Filed 4/29/14 P. v. Velasco CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B239192
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA094631)
v.
WILLIAM ZAFRA VELASCO, JR.,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County.
Steven D. Blades, Judge. Affirmed.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Janet E.
Neeley and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
*******
Defendant William Zafra Velasco, Jr., pled guilty, without a plea agreement, to
one count of burglary (Pen. Code, § 459, count 1)1, 14 counts of invasion of privacy
(§ 647, subd. (j)(3), counts 2 through 15), and one count of possessing burglary tools
(§ 466, count 17). During sentencing, the trial court exercised its discretion under section
290.006 to require defendant to register as a sex offender for life. Defendant contends
the trial court abused its discretion by applying an improper legal standard when
determining whether to order registration. Defendant further contends that because the
registration requirement includes a residency restriction, it constitutes a punishment that
increases the penalty for his conviction, and that he was not advised and asked to waive
his right to have a jury decide the facts indicating whether he should be required to
register. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), defendant
argues that a jury must find true, beyond a reasonable doubt, the facts supporting
discretionary imposition of the registration requirement. We reject both of defendant’s
claims and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The factual basis of defendant’s plea was evidence received at his preliminary
hearing.
On April 14, 2011, defendant visited a Starbucks in Glendora and placed a hidden
camera in the women’s restroom, pointed at the toilet. The camera looked like a hook,
and was capable of recording and storing video. Over a two-day period, defendant
entered the restroom hourly to replace the camera with an identical one. Defendant took
the used cameras home and downloaded the videos to his computer. Videos of multiple
females were captured, including underage girls. Defendant downloaded approximately
35 videos over the two-day period.
As a Starbucks employee was cleaning the restroom, she discovered a camera
beneath the sink. The employee removed the camera and showed it to her manager, who
called the police.
1 All further undesignated references are to the Penal Code.
2
That same month, the apartment of Jane Doe 1 on the campus of a university in
Glendora was burglarized. She had female roommates, including Jane Does 17 and 18.
Between April 18, 2011, and April 24, 2011, the students were gone for spring break.
Previously, defendant had seen Jane Doe 1 at the apartment complex and thought she was
beautiful. Defendant went to her apartment at night and knocked on the door. When
defendant realized no one was home, he entered the apartment through a window, and
stole Jane Doe 1’s underwear, and her roommates’ underwear as well. In addition to the
underwear, defendant took plastic tampon applicators and Jane Doe 1’s bank statement.
Upon returning home from spring break, Jane Doe 17 noticed her bed was askew,
two window blinds had been ripped off, and that the window screen had been removed.
All three women found that some of their underwear was missing and identified the
underwear and plastic tampon applicators as theirs in court.
Glendora Police Detective Nancy Miranda identified defendant as the person who
repeatedly entered the women’s restroom at Starbucks by reviewing security footage,
defendant’s credit card information tracked through a purchase made there, and by
accessing defendant’s Facebook page. On May 4, 2011, police took defendant into
custody and executed a warrant to search his home. In defendant’s bedroom, police
found several hook cameras, several pieces of women’s underwear, plastic tampon
applicators, a bank statement belonging to Jane Doe 1, and a set of lock picks. The
underwear, tampon applicators and bank statement were together in a box under
defendant’s bed. The underwear was kept in a plastic bag within the box.
Detective Miranda advised defendant of his Miranda2 rights. Defendant waived
his rights and freely spoke with Detective Miranda. Defendant told Detective Miranda he
made the hidden restroom recordings out of sexual frustration. He put the hidden
cameras in the Starbucks restroom to film women relieving themselves, because he had a
“fetish” for watching women use the restroom. Defendant denied putting cameras in any
other locations, and denied sharing the videos.
2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3
Defendant admitted he broke into the victims’ apartment to steal their underwear
to masturbate to, and that he placed the underwear in a plastic bag to preserve the scent.
He took Jane Doe 1’s bank statement so that he could find her picture on the Internet to
look at while he masturbated.
Defendant’s sentencing memorandum included assessments from mental health
professionals who treated defendant, describing defendant’s efforts to receive treatment
for his sexual addiction. It also included 26 letters of support from defendant’s friends
and family. On May 6, 2011, two days after his arrest, defendant visited a clinical
psychologist, Judith Meyers-Abell, who advised him to see a sex therapist. On May 18,
2011, defendant began weekly sessions with William Bercaw, a certified sex addiction
therapist and certified sex therapist, who reported that defendant “diligently embraced his
treatment” and “is highly unlikely to repeat his offenses.” Bercaw noted that defendant
was very remorseful and was disgusted by the crimes he committed. In June,
Dr. Timothy Fong diagnosed defendant with compulsive sexual disorder, major
depressive disorder, and social anxiety disorder. He opined that defendant would not
have committed his offenses if he had received mental health treatment before he
offended. Dr. Fong believed defendant “made significant improvements in his recovery
and overall stability.” In November, defendant completed an intensive 12-day outpatient
program at the Sexual Recovery Institute in Los Angeles. Defendant was observed to be
“engaged and attentive.” He “made significant progress in addressing” his behaviors that
led to treatment. Dr. Nathan Lavid conducted a psychiatric evaluation on December 12,
2011, and concluded that defendant’s “risk of recidivism is low” and that defendant “does
not pose a danger to the community.”
At sentencing, the trial court denied probation and sentenced defendant to four
years in prison on the burglary charge. Defendant’s sentence of six months for each of
the misdemeanor counts was ordered to run concurrently with the burglary count.
Pursuant to section 290.006, the court ordered defendant to lifetime sex offender
registration, stating “there’s no doubt in my mind that these crimes were committed for
the purpose of sexual gratification.” Because defendant placed a camera at Starbucks
4
over a two-day period, which involved 18 or 19 victims, and later committed a burglary,
the court found “this is more than a one time thing. This indicates that this behavior went
on for some period of time.” The trial court acknowledged that defendant had sought
treatment, but found that “there’s a history of mental illness and some significant
problems with sexual gratification and no one can say for sure that these are things that
can be cured. So while the doctors opine that his risk of re offending may be low, that’s
not zero. So I think it’s appropriate for the safety of the community and the safety of
these victims to impose the lifetime registration.”
This timely appeal followed.
DISCUSSION
1. The Trial Court Applied the Proper Legal Standard and Did Not Abuse Its
Discretion in Ordering Lifetime Sex Offender Registration
Section 290.006 gives the trial court discretion to require sex offender registration
for persons convicted of offenses not enumerated in section 290, which requires
mandatory registration for specified offenses. (See also People v. Hofsheier (2006) 37
Cal.4th 1185, 1197 (Hofsheier).) Discretionary registration may be ordered “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.” (§ 290.006.) The
premise behind sex offender registration legislation is that “sex offenders pose a
‘continuing threat to society’. . . .” (Wright v. Superior Court (1997) 15 Cal.4th 521,
527.) As such, one of the purposes of the registration requirement 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.]” (Hofsheier, supra, at p. 1196.) An
alternative purpose for sex offender registration is “to notify members of the public of the
existence and location of sex offenders so they can take protective measures.” (Ibid.)
In Hofsheier, the California Supreme Court clearly stated the process to be applied
by lower courts when exercising discretion to order lifetime sex offender registration
under section 290.006. “[T]he trial court must engage in a two-step process: (1) it must
5
find whether the offense was committed as a result of sexual compulsion or for purposes
of sexual gratification, and state the reasons for these findings; and (2) it must state the
reasons for requiring lifetime registration as a sex offender.” (Hofsheier, supra, 37
Cal.4th at p. 1197.)
“By requiring a separate statement of reasons for requiring registration even if the
trial court finds the offense was committed as a result of sexual compulsion or for
purposes of sexual gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.” (Hofsheier, supra, 37
Cal.4th at p. 1197.) In exercising its discretion under the second prong of the Hofsheier
analysis, the trial court should “consider all relevant information available to it at the time
it makes its decision.” (People v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved
on other grounds by People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4.) One
relevant inquiry is whether defendant is likely to reoffend in the future. (People v.
Garcia, at p. 485 [“information regarding the defendant’s behavior since the time of his
original sentencing certainly is relevant to the determination as to the likelihood he will
reoffend and the necessity for registration”]; see also People v. Thompson (2009) 177
Cal.App.4th 1424, 1431.)
Defendant does not contend the trial court erred in finding that his crimes were
committed for the purpose of sexual gratification. However, defendant complains the
trial court abused its discretion in ordering defendant to register as a sex offender because
it applied a “zero risk” standard to explain its reasons for ordering registration under the
second prong of the Hofsheier analysis. Alternatively, defendant argues the trial court
abused its discretion under the proper standard because it did not find that defendant was
likely to reoffend in the future. We find the trial court applied the proper standard, and
did not abuse its discretion.
We review the trial court’s ruling for an abuse of discretion. (See Lewis v.
Superior Court (2008) 169 Cal.App.4th 70, 79 (Lewis).) A trial court abuses its
discretion if it applies an incorrect legal standard when making its decision. (People v.
Knoller (2007) 41 Cal.4th 139, 156.) If the trial court applies the correct legal standard,
6
“[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.”
[Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The trial
court’s ruling will be affirmed unless it is “arbitrary, capricious or patently absurd.”
(People v. Jordan (1986) 42 Cal.3d 308, 316.)
In explaining its reasons for ordering registration, the trial court noted that
defendant did not simply commit one offense; his behavior continued “for some period of
time” and involved numerous victims. Defendant recorded a number of females in the
restroom over a period of two days, downloading approximately 35 videos onto his
computer. About a week later, defendant broke into an apartment to steal women’s
underwear and tampon applicators. Defendant was diagnosed with mental illnesses that
may compromise his ability to refrain from reoffending. The trial court explained that in
weighing all of the above information, it seemed appropriate for the “safety of the
community” and “safety of these victims” to impose lifetime registration. The trial court
also noted that “while the doctors opine on the risk of reoffending may be low, that’s not
zero.”
We disagree with the defendant’s and the dissent’s characterization of the standard
applied by the trial court as “zero risk,” as it ignores all of the other statements made by
the court on the record. The trial court’s statement was made in the course of explaining
at some length the court’s reasons for ordering lifetime registration. We understand the
court’s comments to mean that although some doctors had opined the risk of recidivism
was low, defendant nonetheless had been diagnosed with multiple, serious mental
illnesses, and there remained a risk of reoffending.
Moreover, defendant’s reliance on Lewis, supra, 169 Cal.App.4th 70, for the
proposition that the trial court was required to find he was likely to reoffend in the future,
is misplaced. Lewis does not hold that section 290.006 requires some specific quantum
of risk of reoffending. Rather, the lifetime registration requirement there was deemed
7
improper because there was absolutely no evidence in the record indicating that the
defendant would commit another sexual offense in the future. (Lewis, at p. 79.)3
Here, there is ample evidence that defendant poses a risk of reoffending.
Defendant’s crimes had already escalated when he burglarized an apartment to steal items
for his sexual gratification. Although defendant was receiving treatment after his arrest,
he still suffered from the mental health problems that led him to offend in the first place,
and that required continuing treatment. The trial court weighed the evidence before it
and determined that, notwithstanding the significant improvements defendant had made
in therapy, defendant’s mental illness compromised his ability to refrain from
reoffending, and therefore defendant posed a significant enough risk to the safety of the
community that registration was warranted. The trial court properly relied on defendant’s
repeated conduct, severe sexual gratification issues, and history of mental illness when
imposing the registration requirement. The trial court was not required to accept as
true the experts’ opinions that defendant would be able to control his compulsive sexual
behavior with ongoing treatment and monitoring. (Hofsheier, supra, 37 Cal.4th at p.
1197; see also People v. Garcia, supra, 161 Cal.App.4th at p. 483.) Accordingly, we find
no abuse of discretion on this record.
3 In Lewis, the defendant was originally ordered to register under the mandatory
provisions of section 290 when he was convicted in 1987 of two counts of oral copulation
with a minor. In 2006, Hofsheier was decided, and it found mandatory registration under
section 290 for voluntary oral copulation with a minor violated equal protection.
Defendant filed a motion in the trial court to set aside the order requiring his registration
under section 290 under Hofsheier. He also argued that discretionary registration under
section 290.006 was not warranted because he had not reoffended in the 20 years since
his conviction. (Lewis, supra, 169 Cal.App.4th at pp. 73-75.) The trial court denied his
motion, finding registration was appropriate under section 290.006. The appellate court
reversed, concluding there was nothing in the record to suggest the defendant would
reoffend even in 1987, when he had originally been sentenced under section 290. The
court also found that “in the 20 plus years since his conviction under section 288a,
subdivision (b)(1), Lewis has committed no offenses requiring him to register as a sex
offender and no offenses similar to those requiring registration.” (Lewis, at p. 79.)
8
2. Defendant Did Not Have a Right to a Jury Trial of the Facts Underlying the
Trial Court’s Discretionary Registration Decision
Defendant contends his right to a jury trial was violated when the trial court
determined the truth of the facts underlying its order requiring him to register as a sex
offender. We disagree.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S.
at p. 490.) The California Supreme Court previously held Apprendi does not apply to sex
offender registration because it “is not considered a form of punishment under the state or
federal Constitution.” (Hofsheier, supra, 37 Cal.4th at p. 1197; see also People v.
Picklesimer, supra, 48 Cal.4th at pp. 343-344 [Apprendi does not apply to a discretionary
determination to require sex offender registration under section 290.006].)
However, since these cases were decided, Jessica’s Law was passed, which
amended our Penal Statutes relating to sex offenders.4 One of these amendments
included the addition of a residency restriction for registered sex offenders. All
registered sex offenders in California are now barred from residing within 2,000 feet of a
4 “[V]oters enacted Proposition 83, The Sexual Predator Punishment and Control
Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006); hereafter
Proposition 83 or Jessica’s Law). Proposition 83 was a wide-ranging initiative intended
to ‘help Californians better protect themselves, their children, and their communities’
[citation] from problems posed by sex offenders by ‘strengthen[ing] and improv[ing] the
laws that punish and control sexual offenders’ [citation]. [¶] Among other revisions to
the Penal Code, Proposition 83 amended section 3003.5, a statute setting forth restrictions
on where certain sex offenders subject to the lifetime registration requirement of section
290 may reside. New subdivision (b), added to section 3003.5, provides:
‘Notwithstanding any other provision of law, it is unlawful for any person for whom
registration is required pursuant to Section 290 to reside within 2000 feet of any public or
private school, or park where children regularly gather.’ (§ 3003.5, subd. (b) . . . .) The
new residency restrictions took effect on November 8, 2006, the effective date of
Proposition 83.” (In re E.J. (2010) 47 Cal.4th 1258, 1263, fns. omitted.)
9
school or park where children gather. (§ 3003.5, subd. (b).) In People v. Mosley (review
granted Jan. 26, 2011, S187965), the Fourth District Court of Appeal concluded that the
residency restriction constitutes punishment and that Apprendi now mandates a jury trial
on the facts supporting the discretionary imposition of sex offender registration. Our
Supreme Court granted review of the Mosley decision, and will soon consider whether
the residency restriction is an increase in penalty implicating the right to a jury trial.
Respondent contends defendant forfeited his Apprendi claim by failing to raise it
in the trial court. (See People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.)
However, a defendant’s failure to object below does not preclude the claim that he was
denied the constitutional right to a jury trial on appeal. (People v. French (2008) 43
Cal.4th 36, 46; see also Hale v. Morgan (1978) 22 Cal.3d 388, 394 [court may review
constitutional errors without objection].) Moreover, at the time defendant was sentenced,
Mosley was pending before our Supreme Court, and therefore the law was (and still is)
unsettled. A change in the law may excuse counsel’s failure to object at trial. (People v.
Black (2007) 41 Cal.4th 799, 811 [we consider the “ ‘state of the law as it would have
appeared to competent and knowledgeable counsel at the time of the trial’ ”].) Because
the application of Apprendi to section 290.006 was unsettled at the time defendant was
sentenced, we find that a competent attorney would not necessarily have made an
objection on this basis, and in any event, that we have discretion to review defendant’s
constitutional claim. Therefore, the issue has not been forfeited.
Here, defendant admits his crimes were committed for the purpose of sexual
gratification,5 but he contends the jury was required to make “the factual findings
supporting the court’s discretionary decision to impose registration” under the second
5 Defendant admitted he made the hidden restroom recordings at the Starbucks out
of sexual frustration and that this was a “fetish” of his. In addition, defendant admitted
he stole the underwear from the apartment so that he could later use them for
masturbation. Further, defendant admits that even if it was error to not try these facts to a
jury, any error would necessarily be harmless. We agree. There is extensive evidence his
crimes were committed for the purpose of sexual gratification.
10
prong of the Hofsheier analysis. Specifically, defendant argues a jury was required to
decide the likelihood he would reoffend. Not so.
The second prong of Hofsheier only requires “[the court to] state the reasons for
requiring lifetime registration as a sex offender.” (Hofsheier, supra, 37 Cal.4th at
p. 1197.) Ultimately, “the statute gives the trial court discretion to weigh the reasons for
and against registration in each particular case.” (Ibid.) In our view, this determination is
not subject to Apprendi’s requirements. “[T]he scope of the constitutional jury right must
be informed by the historical role of the jury at common law.” (Oregon v. Ice (2009) 555
U.S. 160, 170; id. at p. 168 [Apprendi does not apply to the decision to impose
consecutive sentences on a defendant convicted of multiple offenses, because the
“historical record demonstrates that the jury played no role in the decision to impose
sentences consecutively or concurrently. Rather, the choice rested exclusively with the
judge.”].) A decision about whether to order registration is a determination based upon
judicial findings about the nature of the offense and defendant’s character. (See
Hofsheier, supra, 37 Cal.4th at p. 1197.) The assignment to a judge of such a
determination does not “implicate[] Apprendi’s core concern: a legislative attempt to
‘remove from the [province of the] jury’ the determination of facts that warrant
punishment for a specific statutory offense.” (Oregon v. Ice, at p. 170.) “[A]s
Apprendi’s core concern is inapplicable to the issue at hand, so too is the Sixth
Amendment’s restriction on judge-found facts.” (Ibid.)
Moreover, we disagree with Mosley’s reasoning because it is inconsistent with
other Supreme Court authority. In In re E.J., supra, 47 Cal.4th at page 1278, a group of
parolees who had been convicted before enactment of Jessica’s Law, but paroled after it
became effective, claimed applying the residency restriction to them constituted an
impermissible retroactive application of the statute and violated the prohibition on ex post
facto laws. (In re E.J., at p. 1264.) Our Supreme Court concluded that because the new
residency restrictions are not punitive, they do not trigger Apprendi. (In re E.J., at
p. 1278 [“Although [petitioners] fall under the new restrictions by virtue of their status as
registered sex offenders who have been released on parole, they are not being
11
‘additionally punished’ for commission of the original sex offenses that gave rise to that
status. Rather, petitioners are being subjected to new restrictions on where they may
reside while on their current parole – restrictions clearly intended to operate and protect
the public in the present, not to serve as additional punishment for past crimes.”]; see also
People v. Picklesimer, supra, 48 Cal.4th at p. 344 [noting that a hypothetical assuming
Proposition 83’s restrictions constituted punishment would be contradicted by the
reasoning of In re E.J.].) This reasoning is equally applicable under the present
circumstances. Therefore, we are not persuaded that defendant’s right to a jury trial was
violated.
DISPOSITION
The judgment is affirmed.
GRIMES, J.
I CONCUR:
BIGELOW, P. J.
12
Flier, J., Dissenting
Because I conclude the trial court abused its discretion in ordering Velasco to
register for life as a sex offender I respectfully dissent.
A. Background
1. The Offenses
Velasco pled guilty to 14 counts of disorderly conduct, one count of burglary, and
one count of possession of a burglar’s tools. It was alleged that the disorderly conduct
occurred on April 14 and April 15, 2011, that the burglary occurred April 18, 2011, and
that the possession of burglar’s tools occurred May 4, 2011. The majority opinion
comprehensively describes the facts underlying the convictions.
The court sentenced Velasco to four years in state prison for the burglary with all
other terms to run concurrently. The court exercised its discretion to order Velasco to
register as a sex offender pursuant to Penal Code section 290.006.1
At the time of his offenses Velasco was a 25-year-old graduate student with no
criminal history. Velasco sought mental health treatment immediately upon his release
on bail. Velasco clearly had the support of his family and friends as 26 of Velasco’s
relatives and friends wrote letters on his behalf. The letters uniformly described
Velasco’s conduct underlying his convictions as an aberration.
2. Opinions of Velasco’s Likelihood to Reoffend
Velasco’s psychologist Bill Bercaw, who held a doctorate in clinical psychology
and was a certified sex addiction therapist, described Velasco as having depressive
symptoms and isolating himself from others prior to the crimes. Bercaw described
1 Undesignated statutory citations are to the Penal Code.
1
Velasco’s progress in treatment as follows: Velasco “diligently embraced his treatment
as an opportunity to reorder his life and to atone for his transgressions. He was very
aggressive with his treatment, completing demanding homework assignments week after
week and doing everything I asked him to do. Throughout our therapeutic process,
William has struggled mightily with deep feelings of guilt and shame for his offenses.”
“One of the most challenging processes for William therapeutically was overcoming his
isolating tendencies, especially while he was so ashamed of himself. I witnessed William
courageously begin to allow others in, as he developed a support system that has become
very meaningful to him. The combination of his strong motivation for treatment, his
much improved emotional health and his much improved support system allow me to
confidently project ongoing improvement.” Bercaw opined that Velasco was “highly
unlikely to repeat his offenses . . . .”
Velasco’s psychiatrist Dr. Timothy Fong, a clinical professor at the University of
California Los Angeles, treated Velasco since June 2011. Fong was certified in
psychiatry and addiction psychiatry and served as the director of the Impulse Control
Disorders Clinic and the Addiction Medicine Clinic at the University of California Los
Angeles. Fong diagnosed Velasco as suffering from compulsive sexual behavior, major
depressive disorder, and social anxiety disorder. Fong described Velasco’s progress as
follows: “William has made significant improvements in his recovery and overall
stability. He has been compliant with all of the treatment recommendations that I have
made, and he remains highly motivated to stay active in treatment. He has built a strong
network of support that will increase the likelihood of him continuing to improve.”
Velasco was assessed to be “a low risk of recidivism, and is believed not to be a danger
to the community.” “In the six months that I have worked with him, William has made
notable improvements. He is now aware of the signs and symptoms of compulsive
sexual behaviors, depression and anxiety and is able to identify triggers that formerly led
him to acting out. He has a much stronger and deeper understanding of his disease and
has been working on developing coping skills and on behavioral techniques to keep his
symptoms from expanding.”
2
According to Fong, Velasco’s “motivation to continue to do the work to stay in
recovery is very high. He has expressed significant remorse and guilt about his actions
and has accepted responsibility for what he’s done. This, too, is another strong
prognostic sign that he understands and accepts his diagnosis.” Fong opined that “had
William been able to enter treatment before this offense, the likelihood that this offense
would have occurred would have been essentially zero. His behaviors, in my opinion,
were a direct result of untreated symptoms of compulsive sexual behavior. These
symptoms can be controlled very well with ongoing treatment and monitoring (which he
currently has in place).”
Dr. Nathan Lavid, a forensic psychiatrist opined that Velasco has “responded well
to treatment . . . . In addition, Mr. Velasco has good insight and good judgment regarding
the continued need for treatment.” Dr. Lavid opined that Velasco’s “risk of recidivism is
low and he does not pose a danger to the community.” Velasco did not show factors
indicative of risk of violence “such as lack of insight, negative attitudes, active symptoms
of major mental illness, impulsivity, and being unresponsive to treatment.” Dr. Lavid
opined that at the time of the interview Velasco’s sexual addiction was in remission.
In addition to seeing Drs. Bercaw, Fong, and Lavid, Velasco completed an
intensive outpatient program at the Sexual Recovery Institute. While at the institute,
Velasco “was thoroughly compliant, performed all assignments and was actively engaged
during individual, family and group psychotherapy sessions.” Velasco “initiated
insightful comments without prompting.” He also followed this program by consistently
attending 12-step support groups.
It is significant that there was no evidence contradicting the opinions of Drs.
Bercaw, Fong and Lavid. No evidence was presented supporting the inference that at the
time of sentencing Velasco was likely to reoffend.
3. Sentencing Hearing
The court ordered Velasco “to register for the rest of his life as a sex
offender . . . .” “This is pursuant to . . . section 290.006 where I can impose the 290
registration if I find that the crimes were clearly committed for the purposes of sexual
3
gratification. I find that under this case the first degree burglary was committed primarily
for that purpose . . . . [¶] The crime placing the camera in the Starbucks to watch these
women and children females use the bathroom I think were clearly designed for sexual
gratification . . . .”
The court later reaffirmed that it imposed the registration requirement because the
crimes were committed for sexual gratification. The court explained: “The reason for
the lifetime registration is that there’s no doubt in my mind that these crimes were
committed for the purpose of sexual gratification, and in looking at a first degree
burglary, which is a serious crime, the defendant entered the apartment of these two
young ladies, or three young ladies, for the primary purpose of stealing their underwear.
Very bizarre in and of itself, but that – and placing the camera in the Starbucks for a
period of time where at least 19 victims were identified, or 18, or perhaps more, this is
more than a one time thing. This indicates that this behavior went on for some period of
time, and I think there was even testimony at the preliminary hearing that . . . the
defendant would utilize a laptop in the lobby of the Starbucks and go to the bathroom to
change a disc or card or something that was connected to the camera. So that and looking
at the defendant’s mental health issues, and his efforts to seek treatment, which I
appreciate on the one hand, but on the other hand there’s a history of mental illness and
some significant problems with sexual gratification and no one can say for sure that these
are things that can be cured. So while the doctors opine that his risk of re offending may
be low, that’s not zero. So I think it’s appropriate for the safety of the community and
safety of these victims to impose the lifetime registration.”
B. Analysis
Section 290.006 provides the court with discretion to impose a lifetime registration
under section 290.2 The purpose of the section 290 registration requirement is to assure
2 Section 290.006 provides: “Any person ordered by any court to register pursuant
to the 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
4
convicted persons are “‘“‘readily available for police surveillance at all times because the
Legislature deemed them likely to commit similar offenses in the future’”’” and “to
notify members of the public of the existence and location of sex offenders so they can
take protective measures.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) When,
as in this case, the court has discretion to impose the registration requirement the court
gratification. The court shall state on the record the reasons for its findings and the
reasons for requiring registration.”
Section 290, subdivision (b) provides: “Every person described in subdivision (c),
for the rest of his or her life while residing in California, or while attending school or
working in California, as described in Sections 290.002 and 290.01, shall be required to
register with the chief of police of the city in which he or she is residing, or the sheriff of
the county if he or she is residing in an unincorporated area or city that has no police
department, and, additionally, with the chief of police of a campus of the University of
California, the California State University, or community college if he or she is residing
upon the campus or in any of its facilities, within five working days of coming into, or
changing his or her residence within, any city, county, or city and county, or campus in
which he or she temporarily resides, and shall be required to register thereafter in
accordance with the Act.”
Mandatory registration is required for “[a]ny person who, since July 1, 1944, has
been or is hereafter convicted in any court in this state or in any federal or military court
of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate,
rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209
committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, subdivision (b) and (c) of Section 236.1, Section 243.4,
paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of
subdivision (a) of Section 262 involving the use of force or violence for which the person
is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section
266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3,
288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section
311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section
653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct
under Section 272, or any felony violation of Section 288.2; any statutory predecessor
that includes all elements of one of the above-mentioned offenses; or any person who
since that date has been or is hereafter convicted of the attempt or conspiracy to commit
any of the above-mentioned offenses.” (§ 290, subd. (c).)
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must “weigh the reasons for and against registration in each particular case.” (Id. at p.
1197.)
As the majority acknowledges, the likelihood of reoffending is the primary
consideration in evaluating whether registration should be ordered. (People v. Thompson
(2009) 177 Cal.App.4th 1424, 1431 [“Most importantly, the trial court must consider the
likelihood defendant will reoffend.”].) “Where registration is discretionary, then, one
consideration before the court must be the likelihood that the defendant will reoffend.”
(People v. Garcia (2008) 161 Cal.App.4th 475, 485, disapproved on other grounds in
People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4.) Thus, in Garcia, the case was
remanded for the trial court to consider “the evidence defendant presented as to his good
behavior and rehabilitation” in order to determine whether the defendant was likely to
reoffend. (Garcia, at p. 485.)
Here, both the trial court and the majority ignore the evidence Velasco presented
as to his good behavior and rehabilitation and instead focus only on defendant’s crimes,
emphasizing that they included a burglary to steal items for sexual gratification. The
narrow focus on Velasco’s conduct April 14 thru April 18, 2011, ignores the critical
question -- whether by the time of sentencing Velasco had rehabilitated himself to such
an extent that he was not likely to reoffend. In evaluating whether lifetime registration
was warranted, the court should have considered the evidence subsequent to Velasco’s
convictions. (People v. Garcia, supra, 161 Cal.App.4th at p. 483 [trial court erred in
concluding it could not consider circumstances subsequent to the defendant’s
convictions].)
Once the relevant evidence is considered, the only available conclusion is that
Velasco was not likely to reoffend. The undisputed evidence showed that he was a low
risk of offending. Every physician and psychologist who evaluated Velasco determined
that he posed a low risk of recidivism. No contrary evidence was introduced and no
evidence supported the trial court’s conclusion that defendant posed a risk of reoffending.
Although the trial court was not required to accept the experts’ opinions, it did not
question their credibility. Instead, it simply determined that “while the doctors opine that
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his risk of re offending may be low, that’s not zero.” The “not zero” standard, however,
is not supported by any case law. Its application effectively would turn the discretionary
registration requirement into a mandatory one because no defendant would be able to
show a zero percent chance of recidivism. Because the undisputed evidence showed that
at the time of sentencing defendant was not likely to commit a sex offense, I would
reverse the lifetime registration requirement. (See Lewis v. Superior Court (2008) 169
Cal.App.4th 70, 79 [order the court to relieve the defendant of any sex offender
registration requirement where “nothing in the record” supported a finding that he was
likely to commit a sex offense].)
FLIER, J.
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