Opinion
B321335
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MARK WERTHEIMER, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, and Mark Wertheimer, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA090656, Richard H. Kirschner, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, and Mark Wertheimer, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZUKIN, J.
Defendant Mark Wertheimer appeals from the judgment following his conviction of two counts of failing to update his sex offender registration (Pen. Code, § 290.012, subd. (a)).
All further statutory references are to the Penal Code.
Defendant's appointed counsel filed an opening brief raising no issues and requested this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We directed counsel to send the record and a copy of the brief to defendant, and notified defendant of his right to respond within 30 days. As defendant has done so, we evaluate the specific arguments raised in his brief but do not conduct an independent review of the record to identify unraised issues.
In his supplemental brief, defendant claims he was never notified of the requirement to register annually as a sex offender at sentencing for his 1992 conviction under section 288, subdivision (c); sex offender registration was never imposed as part of the sentence for his 1992 conviction; and principles of res judicata, ex post facto, double jeopardy, and due process bar enforcement of the registration requirement.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, defendant pled guilty to committing a lewd or lascivious act upon a child of 14 or 15 years, when defendant was at least 10 years older than the child (§ 288, subd. (c)). When accepting defendant's guilty plea, the trial court asked defendant if he understood he would be required to register as a sex offender. Defendant said, "Yes, I do."
From 1993 through 1996, defendant registered as a sex offender and signed and dated the boxes on the registration form indicating he was advised that registration was a lifetime requirement.
In an amended information filed on September 16, 2021, the District Attorney of the County of Los Angeles charged defendant with two counts of failing to update his registration annually. (§ 290.012, subd. (a).) On June 23, 2022, the trial court found defendant guilty as charged. The court sentenced defendant to 16 months on count 1, and an additional concurrent sentence of 16 months on count 2. The trial court ordered defendant to continue registering as a sex offender until February 11, 2030 and released him on his own recognizance pending appeal.
DISCUSSION
Section 290, part of California's Sex Offender Registration Act, requires "[e]very person described in subdivision (c), for the period specified in subdivision (d) while residing in California . . . shall register with the chief of police [or other local authority] . . . within five working days of coming into, or changing the person's residence within, any city, county, or city and county, or campus in which the person temporarily resides, and shall register thereafter in accordance with the Act." (§ 290, subd. (b).) Subdivision (c) of section 290 lists the offenses subjecting a defendant to mandatory sex offender registration. Violation of section 288 is a listed offense. Section 290.012 further requires persons subject to section 290 to register annually, within five working days of his or her birthday, and to update that registration with specified authorities.
Section 290.012, subdivision (a) states in relevant part: "Beginning on his or her first birthday following registration or change of address, the person shall be required to register annually, within five working days of his or her birthday, to update his or her registration with the entities described in subdivision (b) of Section 290.... The registering agency shall give the registrant a copy of the registration requirements from the Department of Justice form."
Defendant does not dispute his failure to register under section 290.012. His reason for failing to do so-he was not advised of the registration requirement at the sentencing hearing for his 1992 conviction- is unavailing. The obligation to register was not part of defendant's sentence but a separate consequence of his conviction automatically imposed as a matter of law. (People v. Picklesimer (2010) 48 Cal.4th 330, 338 (Picklesimer).) Defendant was advised, moreover, of the mandatory registration requirement when he pled guilty. He was again advised of his obligation to register when he complied with the registration requirement in 1993, 1994, 1995, and 1996.
The doctrines of res judicata, ex post facto, double jeopardy, and due process, on which defendant relies as support for his appellate challenge, are inapplicable. For res judicata to apply in a criminal or civil case, "there must be a final judgment or determination of an issue; that is, a judgment or determination that is final in the sense that no further judicial act remains to be done to end the litigation. [Citation.]" (People v. Scott (2000) 85 Cal.App.4th 905, 919.) Registration requirements and placement on the state sex offender registry are not part of the judgment in defendant's case, but rather collateral consequences of that judgment. (Picklesimer, supra, 48 Cal.4th at p. 337.) Res judicata accordingly does not apply.
Defendant's basis for asserting the ex post facto doctrine is unclear; however, that doctrine is inapplicable in any event. A statute violates the ex post facto clauses of the federal and California Constitutions only if it retroactively imposes punishment for a criminal act. (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Grant (1999) 20 Cal.4th 150, 158.) Sex offender registration is not punishment. "[T]he United States Supreme Court confirmed beyond doubt that laws requiring the registration of convicted sex offenders-including now common provisions for public dissemination of information about the identity and whereabouts of dangerous offenders-do not impose punishment for purposes of the federal ex post facto clause. [Citation.]" (In re Alva (2004) 33 Cal.4th 254, 273.) The California Supreme Court has also held that mandatory sex offender registration required by section 290 is not punishment for purposes of the ex post facto clause of the California Constitution. (Alva, at p. 292; People v. Castellanos (1999) 21 Cal.4th 785, 796 (Castellanos).) Our state high court concluded that the law is regulatory in nature, intended to assure that persons convicted of enumerated crimes shall be readily available for police surveillance at all times because the Legislature has deemed them likely to commit similar offenses in the future. (Castellanos, at p. 796.)
The California Supreme Court has also held that a felony prosecution for failure to notify of a change of address under the sex offender registration statute is not prohibited as ex post facto, despite changes to the statute. (Wright v. Superior Court (1997) 15 Cal.4th 521, 531.) The high court reasoned that failure to register is a continuing offense. "By its very nature, a continuing offense does not implicate ex post facto considerations because the law does not 'change[ ] the legal consequences of acts completed before its effective date.' [Citation.] It operates solely with respect to subsequent conduct. 'If the conduct, condition, or failure to act continues after the enactment or amendment of the statute in question, this statute may be applied without violating the ex post facto prohibition.' [Citation.] Simply put, 'ex post facto' means 'after the fact'; it does not mean 'during the fact.' It, therefore, does not encompass offenses for which the defendant is prosecuted or punished based on acts continuing beyond a change in the law." (Ibid.)
Double jeopardy does not apply because sex offender registration is not punishment. (See Alva, supra, 33 Cal.4th at p. 261 [registration requirement is not punishment for purposes of constitutional prohibition against cruel and unusual punishment].) Because registration is not punishment, the double jeopardy clause has no application to defendant's challenge. (Hudson v. United States (1997) 522 U.S. 93, 99.)
Defendant's due process challenge is similarly without merit. "[D]efendants who have been convicted of crimes have greatly attenuated privacy rights-especially regarding their identities. Consequently, a postconviction registration requirement for enumerated sex offenses does not infringe on any rights 'identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.' [Citations.]" (People v. Jeha (2010) 187 Cal.App.4th 1063, 1080.) The registration requirements defendant challenges are not "'unreasonable, arbitrary or capricious'" but instead "have 'a real and substantial relation to the object sought to be attained.'" (People v. Travis (2006) 139 Cal.App.4th 1271, 1293.) The sex offender registration law is a "comprehensive statutory scheme governing the registration of sex offenders," the purpose of which is to make certain that sex offenders are "'readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future.'" (Wright v. Superior Court, supra, 15 Cal.4th at pp. 527-528.) The registration requirement is regulatory, not punitive. (Picklesimer, supra, 48 Cal.4th at p. 344.) Defendant's due process rights have not been violated by enforcement of section 290.012.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COLLINS, Acting P. J., MORI, J.