OPINION
Defendant Guadalupe Contreras, Jr. was charged with rape and forcible oral copulation, but was convicted by a jury only of misdemeanor battery (Pen. Code, § 242)
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as a lesser included offense of the rape charge. The trial court placed him on probation and exercised its discretion to require him to register as a sex offender, finding the battery was committed for the purpose of sexual gratification. His opening brief raised four issues on appeal related to the registration requirement, but he withdrew one of the issues in his reply brief. There are thus three issues in this appeal.
Contreras first claims the trial court abused its discretion by failing to state sufficient reasons for requiring him to register as a sex offender under section 290.006. Second, he contends the trial court abused its discretion in ordering registration because there was “no evidence” he was likely to reoffend. And third, he argues the court erred in relying on the results of his pre-sentencing sex offender risk assessment in ordering registration.
We reject all three claims and affirm.
STATEMENT OF THE CASE
The Madera County District Attorney filed an information charging Contreras with rape (§ 261, subd. (a)(2); count 1) and forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2). A jury found him not guilty as charged in count one, but guilty of the lesser included offense of misdemeanor battery. The jury also acquitted Contreras on count 2.
On March 22, 2019, the trial court sentenced Contreras to three years probation with one day in local custody, with credit for one day served. The trial court also ordered him to register as a sex offender.
STATEMENT OF FACTS
I. The offense
On October 11, 2014, J., a woman, went to a wedding and drank alcohol. After the wedding, she asked her best friend, Kacie, to pick her up and go to a bar. Kacie instead invited J. to Kacies friend Brittanys house in the Madera Ranchos.
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J. accepted the invitation and Kacie picked her up.
Brittany lived with Contreras, her fiancé. When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras. Contreras, Brittany, and Kacie had about four or five shots and J. had about two. About 30 to 45 minutes later, J. went to the bathroom and vomited, and Brittany and Kacie went into the bathroom to help her. Brittany went to her and Contrerass bedroom and got a shirt and sweatpants for J. to change into, J. changed into the new clothes, and J. got into Brittany and Contrerass bed.
Brittany, Kacie, and Contreras sat on the back patio and Brittany fell asleep. Contreras told Kacie something like, “Im going to get that bitch out of my bed,” and went into the house.
J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her. She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis. J. opened her eyes and saw it was Contreras. J. said “no” and tried pulling her hand away. Contreras placed his free hand on the front of J.s neck. J. described the pressure on her throat as a light clasping that nevertheless felt “awful” and made her freeze from fear. With one hand on her throat, Contreras placed his other hand on her abdomen and pulled her body toward him. J. again said “no.” With his body on top of hers, Contreras inserted his penis into J.s vagina. J. told him to stop. After several minutes of thrusting,
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Contreras removed his penis and forced J.s head down toward his penis and inserted it into her mouth. J. was crying as Contreras pushed her head toward his penis. She did not remember how long his penis was in her mouth, but said she was scared. Contreras took his penis out of her mouth when Kacie entered the room and yelled, “What the fuck?” Contreras did not ejaculate.
Kacie testified that after Contreras left the patio and went inside, she remained on the patio waiting for Contreras to return until she started to hear both J. and Contreras moaning; the moaning sounded pleasurable. She went into the house, opened the bedroom door and yelled, “What the fuck are you guys doing?” Contreras said, “Fuck,” and went to the bathroom. J. hid under the covers and would not let them go as Kacie tried to pull them off of her.
J. eventually got out of the bed and ran out of the house wearing only the t-shirt Brittany had given her; she was not wearing pants. Kacie followed her into the street. J. was crying and saying, “He made me. He made me. I didnt want to. He made me.” Kacie put J. in a bush and went in the house to get J.s things and to call them a ride.
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J. was gone when Kacie returned. J. walked to her mothers house two miles away. She told her mother what happened and her mother took her to the emergency room, and law enforcement was contacted.
II. Sentencing
Sentencing was scheduled for January 11, 2019.
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Ahead of the sentencing hearing, the People and Contreras submitted briefing on the registration issue. The People argued in favor of registration, while Contreras argued the trial court would abuse its discretion by ordering registration. On January 11, the court continued sentencing to March 4 and referred the matter to the probation department to conduct an assessment using the State-Authorized Risk Assessment Tool for Sex Offenders (“SARATSO”).
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On February 21, the probation officer submitted her report. The report stated the probation officer assessed Contreras using the STATIC-99R risk assessment scale and the SARATSO for male sex offenders, which measures the statistical risk a defendant will commit further sexual offenses based on characteristics of his personal history and past offenses as they compare with those of known criminal sexual recidivists. (§ 290.04, subd. (b)(1); see People v. Williams (2003) 31 Cal.4th 757, 762, fn. 3, 3 Cal.Rptr.3d 684, 74 P.3d 779 [describing purpose of the STATIC-99].)
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The report stated the STATIC-99R “has been shown to be a moderate predictor of sexual reoffense potential.” Contrerass score of “4” placed him in the “above average risk” category—just one level below the highest category, “well above average risk”—meaning Contreras had an above average risk of being charged or convicted of another sexual offense within five years of being released on probation.
Sentencing was continued again at the defenses request and held on March 22. The court noted at the outset of the hearing it had received the probation officers supplemental report, which included the results of the STATIC-99R. The court invited argument from the parties. The People argued sex offender registration was appropriate because the evidence showed the battery was committed for a sexual purpose, and also argued the trial testimony and Static-99R results showed Contreras had an above average risk of reoffending.
Contrerass counsel argued that registration was inappropriate and unnecessary, and that the Static-99R was irrelevant in this case because Contreras was not convicted of a sexual offense, only a simple battery. Counsel further stated that the acquittals on the principal offenses (i.e., the rape and oral copulation charges) made it unclear which act the battery conviction was based on, but said that it was the defenses view that conviction had nothing to do with “the grabbing of the penis.” Counsel also noted that Contreras had no history of illegal sexual activity and that the offense had occurred almost five years ago by that time. Counsel further argued Contreras should be placed on summary probation, not formal probation, because he had only been convicted of a misdemeanor. As to the term of probation, counsel asked that the court place Contreras on one day of summary probation and terminate probation.
After hearing brief additional comments from the People, the court proceeded to state its view on the registration issue. The court noted it had “read all the submissions” and considered the report on Contrerass SARATSO results. The court stated it disagreed with the defenses position that administering the Static-99R was inappropriate in this case.
The court explained:
“Having been present during the trial in this matter, I understand that we have one misdemeanor count wherein he was found guilty. However, the acts charged were related—well, based upon the evidence brought forth in the trial, it appears that the acts of the defendant were for purposes of sexual gratification.
“I am not taking the position that the defendant has a compulsion. I am not sure what that would mean in this particular circumstance. But I do find that the acts of the defendant were for purposes of sexual gratification.
“With regard, generally, to the issue concerning supervision, I believe supervision in this matter is appropriate for Mr. Contreras. It is a good thing that he has not reoffended in the recent past, but I think continued supervision with the terms and conditions of probation are absolutely appropriate for this particular defendant.
“And I will order that he also register under [section] 290 as the acts here were for purposes of sexual gratification.”
After discussing other sentencing issues with counsel, the court stated:
“The Court has read and considered the report of the probation officer. I have had the input from both the People and the Defense and their written submissions in these matters. I have read and consider all of those as well.
“The intended judgment—well, this comes before the Court on a conviction for—following trial by jury, as to Count 1, Penal Code Section 242, misdemeanor battery. This arose out [of] circumstances where the defendant got into bed with a female and there was unconsented touching at that time.
“So the intended judgment is as follows[.]”
The court proceeded to explain its intended judgment, which included that Contreras be placed on three years probation under conditions the court stated on the record. Contrerass counsel objected to several conditions, and the court made multiple modifications based on these objections. The court also stated, “As mentioned earlier, there shall be registration under Penal Code Section 290.” After stating the fines and fees Contreras would have to pay and noting his one day of custody credit, the following colloquy took place:
“That concludes the intended judgment.
“Comment by the People?
“[THE PROSECUTOR]: Peoples only comment is that the deputy serve the defendant with the [criminal protective order] in court. And otherwise submitted.
“THE COURT: Thank you very much.
“Comment by the defense?
“[DEFENSE COUNSEL]: Just to be clear, we had objected to the certain conditions of probation. I didnt specifically object to the Court ordering as a condition of probation that he register pursuant to [section] 290, and I dont want the record to reflect that somehow we acquiesced in that or otherwise gave up our position on the 290. Although, you know—
“THE COURT: Duly noted. That was opposed before I recited the judgment. I dont take it that the recitation of the judgment changed your position.
“[DEFENSE COUNSEL]: All right. Thank you.
“THE COURT: All right. Thank you very much. So the defendant will be served with the [criminal protective order].
“Also, I have received the Firearms Relinquishment Report indicating that the defendant has appropriately filled out the forms. And Probation has done their investigation and found no reportable firearms. I will so find and so order.
“[THE PROSECUTOR]: Does the Court make its intended judgment its final judgment?
“THE COURT: Oh. Thank you. The Court so orders. The Court makes its intended judgment its final judgment in the matter.
“All right. Thank you, Mr. Contreras.
“Thank you, Counsel.
“[THE PROSECUTOR]: Thank you, Your Honor.”
The hearing was concluded.
DISCUSSION
I. Adequacy of statement of reasons for requiring sex offender registration **
II. Evidence of likelihood to reoffend
Contreras next contends the trial court abused its discretion in requiring registration because there was “no evidence” he was likely to reoffend. This contention fails because section 290.006 does not require an explicit finding regarding the defendants risk of reoffending. The court is only required to find that the defendant committed the offense as a result of a sexual compulsion or for the purposes of sexual gratification. (§ 290.006.) The court here found Contreras committed the battery for the purpose of sexual gratification, and Contreras does not challenge the sufficiency of the evidence supporting that finding.
We recognize the California Supreme Courts enunciation of section 290s dual purpose: “ ‘ “ ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ ” ’ [Citations.] In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. (See Stats. 1996, ch. 908, § 1, subd. (b), p. 5105.)” (People v. Hofsheier (2006) 37 Cal.4th 1185 at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) But our Supreme Court has never imposed an extra-statutory requirement that courts make an explicit finding regarding an offenders potential to reoffend when ordering discretionary registration.
Contreras quotes from Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 86 Cal.Rptr.3d 565 (Lewis), in which the Court of Appeal held: “Since the purpose of sex offender registration is to keep track of persons likely to reoffend, 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. (Cf. People v. Garcia (2008) 161 Cal.App.4th 475, 484—485 [74 Cal.Rptr.3d 681]․)” (Id. at p. 78, 86 Cal.Rptr.3d 565.) We disapprove of this statement in Lewis to the extent it can be interpreted as creating an extra-statutory requirement that sentencing courts make an explicit finding that the defendant is likely to reoffend before ordering discretionary registration under section 290.006. As already mentioned, courts must consider all relevant information, including “the likelihood that the defendant will reoffend,” when determining whether to require registration under section 290.006. (Garcia, supra, 161 Cal.App.4th 475 at pp. 483, 485, 74 Cal.Rptr.3d 681; People v. Thompson (2009) 177 Cal.App.4th 1424 at p. 1431, 100 Cal.Rptr.3d 57.) But, again, section 290.006 does not expressly require the court to make a specific finding as to whether a defendant is likely to commit one of the offenses listed in section 290, subdivision (c).
In any event, there was indeed evidence Contreras was likely to reoffend. He scored a “4” on the STATIC-99R, which placed him in the “above average risk” category for reoffending. This evidence belies his claim there was “no evidence” he was likely to reoffend.
III.–IV.***
DISPOSITION
The judgment is affirmed.
FOOTNOTES
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. Undesignated statutory references are to the Penal Code.
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. Everyone except Contreras will be referred to by an initial or first name to protect identities.J. had met Brittany two or three times before through Kacie.
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. J. testified she could not remember how long the thrusting lasted. However, during cross-examination, defense counsel asked J. if it would be accurate to say that it lasted several minutes based on one of J.s previous statements that is how long it lasted, and J. responded, “I think so.”
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. Brittany testified that “Kacie does not drink and drive ․”
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. Subsequent references to dates are to dates in 2019.
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. Section 1203, subdivision (d), provides, in misdemeanor cases where the probation report recommends that registration be ordered in the courts discretion under section 290.006, that “the court shall refer the matter to the probation officer for the purpose of obtaining a report on the results of the State–Authorized Risk Assessment Tool for Sex Offenders administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable, which the court shall consider.”
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. “ ‘The STATIC-99R is a revised version of the STATIC-99 that takes into account the age of a sexual offender based on statistics showing the risk of sexual reoffense decreases as the offender ages.’ ” (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1067, fn. 6, 189 Cal.Rptr.3d 886.)
FOOTNOTE
. See footnote *, ante.
FOOTNOTE
. See footnote *, ante.
SNAUFFER, J.
WE CONCUR:
HILL, P. J.
SMITH, J.