 

Filed 10/1/14  DiMacali v. People CA4/1 
 
                               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 
                                                     
    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 This opinion has not been certified for publication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.
 
                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                               STATE OF CALIFORNIA
 
 
 
 
    RANDOLPH DIMACALI,                                                   D065255
                                                                          
                                                                          
             Plaintiff and Appellant,                                     
                                                                          
             v.                                                          (Super. Ct. Nos. MCR13263,
                                                                                          SCE212080)
    THE PEOPLE,
 
             Defendant and Respondent.
 
 
 
 
             APPEAL from an order of the Superior Court of San Diego County, Amalia L.

    Meza, Judge. Affirmed.

             Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender,

    Vic Eriksen and Matt Braner, Deputy Public Defenders, for Plaintiff and Appellant.

             Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

    Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Defendant and

    Respondent.

             Randolph Dimacali pleaded guilty to two counts of oral copulation with a minor.

    The court sentenced him to supervised probation, subject to 365 days of local


 
 




    incarceration. It also imposed a mandatory requirement to register as a sex offender for

    life under Penal Code 1 section 290. Years later, Dimacali filed a petition for writ of

    mandate seeking relief from the mandatory registration requirement. The court agreed

    that, under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), Dimacali was not

    subject to mandatory registration. However, pursuant to its discretionary powers under

    section 290.006, the court ruled Dimacali should still register as a sex offender for life.

           On appeal, Dimacali contends that: (1) postconviction discretionary registration

    violates the Sixth Amendment, (2) the court exceeded its jurisdiction by imposing the

    discretionary registration requirement after Dimacali completed probation, (3) the court

    did not comply with the two-step Hofsheier inquiry, and (4) the court improperly ignored

    material evidence submitted to it. We affirm the order.

                       FACTUAL AND PROCEDURAL BACKGROUND
 
           In the late 1990s, Randolph Dimacali, then in his 30's, committed a series of

    improper sexual acts with multiple teenage boys. He took advantage of his position as a

    water polo coach to gain access to his victims, whom he lured with drugs and alcohol.

    John Doe 1 was a member of Dimacali's water polo team. Dimacali orally copulated him

    on two occasions between October 1996 and March 1997, when Doe 1 was 16 years old.

           On the first occasion, Dimacali asked Doe 1 to help him clean at an El Cajon

    dentist's office where Dimacali worked as a part-time janitor. Dimacali offered Doe 1

    some marijuana and, after they smoked, offered to massage Doe 1's injured shoulder.
 
 
 
 
    1      All further statutory references are to the Penal Code unless otherwise specified.
                                                  2
 




    Dimacali rubbed Doe 1's shoulder, worked his way down Doe 1's back, and eventually

    pushed down Doe 1's shorts so he could massage his buttocks. Next, Dimacali removed

    Doe 1's shorts and asked Doe 1 to roll over. Dimacali then orally copulated Doe 1 until

    Doe 1 excused himself and left.

          On the second occasion, three to four months later, Doe 1 stopped by Dimacali's

    home intending to drop something off. Dimacali offered Doe 1 both marijuana and beer.

    After smoking and drinking, Doe 1 helped carry some papers upstairs to Dimacali's

    office. Dimacali led Doe 1 into his bedroom to watch television before trying to seduce

    Doe 1, attempting to kiss him and apparently dismissing Doe 1's repeated efforts to

    excuse himself. Dimacali then orally copulated Doe 1. Following these two incidents,

    Dimacali continued to proposition Doe 1.

          Like John Doe 1, John Doe 2 was a member of Dimacali's water polo team. In

    January 1997, when Doe 2 was 14 years old, Dimacali invited Doe 2 and two other team

    members to spend the night at Dimacali's home before the group went surfing the next

    day. Dimacali provided both marijuana and alcohol. The group drank excessively and,

    at one point, Dimacali turned on a pornographic television channel. At the end of the

    night, Dimacali asked Doe 2 to sleep upstairs in his bed. Dimacali claimed he wanted to

    keep an eye on Doe 2, as it was his first time consuming so much alcohol. The other

    boys slept downstairs.

          When Doe 2 got in the bed, Dimacali again turned on the pornographic television

    channel. He rubbed Doe 2's shoulders, worked his way down Doe 2's back and

    eventually began to massage Doe 2's buttocks. Dimacali then pushed down Doe 2's
                                                3
 




    shorts, rolled Doe 2 on to his back, manually masturbated him, and briefly orally

    copulated him.

           From 1992 to 1996, when John Doe 3 was between 10 and 14 years old, Dimacali

    lived with Doe 3 and his family. Doe 3 disliked living with him, because Dimacali

    tended to enter the bathroom while Doe 3 was showering, usually under the pretense that

    he had to discuss something important.

           After Dimacali moved out, Doe 3 went to Dimacali's house to pick up water polo

    equipment. Doe 3 sat on the floor to watch television. Dimacali sat on the bed behind

    him, turned on a pornographic movie, and asked Doe 3 if he wanted to masturbate. Doe

    3 declined and Dimacali responded, "Well, I'm going to." Doe 3 was afraid to look, but

    he strongly believed Dimacali then masturbated behind him.

           Police arrested Dimacali on March 22, 2001. Pursuant to a plea agreement,

    Dimacali pleaded guilty to one count of violating section 288a, subdivision (b)(1) (oral

    copulation with a person under 18) and one count of violating section 288a, subdivision

    (b)(2) (oral copulation by a person over 21 with a person under 16). The court sentenced

    Dimacali to five years of supervised probation, subject to 365 days of local incarceration,

    and a mandatory requirement for violation of section 288a that he register as a sex

    offender for life under section 290.

           In June 2013, Dimacali filed a petition for writ of mandamus requesting relief

    under Hofsheier from the mandatory sex offender registration requirement. In September

    2013, the court found the section 290 mandatory registration requirement
 
    unconstitutional. The court ordered an evidentiary hearing to determine whether
                                                 4
 




    Dimacali should nonetheless register under section 290.006. In December 2013, the

    court denied Dimacali's petition and ordered discretionary registration for life.

                                           DISCUSSION

                                                  I

                                        Standards of Review
 
           We apply two standards of review: de novo and abuse of discretion. When an

    appeal raises pure questions of law, not involving the resolution of disputed facts, the

    reviewing court exercises independent judgment or de novo review, which gives no

    deference to the trial court's ruling. (People v. Bergen (2008) 166 Cal.App.4th 161, 167.)

    Dimacali's first two contentions on appeal concern the Sixth Amendment and the court's

    jurisdiction to impose a discretionary registration requirement. These contentions raise

    pure questions of law and thus are governed by a de novo standard of review.

When a trial court has discretionary power to decide an issue, however, the reviewing court

            must apply the abuse of discretion standard. (People v. Jordan (1986) 42

    Cal.3d 308, 316.) This standard is deferential, "[b]ut it is not empty." (People v.

    Williams (1998) 17 Cal.4th 148, 162.) "[I]t asks in substance whether the ruling in

    question 'falls outside the bounds of reason' under the applicable law and the relevant

    facts." (Ibid., quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) Dimacali's third

    and fourth contentions challenge the court's exercise of its discretionary powers. The

    abuse of discretion standard applies to these contentions.




                                                  5
 




                                                   II
 
                 Sex Offender Registration as a Nonpunitive, Regulatory Measure
 
           Dimacali contends the court's postconviction imposition of a registration

    requirement constitutes an increased penalty or enhanced punishment in contravention of

    the Sixth Amendment to the United States Constitution.

           In 2000, the United States Supreme Court 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 v. New Jersey (2000) 530 U.S. 466, 490.) In 2006, our Supreme Court ruled

    the section 290 mandatory lifetime registration requirement for persons convicted of

    violating section 288a, subdivision (b)(1), was unconstitutional. (Hofsheier, supra, 37

    Cal.4th at pp. 1197, 1206-1207.) It held that equal protection principles precluded a

    mandatory lifetime registration requirement for those convicted of oral copulation with a

    minor when there was no such mandatory requirement for those convicted under section

    261.5 of sexual intercourse with a minor. (Hofsheier, at pp. 1206-1207.)
 
           The Hofsheier court remanded the matter to the trial court to determine whether the

    defendant fell within the discretionary registration category described in what is now

    section 290.006, which provides in part: "Any person ordered by any court to register . . .

    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." (§ 290.006; Hofsheier, supra, 37 Cal.4th at p. 1209.)
                                                   6
 




    The court expressly declared, "the trial court may, in its discretion, order defendant to

    register as a sex offender under that provision." (Hofsheier, supra, 37 Cal.4th at p. 1209.)

           Four years later, our Supreme Court addressed the proper procedural vehicle for

    those possibly entitled to Hofsheier relief. (People v. Picklesimer (2010) 48 Cal.4th 330

    (Picklesimer).) The court concluded, "for those . . . no longer in custody and whose

    appeals are final, claims for Hofsheier relief . . . must be brought by way of a petition for

    writ of mandate in the trial court." (Id. at p. 335.)

           The Picklesimer court then considered the exact issue raised by Dimacali here,

    namely whether the section 290.006 discretionary registration requirement "permits

    imposition of heightened punishment based on findings of fact by a trial court rather than

    a jury, in violation of Apprendi . . . ." (Picklesimer, supra, 48 Cal.4th at p. 343.) The

    court flatly rejected this claim, emphasizing that because sex offender registration is not

    punishment, Apprendi "has no application here." (Picklesimer, at pp. 343-344.)

           As did the defendant in Picklesimer, Dimacali argues the postconviction

    registration requirement constitutes an increased penalty in violation of the Sixth

    Amendment. Like our Supreme Court in Picklesimer, we conclude Apprendi has no

    application here. Dimacali attempts to differentiate his case from Picklesimer by alleging

    "things have changed dramatically for those who are required to register as sex

    offenders." However, Dimacali's argument falls short as, curiously, he points only to

    sections 290.46, "Megan's Law" of 2004, and 3003.5, subdivision (b), "Jessica's Law" of

    2006, as evidence of the supposed "dramatic change," both of which existed at the time
 
    Picklesimer was decided in 2010. This court is bound to follow Picklesimer. (See Auto
                                                   7
 




    Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of

    stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions

    of courts exercising superior jurisdiction."].)

                                                   III
 
 
                 Jurisdiction to Impose a Postconviction Registration Requirement
 
           Dimacali next contends the court exceeded its jurisdiction in violation of

    Dimacali's due process rights when it imposed the discretionary registration requirement

    after Dimacali's probation term had expired.

           A. Forfeiture
 
           Because Dimacali did not raise this issue in the trial court, he arguably cannot raise

    it now. " ' "[A]n appellate court will ordinarily not consider procedural defects or

    erroneous rulings, in connection with relief sought or defenses asserted, where an

    objection could have been, but was not, presented to the lower court . . . ." ' " (People v.

    Saunders (1993) 5 Cal.4th 580, 589-590; People v. Leonard (2014) 228 Cal.App.4th 465,

    481.) We conclude this issue is forfeited. (Leonard, at p. 481.) Even if we reach the

    merits, however, we conclude the contention is unavailing.

           B. The Proper Procedural Method Under Picklesimer
 
           A petition for writ of mandate is "the appropriate vehicle for seeking Hofsheier

    relief . . . ." (Picklesimer, supra, 48 Cal.4th at p. 339.) In fact, it "is an independent

    proceeding that vests the trial court with jurisdiction to act," and to "resolve any legal or

    factual issues, via an evidentiary hearing if need be." (Id. at pp. 339, 340.)



                                                      8
 




           In Picklesimer, our Supreme Court recognized the trial court would be

    empowered, by way of a petition for writ of mandate, to determine whether a defendant

    should be required to register under section 290.006. (Picklesimer, supra, 48 Cal.4th at

    p. 342.) This was true even though the defendant in Picklesimer, like Dimacali, had

    completed his sentence and was no longer subject to probation or parole. (See id. at

    p. 336.)
 
           Dimacali acknowledges that Picklesimer directly conflicts with his position. He

    nonetheless contends a Hofsheier petitioner who has successfully complied with his or

    her probationary terms should be immune from postconviction discretionary registration.

    But "in cases where mandatory sex offender registration has been shown to violate equal

    protection, the procedure that most closely matches the legislative intent is not automatic

    removal of a sex offender from the state sex offender registry, but an after-the-fact

    discretionary determination whether removal is appropriate." (Picklesimer, supra, 48

    Cal.4th at p. 343, fn. omitted.) We conclude the court acted within its jurisdiction when

    it found Dimacali was not immune from postconviction discretionary registration.

                                                 IV
 
                                  The Two-step Hofsheier Inquiry
 
           Dimacali next contends the court abused its discretion under section 290.006

    because it misapplied the two-step Hofsheier inquiry.

           Hofsheier explained that, to implement discretionary registration under section

    290.006, "the trial court must engage in a two-step process: (1) it must find whether the

    offense was committed as a result of sexual compulsion or for purposes of sexual
                                                 9
 




    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.) Hofsheier further explained section 290.006 "gives the trial court discretion to

    weigh the reasons for and against registration in each particular case." (Ibid.)

           Dimacali concedes "the trial court made the correct finding on the first step," as the

    offense was committed "for a purpose of sexual gratification . . . ." He contends,

    however, that the court should have more fully considered the distinction between sexual

    compulsion and sexual gratification because sexual gratification allegedly is substantially

    less dangerous than sexual compulsion and thus allegedly weighs more heavily against

    imposition of a registration requirement. Dimacali cites no authority in support of this

    proposition.

           The court clearly found the offense was committed as a result of sexual

    compulsion or for purposes of sexual gratification. As required by Hofsheier, the court

    stated its reasons for this finding, including that "petitioner concedes that it was [sexually

    motivated]." The first step is therefore satisfied.

           As to the second step, Dimacali again concedes the court "stated reasons for

    requiring lifetime sex offender registration . . . ." However, Dimacali disagrees with the

    court's reasoning, arguing it did not properly balance all factors weighing for and against

    imposition of a lifetime registration requirement.

           The record does not support this contention. It shows the court complied with step

    two by stating its reasons for requiring Dimacali's lifetime registration as a sex offender.

    The court acknowledged reviewing the exhibits and the character letters included in the
                                                  10
 




    petition. The court commended Dimacali "for the treatment that he has undergone and

    the steps he has taken to correct the life that he was leading that inflicted great harm on

    these young men." The court went on to explain, however, that it was "very, very

    troubled" by the underlying facts giving rise to the prosecution, and was especially

    concerned that Dimacali abused his position of trust and authority and used drugs and

    alcohol to do so. After weighing the reasons for and against registration, paying special

    attention to the need "to warn the public that there could be someone out there that could

    bring harm to children," the court denied the petition.

           Dimacali contends the court abused its discretion because it did not properly

    consider all "mitigating circumstances," including the passage of time and his success in

    treatment. As already noted, the record shows otherwise. The court acknowledged that it

    "must weigh the reasons for and against registration in each particular case," and

    announced, "I've done that here."

           In the end, the court determined Dimacali's postconviction conduct was

    outweighed by the nature of the offenses and the need to warn the public. This reasoning

    aligns with the dual purpose of the registration requirement: to keep track of those who

    might reoffend and to notify members of the public of the existence and location of sex

    offenders so they can take protective measures. (See Hofsheier, supra, 37 Cal.4th at

    p. 1196.) Here, the court's analysis falls within "the bounds of reason" under the

    applicable law and the relevant facts. (People v. Williams, supra, 17 Cal.4th at p. 162.)




                                                 11
 




                                                    V
 
                             Discretionary Power to Weigh the Evidence
 
           Finally, Dimacali contends the court abused its discretion under section 290.006

    because it improperly ignored material evidence submitted to it.

           Specifically, Dimacali argues the court should have more seriously considered

    defense counsel's remarks concerning the results of a psychological evaluation conducted

    in 2001. Dr. Meredith Friedman, the psychologist responsible for the evaluation, insisted

    Dimacali "did not show a deviant pattern of sexual arousal that would be expected with a

    pedophile," and his "overall risk of future sexual deviance was considered to be low to

    low moderate." Dimacali claims the court refused to discuss the evaluation, or the impact

    of the evaluation, in making its decision, and this refusal amounts to an abuse of

    discretion.

           Dimacali's argument is not persuasive for three reasons. First, he did not include

    Dr. Friedman's evaluation as an exhibit to his petition. As such, the court could not

    consider that evaluation when ruling on the petition. This court cannot consider the

    evaluation because it is not part of the appellate record. (People v. Carrera (1989) 49

    Cal.3d 291, 317 ["[A]s review would require us to examine matters outside the present

    appellate record, these points are not properly before us on this appeal."].)

           Second, even were the evaluation part of the record, Hofsheier does not require

    that the court make an express finding as to an offender's risk of reoffending; it requires

    only that the court " 'state on the record . . . the reasons for requiring registration.' "

    (Hofsheier, supra, 37 Cal.4th at p. 1197; see § 290.006.) If Hofsheier intended to require
                                                    12
 




    an express finding as to an offender's risk of reoffending, it could have done so. In

    addition, if Hofsheier intended to require that the court state on the record all the reasons

    for requiring or not requiring registration, or all factors that weighed into the court's

    decision, it could have done so. It did not. (Hofsheier, at p. 1197.)

           Third, even if the court's decision to "ignore" the evaluation amounted to an abuse

    of discretion, this court could not interfere with the ruling unless it found the court

    "exercised its discretion in an arbitrary, capricious, or patently absurd manner that

    resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20

    Cal.4th 1, 9.) Given the circumstances, Dimacali has not established that he poses a

    minimal risk of reoffending, or that the court imposed the registration requirement

    arbitrarily, capriciously or in a manner that resulted in manifest injustice.

                                           DISPOSITION

           The order denying the petition is affirmed.
 
 
 
 
 
                                                                                    McDONALD, J.

    WE CONCUR:
 
 
    HALLER, Acting P. J.


    AARON, J.




                                                  13
