IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID JEFFREY NOYES, DEFENDANT AND APPELLANT.
Super. Ct. No. 04WF2942 Appeal from an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Appeal treated as petition for writ of mandate. Petition granted.
The opinion of the court was delivered by: O'leary, J.
P. v. Noyes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2005, David Jeffrey Noyes pled guilty to multiple sex offenses including oral copulation with a minor (Pen. Code, § 288a (b)(1)),*fn1 which resulted in his mandatory registration as a sex offender under section 290. In 2009, he filed a motion to be relieved of the registration requirement in accordance with People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). The trial court agreed that under Hofsheier mandatory registration could not be required of Noyes, but it ordered Noyes should remain subject to discretionary registration under section 290.006 for the time being, advising him to renew his request in the trial court for relief from registration in three years or following completion of parole, whichever came first. Noyes contends the trial court abused its discretion for numerous reasons, one of which has merit--the trial court imposed discretionary lifetime registration based on a misunderstanding of its ability to later relieve Noyes of the registration requirement. For reasons that will be discussed, we will treat Noyes's appeal as a petition for writ of mandate and grant the writ directing the trial court's order be reversed and the matter remanded for the trial court to exercise its discretion to determine whether to require Noyes to register as a sex offender under section 290.006.
FACTS AND PROCEDURE
Underlying Offense and Probation Violation
Between October 2003 and July 2004, Noyes, then about 32 years old, engaged in various voluntary sexual acts with the 16-year-old sister of his ex-wife, with whom he was in the midst of a contentious divorce. In October 2004, he was charged with eight felony counts.
In August 2006, Noyes, represented by the Public Defender, pled guilty to four counts of oral copulation of a minor (§ 288, subd. (b)(1)), two counts of sexual penetration of a minor by a foreign object (§ 289, subd. (h)), and two counts of unlawful sexual intercourse (§ 261.5, subd. (c)). The trial court reduced seven of the counts to misdemeanors, imposed a three-year suspended sentence, ordered mandatory sex offender registration pursuant to section 290, subdivision (c), and placed Noyes on three years formal probation.
One of the conditions of Noyes's probation was that he not frequent places where minors congregate. On March 9, 2009, Noyes was charged with violating probation after he attended his daughter's school Christmas concert at a local shopping mall, even though his probation officer specifically told Noyes he could not. In May, Noyes admitted the probation violation and probation was revoked. Noyes was sentenced to 16 months in prison on the one felony count of oral copulation of a minor and sentence on the remaining misdemeanor counts was stayed. He was given credit for time served and released on parole.
On June 19, 2009, Noyes filed a motion requesting the lifetime mandatory sex offender registration requirement be removed as permitted by the Supreme Court's decision in Hofsheier, supra, 37 Cal.4th 1185. Among the documents Noyes submitted in support of his motion was a report prepared on March 13, 2005, prior to his original sentencing, by Veronica A. Thomas, a clinical and forensic psychologist. Thomas had opined Noyes was not at high risk of reoffending. Although Thomas referred to Noyes's "ex-wife as a person with whom he probably [also] had sexual encounters with prior to her legal age[,]" (there was testimony at Noyes's preliminary hearing that Noyes had begun a sexual relationship with his ex-wife when she was about 16 years old and he was in his mid-20s), Noyes was "not a sexual predator, and he does not demonstrate deviant sexual interests." Thomas opined Noyes had a personality disorder that was "primarily responsible for [his] failure to adhere to social norms regarding sex with minors . . ." and until addressed "he could engage in similar behaviors." The charged offenses were related to Noyes's "emotional immaturity and chacterological deficits that permitted him to rationalize a sexual relationship with the victim[,]" and Noyes "should not fraternize with anyone under the age of , become involved with women who have teenage daughters, frequent venues where adolescents congregate," or otherwise work with children.
Noyes also submitted a "STATIC-99 Scoring Worksheet" prepared by his probation officer in December 2008.*fn2 Noyes was scored as a "1," on the worksheet, which translated to having a low risk of sexual recidivism. Noyes also submitted a 2005 letter his current counsel found in the Public Defender's file. The letter was from an attorney who represented another man who had been charged in Los Angeles County with having unlawful sex with the same victim in July 2003 (a few months before Noyes began having sex with her). Noyes argued the fact the victim was apparently voluntarily having sex with another man also in his 30's around the same time period "could be relevant as to sentence mitigation."
On July 1, 2009, the People filed opposition to Noyes's motion. They argued Hofsheier did not apply to the facts of Noyes's case, a position since abandoned,*fn3 and in the alternative the trial court should exercise its discretion under section 290.006 to nonetheless require registration.
Noyes's motion came on for hearing on July 10, 2009. Noyes was not present but was represented by retained counsel. The trial court observed that even if mandatory registration was not required pursuant to Hofsheier, it still had to consider whether discretionary registration was required under section 290.006, and the court had no recent information bearing on that issue. The court continued the hearing to September 18, ordered that Noyes appear at the hearing, and ordered preparation of reports related to Noyes pursuant to section 288.1.
On August 11, 2009, Noyes filed an ex parte application to file supplemental briefing "in response to the court's sua sponte decision to withhold [Hofsheier relief]." In short, Noyes asserted the trial court was required to rule on whether he was entitled to be relieved from mandatory registration under Hofsheier, and whether he should then be subject to discretionary registration was a separate matter that should be handled by a separate motion at a later time. Noyes also filed a request to take judicial notice of various documents in support of his Hofsheier motion. On August 27, the trial court ordered it would treat the filings as a request that it rule on the original motion immediately (rather than at the continued hearing). It ordered the supplemental pleadings be filed, and denied "all of [Noyes's] other requests for relief . . . without prejudice until this matter comes on for hearing as scheduled on September 18, 2009."
On September 14, 2009, Noyes filed a document titled, "Response of [Noyes] to People's motion for discretionary registration pursuant to . . . section 290.006." In it Noyes asserted the People's July 1, 2009, opposition to his motion was a de facto motion for discretionary sex offender registration. He argued discretionary registration was not warranted, and again presented the same documents submitted with the original motion and his supplemental briefing. The matter was continued to October 30.
On October 29, 2009, Thomas reported on her subsequent evaluation of Noyes. Noyes told Thomas he had violated probation by attending his daughter's concert at a shopping mall, but claimed he had approval from his probation officer to go to the mall to pick up his children and he did not know about the concert. Personality testing showed Noyes was trying "to put his best foot forward" but was "a person who has limited insight or awareness into himself." He had "fixed, maladaptive coping strategies." Sex specific testing showed Noyes's "sexual interests are in adolescent and adult females," but there was "[n]o finding for persistent sexual interest in children . . . and this is consistent with his 2005 evaluation." Thomas found no evidence "Noyes is a sexual predator or that his choice of victim reflects deviant sexual interests. The charges to which he pled guilty can be viewed as situational and opportunistic and a reflection of his personality disorder . . . ." Thomas noted Noyes had "repaired his relationship with his ex[-]wife" and was in counseling. She concluded, "[t]he same relevant risk factors apply at this time as they did in 2005 to . . . Noyes. He does not have deviant sexual interest in children as measured by objective means . . . . The cognitive distortions and rationalizations that permitted him to engage in the acts to which he pled guilty are representative of boundary and judgment deficits, not sex deviance. He has not repeated the actions previously charged while on probation. The likelihood that he will engage in additional similar behavior decreases with time." Thomas did not believe Noyes was a sexual predator, and "[t]he likelihood of his engaging in further similar acts is low."
At the hearing on October 30, 2009, the trial court agreed that under Hofsheier, Noyes must be relieved of the mandatory registration requirement. The court turned then to whether discretionary registration should be required.
The court first noted Thomas's October 29 report was focused on whether Noyes demonstrated sexual deviance, "but that's really not what the court is supposed to look at" with regards to discretionary registration. Rather, the court was to look at whether the offense was committed "'as a result of sexual compulsion or as a result of sexual gratification.'" The court noted the offenses were clearly committed for purposes of sexual gratification, an observation with which Noyes's counsel agreed. The court commented that even though Thomas (and the STATIC-99 worksheet) deemed Noyes to be "low risk," nothing had changed--he was low risk when the offenses had occurred, but he committed them nonetheless. "Why would I conclude he's no risk today when he's at the same level of risk when he committed the crimes four years ago?"
The court concluded that although mandatory registration could not be required, Noyes's request to be relieved from the sex offender registration requirement altogether was "premature" because grounds for discretionary registration existed. The court gave as its reasons the portions of Thomas's report referred to above. Accordingly, the court ruled "discretionary relief as to . . . section 290 registration is premature and [it] den[ied] [Noyes's] motion as to this request without prejudice. [¶] [Noyes] not to re-apply before [three] years . . . or expiration of [p]arole, whichever comes first." In ruling, the trial court commented to Noyes, "If you successfully complete parole . . . with everything they ask you to do, I at this moment at least am thinking that you may merit reconsideration and the relief you ask for."
On November 30, 2009, Noyes filed a motion titled, "Motion to modify findings to remove discretionary sex offender registration requirement or for new hearing on People's motion to impose discretionary sex offender registration requirement; to reconsider People's motion to impose discretionary sex offender registration requirement; and for leave to file a supplemental brief . . . ." The motion came on for hearing on December 18 and was denied.
Noyes contends the trial court abused its discretion in ruling on his motion for various reasons. We conclude the order constituted an abuse of discretion because the record indicates the trial court imposed discretionary registration based on a misunderstanding of its power to later relieve Noyes of the lifetime registration requirement.
When Noyes was originally sentenced in 2005, section 290 mandated lifetime registration for anyone convicted of violating section 288a. In Hofsheier, supra, 37 Cal.4th 1185, the Supreme Court "concluded imposition of mandatory lifetime sex offender registration on defendants convicted of violations of . . . section 288a, subdivision (b)(1) for voluntary oral copulation with a 16- or 17-year-old minor violated the state and federal equal protection clauses." (People v. Picklesimer (2010) 48 Cal.4th 330, 335, fn. omitted (Picklesimer).) The court's ruling was predicated on the fact defendants convicted of sexual intercourse with a minor (§ 261.5) were similarly situated but were not subject to a mandatory registration requirement. (Picklesimer, supra, 48 Cal.4th at p. 336.) Such defendants could only be required to register pursuant to former section 290, subdivision (a)(2)(E), since renumbered as section 290.006, which provides the trial court discretion to order lifetime registration for offenses not otherwise subject to mandatory registration. (Hofsheier, supra, 37 Cal.4th at pp. 1197-1198.) Hofsheier ruled the appropriate remedy for the equal protection violation was to "remand [the matter to the trial court] for application of section 290.006 . . . . [Citation.]" (Picklesimer, supra, 48 Cal.4th at p. 342.)
To require discretionary registration under the section 290.006, "the trial court must engage in 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." (Hofsheier, supra, 37 Cal.4th at p. 1197.) In other words, the trial court must first decide whether the crime was committed as a result of sexual compulsion or for purposes of sexual gratification. If the court determines the act was committed for such a purpose, it must then decide whether to exercise its discretionary authority to require lifetime registration and state the reasons for its decision.
Preliminarily, the Attorney General contends Noyes's appeal is subject to dismissal because the trial court lacked jurisdiction to consider his motion. In Picklesimer, supra, 48 Cal.4th 330, decided after the order in this case was entered, the Supreme Court resolved uncertainty regarding the appropriate procedural method for asserting a Hofsheier equal protection claim for defendants convicted for violating section 288a, subdivision (b)(1), before Hofsheier was decided, concluding relief must be sought by way of a petition for writ of mandate or petition for writ of habeas corpus. (Picklesimer, supra, 48 Cal.4th at p. 335.) The court held a "freestanding postjudgment motion for Hofsheier relief," such as the one filed in this case by Noyes, "is not cognizable" because in most cases, "'after the judgment has become final, there is nothing pending to which a motion may attach.' [Citation.]" (Id. at pp. 335, 337.) The court explained for a defendant like Noyes who is still in actual custody or constructive custody on probation or parole, a petition for writ of habeas corpus is the preferred method to challenge the mandatory registration requirement. Once a defendant is out of custody that method is foreclosed and relief must be sought by way of a petition for writ of mandate. (Id. at pp. 338-339.)
The Attorney General, however, concedes that where the record is complete a freestanding Hofsheier motion may be deemed a writ petition and reviewed accordingly. In Picklesimer, supra, 48 Cal.4th at pages 340-341, the Supreme Court held an appellate court may treat an appeal from a freestanding Hofsheier motion as a petition for writ of mandate in the first instance if "the appellate record is sufficient to determine that all potential factual issues are undisputed." Here, Noyes's motion was decided based on evidence presented at a contested hearing in the trial court. The trial court had before it, as do we, the preliminary hearing transcript, documents relating to Noyes's plea and his probation violation, documents from his case file, and two reports from Thomas. Thus, as the Attorney General implicitly concedes, there is a full record in this case and we may properly exercise our discretion to review the trial court's order as a petition for writ of mandate.
Abuse of Discretion
We turn to Noyes's contention the trial court abused its discretion by ordering him to register under section 290.006. He argues the court ordered discretionary registration erroneously believing that if Noyes demonstrated for a few more years that he was unlikely to reoffend, it could relieve Noyes of the lifetime registration requirement.
Hofsheier concluded the mandatory registration requirement imposed for convictions under section 288a, subdivision (b)(1) (oral copulation with a minor), violated equal protection. It remanded for a determination of whether defendant should nonetheless be subjected to lifetime registration under the discretionary registration provision. Section 290.006 gives the trial court discretion to impose lifetime registration as a sex offender for a crime not subject to mandatory registration if it finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and states its reasons for these findings.
Here, Noyes filed a motion seeking relief from mandatory registration under Hofsheier. In its opposition, the prosecution urged the court to exercise its discretion to nonetheless require lifetime registration under section 290.006. In ruling, the trial court presupposed Noyes was subject to discretionary registration, advising Noyes his request to be relieved from registration was premature. It denied Noyes's request to be relieved from discretionary lifetime registration without prejudice to his reapplying to the court for relief in three years or upon expiration of parole, whichever came first. The court observed that if Noyes successfully completed parole, he might "merit reconsideration" by the court--"this may well be a case that you could earn your way to relief from the discretionary registration requirement . . . if you keep doing what you're doing."
Once Noyes established he could not be subject to mandatory registration under section 290, the trial court's obligation was to determine if Noyes should be subject to lifetime registration in accordance with section 290.006. It appears from the record the trial court imposed the obligation on the erroneous assumption it could later relieve Noyes of the registration obligation if he renewed his motion in the trial court. But the only mechanism for relief from lifetime sex offender registration is that specified in section 290.5. Generally, a person required to register will "upon obtaining a certificate of rehabilitation . . . be relieved of any further duty to register . . ." (§ 290.5, subd. (a)(1)), but if the person was convicted of certain enumerated offenses, including a violation of section 288a, obtaining a certificate of rehabilitation will not relieve him of the duty to register. (Hofsheier, supra, 37 Cal.4th at p. 1196 ["defendant convicted of oral copulation with a minor under section 288a, [subd.] (b)(1) may be eligible for a certificate of rehabilitation . . . [but a] certificate will not relieve the defendant of the lifetime registration requirement"].) As the Attorney General concedes, the only means for obtaining relief from the discretionary lifetime registration requirement for one such as Noyes is to obtain a full pardon from the Governor. (§ 290.5, subd. (b)(1); In re Alva (2004) 33 Cal.4th 254, 265, fn. 4.)
The trial court's decision to require registration under section 290.006 is one that rests in its sound discretion. But if that decision was premised on an erroneous assumption as to the ease with which the onerous burden of lifetime registration could be lifted, then it is not "sustainable as a proper exercise of discretion." (In re Large (2007) 41 Cal.4th 538, 550.) For that reason, we must reverse the order and remand to the trial court to conduct a new hearing on whether Noyes should be subject to lifetime registration as a sex offender under section 290.006.
Because we reverse and remand for further proceedings, we need not address most of Noyes's remaining contentions.*fn4 We do address one in detail: Noyes contends that on this record he cannot be subject to discretionary registration under section 290.006 as a matter of law. We disagree.
To require discretionary registration, the trial court must find the offense was committed as a result of sexual compulsion or for purposes of sexual gratification and state the reasons for requiring lifetime registration as a sex offender. (§ 290.006; Hofsheier, supra, 37 Cal.4th at p. 1197.) Noyes argues that consistent with the purpose of sex offender registration, one of the reasons for requiring registration under section 290.006 must be that he is likely to reoffend in the future.*fn5 (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78 (Lewis).) He argues the fact his probation officer scored him at low risk for reoffending on the STATIC-99 worksheet, and Thomas found "[t]he likelihood of his engaging in further similar acts is low[,]" precludes discretionary registration. He also contends the trial court may not consider his probation violation in its assessment because it was not for a similar offense.
When making a discretionary determination on whether to require registration under section 290.006, the trial court must consider all the relevant information. (People v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved on other grounds in Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4.) In Lewis, supra, 169 Cal.App.4th 70, defendant was convicted of oral copulation with a minor following a single consensual incident occurring when he was 22 years old and the victim was 17 years old. Twenty years later, defendant filed a Hofsheier motion. In reversing, the trial court order imposing discretionary lifetime registration under section 290.006, the appellate court noted defendant had committed no similar acts and "the only possible basis for imposing a discretionary registration requirement . . . would be a finding that it is likely [defendant] will start committing such offenses now. There is nothing in the record to support such a finding." (Lewis, supra, 169 Cal.App.4th at p. 79.)
By contrast here, Noyes was 32 years old when for almost 10 months he repeatedly engaged in sexual acts with the 16-year-old sister of his ex-wife. He had been part of the victim's family since she was eight years old. In both reports, Thomas found Noyes did not display sexual deviance and was not a sexual predator. In her 2005 report, she found Noyes was not at high risk of reoffending, but he had a personality disorder that allowed him to rationalize his sexual relationship with a minor and until addressed "he could engage in similar behaviors." In 2009, Thomas deemed Noyes to be at low risk of reoffending, but she also observed he had "limited insight or awareness" and "fixed, maladaptive coping strategies." She found "[t]he charges to which [Noyes] pled guilty can be viewed as situational and opportunistic and a reflection of his personality disorder . . . ." She observed, "The cognitive distortions and rationalizations that permitted [Noyes] to engage in the acts to which he pled guilty are representative of boundary and judgment deficits, not sex deviance." Taken as a whole, we cannot say the record would not support a conclusion Noyes presents a risk of reoffending or otherwise justify imposition of discretionary registration.
Noyes's appeal is deemed a petition for writ of mandate and is granted. Let a writ of mandate issue directing the superior court to vacate its order requiring Noyes to register as a sex offender under section 290.006 and conduct a new hearing to determine whether Noyes should be subject to registration under section 290.006.
RYLAARSDAM, ACTING P. J.