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The People v. Michael Paul Ballinger

December 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL PAUL BALLINGER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F6695)

The opinion of the court was delivered by: Robie , J.

P. v. Ballinger

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Michael Paul Ballinger pled guilty to unlawful sexual intercourse and was ordered to register as a sex offender pursuant to Penal Code*fn1 section 290.006. On appeal, defendant contends the trial court abused its discretion in requiring registration because there was no evidence that he is likely to commit future sexual offenses. We disagree and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 20, 2010, Redding police officers were dispatched to a hotel to conduct a welfare check. During the investigation, the officers came into contact with 15-year-old J. K., who informed them that defendant had sexually assaulted her.

According to J. K., she and defendant had been looking for a place to sleep in the Parkview neighborhood. Eventually, they located a flatbed trailer and J. K. fell asleep. Despite the fact that J. K. had told defendant her age numerous times, defendant, who was 40 years old and considered to be like a "father figure," began to rub her chest and lower body with his hands. In an attempt to stop defendant from touching her, J. K. rolled over on to her stomach. She was too afraid to say anything to defendant because he was older and bigger.

Defendant proceeded to pull J. K.'s pants and boxer shorts down to her ankles and engaged in vaginal intercourse without a condom. The following morning, J. K. informed a group of acquaintances that defendant had "raped" her. As one of the group members informed the others of J. K.'s accusation, defendant walked by and said, "[y]eah, I fucked that bitch."

Defendant pled guilty to unlawful sexual intercourse in violation of section 261.5, subdivision (d). At the time of the guilty plea, the prosecutor requested a delay in sentencing to brief the issue of discretionary sex offender registration pursuant to section 290.006, which provides that "[a]ny person ordered by any court to register pursuant to the [Sex Offender Registration Act] for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." Defendant filed an opposition to discretionary registration.

The trial court decided to order defendant to register as a sex offender pursuant to section 290.006. In stating its reasons for requiring registration, the court observed that defendant's comment, "[y]eah, I fucked that bitch," was a "clear sign of sexual gratification." The trial court also noted that it had considered defendant's prior criminal record, which the court described as a "cornucopia of various crimes," and described the unlawful sexual intercourse with J. K. as "just another aspect of the rainbow of crimes that he has done." Ultimately, the trial court determined that defendant's record required him to register.

Defense counsel advised the trial court that he had not heard "the reasoning" for the registration requirement. The trial court replied that this crime was just "another on the continuum of [defendant's] criminal activity, and I find that it should be required that he register." Defense counsel subsequently objected on the ...


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