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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 ...