People v. Malbry

324 Cal.Rptr.3d 79

The PEOPLE, Plaintiff and Respondent,

v.Harry D. MALBRY, Defendant and Appellant.

B328627

Court of Appeal, Second District, Division 8.

Filed July 26, 2024

APPEAL from an order of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Affirmed. Los Angeles County Super. Ct. No. YA004627

Richard B. Lennon, Los Angeles, and Peter Westacott, 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, Scott A. Taryle, Supervising Attorney General and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

WILEY, J.

Harry Malbry wants to stop registering as a sex offender. He has this duty because, in 1991, he pleaded no contest to a charge of a lewd act on a child. He penetrated an unrelated five year old girl who called him "Daddy." He repeated this conduct on a daily basis during the work week, while the girl’s mother was away at her job. He persisted for three years until the girl eventually told her mother, after she turned eight. Malbry was convicted, imprisoned for a six-year term, released, and required to register annually as a sex offender. In 2022, Malbry petitioned the trial court to terminate his registration duty, arguing his crime-free record since 1991 showed he is no longer a danger to the community.

The trial court correctly denied Malbry’s petition. "[Community safety would be significantly enhanced by requiring continued registration." (Pen. Code, § 290.5, subd. (a)(3).) The persistence and extent of Malbry’s offense conduct, his lack of insight, and his willingness to exploit a trusting child support the trial court’s ruling. Undesignated citations are to the Penal Code.

I

The victim testified at a preliminary hearing in 1991, when she was eight years old. She knew the difference between telling the truth and telling a lie. If she told a lie, she testified, she would be punished: "No TV, no juices, no going outside, no going to birthday parties, you know, not having fun stuff." Malbry did not object to the competence of this eight-year-old witness. (See Evid. Code, §§ 700, 701, subd. (a)(2).)

The girl was alone in the house with Malbry when she came home from school during the work week.

"[W]hen my mom was at work, I would be sitting in my room, sometimes I would be sitting in the living room, and he would call me in his bedroom .… "

Malbry would "unzip his pants" and "pull out his private …. " His "private" was "that part in front" where men go "to the bathroom."

"He would pull my panties over like this."

"[H]e made me sit on his lap …. "

His "private" touched the "inside and outside" of the girl’s "private." Her "private" was "[w]hat I sit on." The court noted she "pointed to her vaginal area."

The girl told police she could feel his "private parts" inside her "private parts."

The girl said Malbry would pant like a dog. She made a panting sound to demonstrate.

"He would go run to the bathroom, and right before[,] the stuff would be falling on the floor . "

Afterward he told her, "If you tell anyone, I am going to do something bad to your mom."

The girl testified that, the first time this happened, she was "[flour or five" years old.

After the first time, it happened every day her mother was working.

It did not happen on weekends because "my mom was off on the weekends" and was home then.

When she was eight years old, in 1990, the girl told her mother something was happening.

The mother contacted authorities. She and her daughter cut contact with Malbry.

Prosecutors charged Malbry with a six-count information: five counts of a lewd act on a child (§ 288, subd. (a)) and one count of continuous sexual abuse of a child (§ 288.5). In each count, the information accused Malbry of "penetration of vagina of victim by the penis of said defendant." Each count contained a notice: "Conviction of this offense will require you to register pursuant to Penal Code section 290. Willful failure to register is a crime."

In 1991, Malbry pleaded no contest to one count of lewd act on a child. He checked a box about registering as a sex offender under section 290 as part of his plea.

The prosecution agreed to a six-year prison term and moved to dismiss the other five counts. Malbry was incarcerated and released. He registered annually as a sex offender.

In 2022, represented by counsel, Malbry petitioned to terminate his sex offender registration obligation. His petition asserted he was a tier two offender eligible for termination because he had registered for at least 20 years. (See §§ 290, subd. (d)(2) ["A tier two offender is subject to registration for a minimum of 20 years. A person is a tier two offender if the person was convicted of an offense described in subdivision (c) …. "], 290, subd. (c)(1) [listing § 288, which was Malbry’s offense of conviction].)

We describe this three-tier system later, but first we complete our procedural overview.

The prosecution opposed Malbry’s petition. Prosecutors urged the court to deny Malbry’s petition, even though they agreed convictions under subdivision (a) of section 288, like Malbry’s, indeed were tier two offenses. Malbry thus was "technically eligible" to apply for termination. But they argued section 288 covered a wide range of conduct, and, while some acts could be less serious, other conduct was highly dangerous. The "egregious" facts of Malbry’s case were "more aggravated." Malbry "took advantage of a position of trust as the victim’s ‘daddy.’" Moreover, they argued, a single violation of section 288.7, which was enacted in 2006-after Malbry’s conviction-covered Malbry’s conduct and mandated lifetime registration, which showed Malbry posed a significant danger to the community.

Malbry responded with a legal brief and four pieces of evidence. This evidence was, first, a one-page letter from Malbry’s sister-in-law of 25 years. This relative expressed her and her family’s support for Malbry, whom she described as "an outstanding citizen in a very upscale neighborhood … He is a church going man, [and] he has donated toys and gifts to children [in] hospitals for years with his wife …." A second document was a photocopy of Malbry’s business card for a carpet cleaning company. Third, a one-page letter from a couple living across the street described Malbry as a "fantastic neighbor" and a "model neighbor" who, for 20 years, had taken out their garbage when they needed it and had demonstrated traits of a good neighbor and a good citizen. Fourth, Malbry’s wife, who was not the girl’s mother, wrote a one-page letter confined to reporting how Malbry had helped her pass out supplies to homeless people on two or three days during a year.

Malbry himself offered no declaration or statement.

The trial court’s hearing transcript extended for some 40 pages. There was no live testimony; the hearing consisted entirely of counsel discussing the case with the court.

The court concluded Malbry’s "risk, in my opinion, based on the information that I have in front of me and my own years of handling cases similar to this is that the risk of re-offense is extremely elevated. In part, the registration, having a person register has a beneficial effect in that it hopefully impresses upon the individual that is registered that he is being watched, he is being monitored, and that that in a way has a deterrent effect on the individual … [T]here is some deterrent element to registering … in addition to giving the community notice of a potential risk."

Malbry appealed the court’s denial of his petition.

II

The trial court rightly denied Malbry’s petition because continuing his registration as a sex offender significantly enhances community safety.

A

[1] "The Legislature has long demonstrated a strong resolve to protect children from sexually inappropriate conduct of all kinds, including sexual intercourse and oral copulation. [ .. ] [C]onviction of a sexual contact crime may subject the offender to incarceration, civil penalties, and other consequences. One of the significant consequences includes application of the Sex Offender Registration Act, which was enacted to prevent recidivism of sex offenders and facilitate their surveillance by police." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 874, 183 Cal.Rptr.3d 96, 341 P.3d 1075 (Johnson), citation and footnote omitted.)

In 1947, California became the first state to require sex offenders to register with law enforcement. (Off. of the Atty. Gen., California Sex Offender Registry (2024) State of Cal. Dept. of J. (as of July 23, 2024), archived at https://perma.cc/CX3 C-FHYW.) As originally enacted, the statute created a lifelong obligation to register annually. (Johnson, supra, 60 Cal.4th at p. 877, 183 Cal.Rptr.3d 96, 341 P.3d 1075.)

[2] A central goal of sex offender registration is to prevent recidivism in sex offenders. This serves a "vital public purpose by compelling registration of many serious and violent sex offenders who require continued public surveillance." (Johnson, supra, 60 Cal.4th at p. 877, 183 Cal.Rptr.3d 96, 341 P.3d 1075.)

[3] Children in particular "require paramount protection" from sex offenders. (Johnson, supra, 60 Cal.4th at p. 877, 183 Cal.Rptr.3d 96, 341 P.3d 1075.)

[4] "[M]andating lifetime registration of those who prey on underage victims serves to notify members of the public of the existence and location of sex offenders so they can take protective measures." (Johnson, supra, 60 Cal.4th at p. 877, 183 Cal.Rptr.3d 96, 341 P.3d 1075, quotation marks and citation omitted.)

[5] Registration is not punishment for a crime. It is a nonpunitive civil mechanism to protect the public from danger. (Smith v. Doe (2003) 538 U.S. 84, 93, 96, 105-106, 123 S.Ct. 1140, 155 L.Ed.2d 164; People v. Mosley (2015) 60 Cal.4th 1044, 1050, 185 Cal.Rptr.3d 251, 344 P.3d 788.) "Although the public availability of the information may...