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The People v. Michael Paul Ballinger

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 basis that he did not "see the Court giving both components [of section 290.006]."

DISCUSSION

Defendant argues that the trial court abused its discretion by requiring him to register as a sex offender pursuant to section 290.006. Defendant primarily relies on Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78, in which the court held that "one of the 'reasons for requiring registration' under section 290.006 must be that the defendant is likely to commit similar offenses--offenses like those listed in section 290--in the future." Based on Lewis, defendant argues that the record lacks substantial evidence to establish that he is likely to commit future sexual offenses because his criminal history, although lengthy, involves non-sexual crimes. Accordingly, defendant argues that the trial court abused its discretion in requiring sex offender registration. This argument lacks merit.

We review a trial court's decision of whether to require registration pursuant to section 290.006 for abuse of discretion. In applying an abuse of discretion standard, "[b]road deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did."'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

The trial court did not abuse its discretion. In viewing the evidence in a light most favorable to the decision of the trial court, we conclude the registration requirement was reasonable under the circumstances. As required by the provisions of section 290.006, the trial court held that defendant committed the offense as a result of sexual gratification, and also provided reasons for its findings and for requiring registration. Specifically, the trial court held that defendant had committed the offense as a result of sexual gratification by commenting that he "fucked that bitch" the morning after he committed the crime. Additionally, trial court stated on the record that the basis for its findings and the reasons for requiring registration was the result of defendant's lengthy criminal history.

The fact that defendant's criminal record lacks sex crimes is of no consequence. The disparity in age between the 40-year-old defendant and the 15-year-old victim tends to show that defendant is likely commit similar offenses in the future. Moreover, it is evident from defendant's criminal history that he has a problem following the law. Now that he has committed one sex crime, the trial court could reasonably determine that his chronic inability to conform his conduct to the dictates of the law is likely to manifest itself again in the future with additional sex offenses. It was therefore reasonable for the trial court to require lifetime sex offender registration.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. HOCH , J.


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