People v. Franco

317 Cal.Rptr.3d 605

The PEOPLE, Plaintiff and Respondent,

v.Arturo Montoya FRANCO, Defendant and Appellant.

B324852

Court of Appeal, Second District, Division 2.

Filed January 25, 2024

APPEAL from an order of the Superior Court of Los Angeles County, David C. Brougham, Judge. Reversed. (Los Angeles County Super. Ct. No. A533690)

Sharon Fleming, Ben Lomond, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

HOFFSTADT, J.

A sex offender convicted in the 1980s petitioned the trial court to be removed from California’s registry of sex offenders on account of living 37 subsequent years of a law-abiding life. (Pen. Code, § 290, subd. (a)(1).)¹ The People opposed, chiefly on the ground that one of the offender’s sex crimes—if prosecuted today under a statute enacted 21 years after his conviction—would render him ineligible to petition for removal from the registry. This case thus presents the question: May a trial court deny a petition seeking removal from the sex offender registry on the ground that the offender’s underlying sex crime also constitutes a different, later-enacted sex crime for which lifetime registration is required (and hence removal is not authorized)? We conclude that the answer is "no." Because the trial court otherwise gave the "egregious" nature of the underlying crime controlling weight while giving no weight to the factors bearing on the now-75-year-old offender’s current likelihood of reoffending, the court’s analysis runs afoul of People v. Thai (2023) 90 Cal.App.5th 427, 307 Cal.Rptr.3d 178 (Thai) and must be reversed.

FACTS AND PROCEDURAL BACKGROUND

I. The Underlying Crimes²

In the early 1980s, Arturo Franco (defendant) lived with his stepdaughter, J. In September 1983, when J. was seven years old, defendant pulled her underwear down to her knees and inserted his penis "in [her] hole"; J. reported that "some white stuff came out from [her] cookie and his thing." In February 1985, defendant rubbed J.’s vagina with his fingers through her underwear.

II. Defendant’s Plea and Sentence

In the spring of 1985, the People charged defendant with two counts of committing lewd and lascivious acts with a minor (§ 288, subd. (a).) On May 31, 1985, defendant pled no contest to both counts. The trial court sentenced defendant to six months in jail, followed by five years of formal probation. Defendant was also ordered to register as a sex offender for the rest of his life. In 1989, defendant successfully completed probation.

III. Petition For Removal From Sex Offender Registry

On September 9, 2021, defendant filed a petition to terminate the sex offender registration requirement. Specifically, he alleged that his offenses made him a "Tier 2" offender, that such offenders are eligible for removal after being registrants for 20 years, and that defendant had been a registrant for 37 years.

The People objected to defendant’s petition and demanded a hearing. In a subsequently filed opposition, the People argued that one of the two sex crimes would now be prosecuted as a violation of section 288.7—as having "sexual intercourse" "with a child who is 10 years of age or younger" (§ 288.7, subd. (a))—and that persons convicted under section 288.7 are "Tier 3" offenders who are generally ineligible to be removed from the registry.

Defendant filed a further response with exhibits detailing (1) his unfailing compliance with his sex offender registration requirement as well as lack of any arrests for the intervening 37 years; (2) the progress he made in psychotherapy sessions, completion of a counseling program, and willingness to admit to the crimes and show remorse; (3) his 34-year marriage and family stability; (4) his military service in the 1970s; (5) his post-conviction work history; and (6) his involvement in church activities.

The trial court held a hearing on November 10, 2022. The court described the "two biggest factors" favoring defendant were that he (1) "has no criminal behavior before or after [the 1980s offenses]," and (2) has not reoffended in 37 years. "[E]ven balancing in all the other factors," the court nevertheless found that two factors disfavoring defendant and tied to the underlying crimes—namely, (1) the nature of the crimes, and (2) the age of the victim—were "the focus." The court characterized the first incident as "shocking" and "egregious community threatening behavior" be- cause it entailed "a grown man … hav[ing] full on sexual intercourse with his seven-year-old daughter." The court had also observed that this incident would likely qualify for prosecution under section 288.7 were it prosecuted today, and would thereby carry a 25-year-to-life sentence and a lifetime registration requirement. While the court felt that "sending [defendant] back to prison for 25-to-life or more years in prison" was not warranted, "requiring him to continue registering" would "significantly enhance[ ]" "community safety." For the same reason, the trial court also ruled that defendant could not file a subsequent petition for removal from the registry for the maximum amount of time—namely, for five years.

IV. Appeal

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the trial court erred in (1) denying his petition for removal from the sex offender registry, and (2) requiring him to wait five years before filing another petition.³

I. Pertinent Law

A. Sex offender registration requirement

[1] California law requires persons convicted of certain sex crimes or those whose offenses are sexually motivated to register with California’s sex offender registry. (§ 290, subds. (b) & (c); People v. Mosley (2015) 60 Cal.4th 1044, 1048, 185 Cal.Rptr.3d 251, 344 P.3d 788.) Due to a perceived propensity for recidivism, sex offenders are viewed as posing a " ‘ " ‘continuing threat to society.’ " ’ " (People v. Sorden (2005) 36 Cal.4th 65, 73, 29 Cal. Rptr.3d 777, 113 P.3d 565.) The "overriding purpose" of sex offender management is to mitigate that threat, thereby "enhanc[ing] community safety by preventing future sexual victimization." (§ 9000, subd. (d).) Requiring sex offenders to register serves that purpose by ensuring that the offenders are readily available for police surveillance. (Sorden, at pp. 73-74, 29 Cal.Rptr.3d 777, 113 P.3d 565.)

For many years, California took a one-size-fits-all approach to sex offender registration: If registration was required, registration was always for life. (Stats. 1947, ch. 1124, § 1, p. 2562.)

Over time, this one-size-fits-all approach led to California having "the largest number of registrants in the nation," "mak[ing] it difficult for law enforcement to effectively supervise those who present[ed] the greatest public danger." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 894, 183 Cal.Rptr.3d 96, 341 P.3d 1075 (dis. opn. of Werdegar, J.), citing Cal. Sex Offender Management Bd., A Better Path to Community Safety: Sex Offender Registration in California (2014) p. 3, and Cal. Sex Offender Management Bd., Recommendations Report (Jan. 2010) p. 50.) In order to reduce the burden on this overwhelmed system and thereby free up law enforcement to supervise the sex offenders who pose the greatest risk to the community (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. Sess.) as amended Sept. 8, 2017, pp. 12-13), our Legislature amended the sex offender registration statutes in 2017 to create a three-tiered system, with offenders in each tier presumptively obligated to register for differ- ent periods of time depending on the degree of risk they pose to the community (Stats. 2017, ch. 541, § 2.5; see § 290, subd. (d)). The amended scheme sets up the following tiers:

• Tier 1. Tier 1 is for sex offenders posing the least risk of recidivism. They may apply for removal from the sex offender registry after 10 years. (§ 290, subd. (d)(1).)

• Tier 2. Tier 2 is for sex offenders posing a medium risk of recidivism. They may generally apply for removal from the sex offender registry after 20 years (§ 290, subd. (d)(2)), although some Tier 2 offenders may apply for removal after 10 years (§ 290.5, subds. (b)(1) & (b)(2)).

• Tier 3. Tier 3 is for sex offenders posing the greatest risk of recidivism. They are required to register for life (§ 290, subd. (d)(3)), although there are exceptions under certain circumstances (id., § 290.5, subd. (b)(3)).

Placement into Tier 1 and Tier 2 turns on the crime of which the defendant "was convicted." (§ 290, subds. (d)(1)(A) & (d)(2)(A).) Placement into Tier 3 generally turns on the crime of which the defendant "was convicted," but can also turn on the defendant’s "risk level on the static risk assessment instrument for sex offenders (SARATSO)," on his recidivism, or on prior commitment to a state mental hospital as a sexually violent predator. (Id., subd. (d)(3).)

B. Removal from the sex offender registry

Once a Tier 1 or Tier 2 defendant has been a sex offender registrant for the minimum amount of time mandated by their tier, they may petition to be removed from the registry and for relief from the duty to continue to register. (§ 290.5, subd. (a)(1).) If the defendant does not "meet the statutory requirements" for removal or has not properly served or filed their petition, the trial court may summarily deny the petition after "stat[ing] the reasons" for doing so. (Id., subd. (a)(2).) If the defendant avoids summary denial, the People must elect whether to request a hearing. If the People do not request a hearing, the trial court must grant the petition as long as the defendant is currently registered, has no pending charges, and is not in custody or on parole, probation or supervised release. (Ibid.) If ...