling as it was to take care of four kids. So I was hesitant to eat at her house. So I made a lot of mistakes concerning my diabetes, you know, but it wasn't intentionally.
"I thought I was doing the right thing by trying to not take food from they [sic] mouths. I had no intentions of ever doing anything to hurt that family because, like I said, I have four daughters of my own. And I've never been charged with this kind of crime. I had -- did a lot of time in my life, but nothing like this."
On cross-examination, defendant said that after he returned to the house the second time after going out to smoke a cigarette, he entered into a "semiconscious" or "semi-unconscious" state. The next thing he remembers was being on top of K.C. with his penis in her vagina, at which time he looked down and saw her hand on his hip and then got up off of her. Without making a remark one way or the other, he went into the bathroom to clean himself up and then returned to the living room and apologized to K.C.
Defendant explained that when he described himself as "semiconscious" he meant that he was unaware of his actions and he was unaware of K.C.'s actions. He was incapable of responding as a "respectable adult." He was "semiconscious" to the extent that he remembers asking K.C. to go upstairs to get him his glucose. After that, he does not remember what happened.
The jury found defendant guilty of unlawful sexual intercourse with a minor more than three years younger than defendant. Defendant waived trial on the prior strikes and admitted to the convictions and strikes.
The court found defendant had suffered three prior strikes: a 1991 conviction for assault with a deadly weapon, a 1996 conviction for involuntary manslaughter, and a 2000 conviction for assault with a deadly weapon.
The court sentenced defendant to 25 years to life in state prison. The court also imposed a $600 restitution fine pursuant to section 243.4, ordered no visitation privileges with the victim pursuant to section 1202.5, and required defendant to register as a sex offender under section 290. The court awarded defendant 1,138 days' credit.
Defendant timely appealed. In our previous opinion, we modified the judgment to strike the $600 fine imposed pursuant to section 243.4, to strike the no-visitation order imposed pursuant to section 1202, and to order the award of 568 days' presentence custody credit. We also remanded the matter to the trial court for its consideration as to whether defendant should be ordered to register as a sex offender. We affirmed the judgment in all respects. (People v. Shields, supra, C070929.)
On remand defendant filed a petition for resentencing pursuant to section 1170.126 (Proposition 36). The trial court held a hearing on the petition and also considered whether defendant should be required to register as a sex offender. The court denied the resentencing petition and ordered defendant to register as a sex offender.
DISCUSSION
I.
Petition for Resentencing
Introduction
Under Proposition 36, a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but is subject only to a two-strikes sentence if the current felony is not serious or violent. (§§ 667, subd. (e)(2)(A) & (C), 1170.12, subd. (c)(2)(A) & (C); People v. Yearwood (2013) 213 Cal.App.4th 161, 170 (Yearwood).) "Sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C) contain four exceptions to the new restriction on imposition of a third strike sentence. Three exceptions relate to the nature of the current felony and one exception relates to the nature of the offender's prior felony convictions. If the prosecution pleads and proves one of the four exceptions, the offender will be sentenced as a third strike offender." (Yearwood, supra, 213 Cal.App.4th at p. 170.)
Section 1170.126 allows a person presently serving a three-strikes sentence for a felony that is neither serious nor violent to petition for resentencing as a second-strike offender. (§ 1170.126, subd. (a).) A prisoner is disqualified from resentencing if his or her current conviction or criminal record comes within any of the four disqualifying factors listed in sections 667, subdivision (e)(2)(c) and 1170.12, subdivision (c)(2)(C). (§ 1170.126, subd. (e).) If the prisoner is not subject to one of the disqualifying factors, the trial court shall resentence him or her under the two-strikes provision, "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
In exercising its discretion, the court may consider (1) the petitioner's criminal conviction history, including the types of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; (2) the petitioner's disciplinary record and record of rehabilitation while incarcerated; and (3) any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety. (§ 1170.126, subd. (g).)
During the hearing, the trial court requested that the parties focus on whether defendant posed an unreasonable risk. Defense counsel pointed to defendant's age, his poor health, the fact that his last violent offense was 16 years ago, and that he had not had any disciplinary actions during his incarceration. The prosecution noted defendant had been convicted of 16 offenses since 1971, five of which were felonies and three of which were violent assaults. According to the prosecution, the most convincing evidence that defendant posed an unreasonable risk of danger if released was "that he committed the statutory rape just three weeks after he was paroled from prison, from an eight year term for a violent assault."
Trial Court Findings
In the trial court's view, "this case is not a close case for granting a resentencing that would result in releasing the defendant because he does, it seems to me based upon a record replete with violence and largely uninterrupted by periods of non-criminality . . . just one criminal event after another, and really violent events for the most part, makes it clear to this Court that there really would be an unreasonable risk of danger to the public." The court elaborated further, outlining the violent aspects of the three prior assaults. Although many years had passed since the last conviction, the court noted defendant was in prison for much of that time, and "defendant barely gets out of prison before he commits the offense for which I sentenced him . . . ."
The court also focused on the charged offense: "When I heard the testimony on this and heard the evidence in this case, I really think that [this] case could have been prosecuted as a forcible rape." Moreover, the court noted defendant's diagnosis of cirrhosis of the liver was due to his hepatitis C: "The fact is he knew he had hepatitis C when he sexually assaulted or had sexual intercourse with the victim in this case [¶] . . . he put that victim at risk of contracting a deadly disease, and he knowingly did that. [¶] I appreciate the fact that he is doing, it appears, well in prison, but his issues historically have not been when he's in prison, they're when he's out, and I think that his violent history and repeated violent offenses, and then his most recent history of what really was a sexual assault are such that he does not warrant a revisiting of the strike sentence that this Court imposed."
The court found that releasing defendant "would put people at unreasonable risk because of [his] conduct." Finally, the court found its ruling would be the same even if the standard under Proposition 47 applied.
Subsequently, the People filed a court-ordered supplemental brief addressing defendant's prison conduct and any psychological evaluations since defendant's incarceration. In the supplemental brief, the People noted that defendant's "Core Men's v.4 Needs Assessment," which "measures needs that have been found in research studies to be correlated with criminal behavior and involvement in the criminal justice system for individuals in community and incarcerated settings." The assessment rated defendant highly probable for substance abuse, criminal personality, and anger. The People also attached a recent mental health referral due to defendant's "hostile/assaultive/poor self-control" and defendant's refusal to take insulin.
The court, after considering the documents, stated: "This is compelling evidence that defendant, at this time, has not changed at all and remains an unreasonable risk, even under the meaning of Penal Code § 1170.18(c)." The court concluded: "Thus, even under the 'super' standard of Penal Code § 1170.18(c), the Court hereby concludes that defendant poses an unreasonable risk of danger of committing a sexually violent offense, a lewd act on a child under 14, murder, and/or attempted murder if his sentence is recalled and he is resentenced to time served and immediately released to society."
Analysis and Conclusions
Defendant argues the court abused its discretion in denying his petition for resentencing because the court's decision was unsupported by sufficient evidence and violated due process. According to defendant, "[b]ecause the record does not demonstrate that [defendant] poses an unreasonable risk to public safety, over and above the inherent risk posed by all third strike offenders who are convicted of a current felony that does qualify as a strike, the court's exercise of discretion was contrary to the spirit of the Three Strikes Reform Act of 2012. The court's determination was an unreasonable abuse of discretion."
Fundamentally, defendant argues the court's finding that he poses an unreasonable risk of danger of committing a sexually violent predator offense was, in itself, unreasonable, "given that he has never been charged with a sexual assault of any kind prior to the current offense." He also contends the court improperly characterized his current offense and should not have considered his hepatitis C diagnosis or his disciplinary record while incarcerated.
The People have the burden of proving the facts or evidence upon which the sentencing court's finding of unreasonable risk was based by a preponderance of the evidence. (People v. Flores (2014) 227 Cal.App.4th 1070, 1076; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301-1306.) However, sentencing matters in general and the application of the three strikes law in particular are matters within the trial court's discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851; People v. Carmony (2004) 33 Cal.4th 367, 375.) The burden is on the party challenging the sentence to clearly show the sentencing decision was irrational or arbitrary. Absent such a showing, we presume the trial court acted to achieve legitimate sentencing objectives, and we will not set aside this discretionary determination on appeal. Nor will we reverse the trial court's sentencing decision simply because reasonable people might disagree; we cannot substitute our judgment for that of the trial court. (Carmony, at pp. 376-377.)
The court acted well within its discretion in denying defendant's petition. As for defendant's criminal history, the court noted the length and breadth of defendant's past convictions. The court placed special emphasis on defendant's inability to remain crime free for any significant length of time. The fact that none of the prior crimes was a sexual assault is not determinative.
Nor did the trial court improperly characterize the current offense. The sentencing court, which had heard the case-in-chief, noted that the evidence could have supported a forcible rape charge. The court did not question the decision not to charge forcible rape, but instead considered the facts surrounding the assault in determining whether defendant posed an unreasonable risk of danger to public safety.
Finally, we find no abuse of discretion in the trial court's considering the fact that defendant was diagnosed with hepatitis C when he had unprotected sex with the victim. Defendant argues the risk of transmission by sexual intercourse was low and therefore irrelevant to the court's assessment of risk. However, it is defendant's total disregard of the risk, however remote, that the trial court found added to his risk of danger to public safety. Nor did the court abuse its discretion in considering the documents addressing defendant's prison conduct and psychological health. Despite defendant's efforts to characterize these documents as irrelevant, the mental health referral documents and Core Men's v.4 Needs Assessment support the trial court's conclusion that defendant would continue the behaviors that led to his conviction, rendering him a danger to public safety.
II.
Retroactive Application of Proposition 36
Defendant contends Proposition 36 should be applied retroactively and that he should be entitled to remand for resentencing under the provisions of section 1170.12, subdivision (c). We rejected such a claim in our prior decision based on Yearwood, supra, 213 Cal.App.4th 161.
III.
Lifetime Registration
Defendant challenges the trial court's imposition of lifetime registration as a sex offender, arguing it is unsupported by a proper statement of reasons and constitutes an abuse of discretion. He argues the trial court failed to address whether he was likely to commit similar offenses in the future.
Background
Our prior opinion remanded for the trial court to exercise its discretion pursuant to section 290.006. On remand, defense counsel argued that because the crime of unlawful sexual intercourse is by its nature committed for the purpose of sexual gratification, that fact alone would not warrant discretionary imposition of the registration requirement. Instead, the court would have to find defendant "has a propensity to have sex with minors under 18 years old," and defendant's age and the fact that he had no previous history would not support such a finding.
In response, the prosecution argued propensity is not the standard under section 290.006. The court should impose the registration requirement "if the Court finds that the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification." Here, the prosecution pointed out, the defendant was 40 years older than the 16 year old, had no prior relationship, and, if the victim had not woken up, "this would be a case of a rape of an unconscious person."
At the hearing the court stated: "This was a situation where I find that the defendant committed the offense both as a result of the sexual compulsion and for the purposes of sexual gratification. He was, in the Court's view, a predator in this mix, teeing this thing up or trying to well in advance.
"It wasn't, as I said, something where he just fell into it and it happened, and, you know, was something that he had not wanted to happen. It was just the opposite.
"And it appeared to me from the trial itself, from the probation report, recounting of some of this from defendant's own presentation of his case and representing himself, that this was somebody who was very fortunate that he only was charged with and convicted of a 261.5.
"So I do find based upon the record in this case that the defendant committed this offense as a result of sexual compulsion and for purposes of sexual gratification, and I am going to require that he register pursuant to 290 of the Penal Code."
In its order, the court found: "Clearly defendant willingly engaged in sexual intercourse with the victim, after previously finding her birth control pills and asking if she had done oral copulation. Clearly, defendant wanted to have sexual intercourse with the victim, for his own sexual gratification, and he chose a time when the victim was sleeping and vulnerable, such that he could get on top of her and begin intercourse without her realizing it was happening, so that she would not be able to physically resist his actions, even if she did not actually tell him 'no' at the outset as she initially claimed."
Analysis and Conclusions
Section 290.006 allows the sentencing court to require an offender to register as a sex offender "if the court finds at the time of the conviction or sentencing that the person committed the offense as a result of sexual compulsion or for the purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration."
Application of section 290.006 requires the court perform a two-step process: "(1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197, overruled on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 875.) "If the conviction is for an offense other than those automatically requiring registration, the court may nonetheless exercise its discretion to impose a registration requirement if the court find the offense was sexually motivated or compelled, and that registration is justified by the defendant's risk of reoffense." (People v. Mosley (2015) 60 Cal.4th 1044, 1048.)
We review the trial court's decision regarding registration under section 290.006 for an abuse of discretion. We show broad deference to the trial court and reverse only if we find, given all the evidence viewed most favorably in support of the judgment, that no court could reasonably have made the determination. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Defendant argues the trial court abused its discretion by failing to address its reasons for requiring registration, that he was likely to commit similar offenses in the future. According to defendant, the court engaged in only the first step, imposing registration only because it found defendant committed the offense as a result of sexual compulsion and for purposes of self-gratification; the court failed to determine the likelihood of reoffending or state the reasons for that finding. We disagree.
During the hearing the trial court discussed defendant's history of violent behavior, disagreeing with defense counsel's statement that given defendant's age "and the fact this incident occurred once in his life indicates that this is not a situation where he has a propensity to have sex with minors." The court found: "It's not quite the event that it might otherwise have been if he got all the way to the age of 57 before committing this sort of offense. His offenses before that he had been violent or physically assaultive and then of a weapon nature.
". . . He was, in the Court's view, a predator in this mix, teeing this thing up or trying to well in advance.
"It wasn't, as I said, something where he just fell into it and it happened, and, you know, was something that he had not wanted to happen. It was just the opposite."
Defendant claims it is "irrational to conclude non-sexual criminal behavior from the past can transition into current sexual behavior in the present in such a way that the prior non-sexual crimes can serve as an indicator that the defendant will commit future sexual offenses. [Defendant's] non-sexual, assaultive behavior in the 1990s says nothing about his risk of committing a sexual offense in the future." Again, we disagree.
The court stated its reasons for requiring registration. Defendant had a history of violent and assaultive behavior, culminating in the charged offense. The court could reasonably conclude, as it did, that this type of behavior, based on defendant's past, is likely to occur. The court did not abuse its discretion in imposing registration.
IV.
Amendment of Abstract of Judgment
Finally, defendant contends the abstract of judgment has not been amended to reflect the disposition in our prior opinion. The People agree the abstract of judgment should be amended.
Our prior appeal stated: "The judgment is modified to strike the $600 fine imposed pursuant to Penal Code section 243.4, to strike the no-visitation order imposed pursuant to Penal Code section 1202, and to order the award of 568 days presentence conduct credit. The matter is remanded to the trial court for its consideration of whether defendant should be ordered to register as a sex offender pursuant to Penal Code section 290.006. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment consistent with this disposition and send a certified copy to the Department of Corrections and Rehabilitation." (People v. Fields, supra, C070929 [at p. 21].)
The amended abstract of judgment, filed June 26, 2015, (1) includes the $600 fine imposed pursuant to section 243.4 that was ordered stricken, (2) includes the no-visitation order imposed pursuant to section 1202 that was ordered stricken, (3) fails to award 568 days' presentence conduct to be credited, and (4) includes an order for registration pursuant to section 290.
We agree with the parties that the amended abstract of judgment must be corrected to conform to our disposition in the prior appeal. The $600 fine and the no-visitation order must be stricken. In addition, defendant shall be awarded 568 days' presentence conduct credit. Finally, as defendant points out, the registration requirement was ordered pursuant to section 290.006, not section 290.
DISPOSITION
The trial court shall cause the abstract of judgment to be amended to conform to our disposition in the prior appeal, People v. Shields, supra, C070929. In all other respects, the judgment is affirmed.
RAYE, P. J. We concur: NICHOLSON, J. DUARTE, J.