Filed 5/21/15 P. v. Tanner CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067713
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM025721)
                   v.

DAVID RAY TANNER,
                                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
         Michael Pinkerton, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E.
Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         David Tanner was tried by jury on felony charges of forcible rape, false
imprisonment, making criminal threats, assault by means likely to produce great bodily
injury, and furnishing methamphetamine. The jury returned guilty verdicts on the latter
three counts, but acquitted him of false imprisonment and hung on the forcible rape
charge. Despite a mistrial on the allegations of rape, the trial court exercised its
discretion under Penal Code section 290.006 to impose a sex offender registration
requirement as part of Tanner’s sentence based on its finding that his crimes were
committed for purposes of sexual gratification. This appeal concerns the constitutionality
of the registration requirement.
       Tanner argues that he had a constitutional right to have a jury decide the factual
prerequisites upon which the registration requirement was based. He further contends
that sex offender registration has corollary effects which amount to cruel and unusual
punishment. Both arguments are directly at odds with the California Supreme Court’s
opinion in People v. Mosley (2015) 60 Cal.4th 1044 (Mosley), which was decided during
the pendency of this appeal. In light of the holdings in Mosley, and for the additional
reasons discussed below, we reject his constitutional claims.
       Tanner alternatively seeks remand for further sentencing proceedings on grounds
that the trial court failed to provide a statement of reasons for imposing the registration
requirement. Raised for the first time on appeal, this claim is subject to our district’s
precedent regarding the rule of forfeiture for a routine procedural issue that should have
been addressed at the time of sentencing. We affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The Merced County District Attorney charged Tanner by amended information
with forcible rape (Pen Code,1 § 261, subd. (a)(2); Count 1), false imprisonment (§§ 236,
237, subd. (a); Count 2), criminal threats (§ 422; Count 3), assault with force likely to
produce great bodily injury (§ 245, subd. (a)(4); Count 4) and furnishing
methamphetamine (Health & Saf. Code, § 11379). An enhancement allegation was
attached to Count 4 for personal infliction of great bodily injury (§ 12022.7, subd. (a)). It

       1   All statutory references are to the Penal Code unless otherwise indicated.


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was further alleged that Tanner had served three prior prison terms within the meaning of
section 667.5, subdivision (b). The case went to trial in May 2013.
       We provide only a brief summary of the trial evidence given its limited relevance
to the issues on appeal. Vannessa, the 19-year-old victim and complaining witness,
testified to being held against her will, assaulted, and raped by Tanner (age 31) over a
two-day period. The crimes allegedly occurred at a house in Atwater where Tanner lived
with his father, mother, and niece.
       Vannessa met Tanner in October 2012 and formed a relationship with him which
primarily involved smoking methamphetamine and having sexual intercourse. The
victim acknowledged having consensual sex with Tanner multiple times while she was
staying at his house during the final week of November 2012, when the events at issue
took place. At one point, however, she declined to be physically intimate with him
because her genitalia was sore from the sexual activity. Tanner ignored her protests and
forced himself inside of her. Vannessa, who stood at 4’11” and weighed approximately
100 pounds, was unable to stop him.
       After the first instance of unwanted intercourse, Vannessa’s attempts to leave the
residence were met with verbal threats and physical violence. Tanner allegedly disabled
her cell phone and raped her several more times throughout the weekend. The victim
described being tied to a bed and sodomized during one of the assaults. She was also
choked to the point of losing consciousness. Once Vannessa was able to leave the house,
she immediately reported the incident to police.
       Tanner claimed his intercourse with Vannessa had been consensual, albeit
“rough,” “rugged,” and of the “S&M” variety. She let him slap and choke her, and had
voluntarily engaged in light bondage and anal sex. Tanner was sleeping with multiple
women during this time period and regarded Vannessa as someone to whom he provided
drugs in exchange for sexual favors. Her extended stay at his home caused tension
between Tanner and his family members, who complained about the noise associated

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with their fornication. He eventually asked Vannessa to leave and she refused, which led
to a violent argument. Tanner admittedly tried to throw Vannessa out of his bedroom
window during the altercation. His family broke up the fight, and Vannessa left the
house shortly thereafter.
       Tanner was acquitted of false imprisonment as alleged in Count 2. He was
convicted on Counts 3, 4, and 5, but the great bodily injury enhancement was rejected as
not true. The jury deadlocked by a vote of 8 to 4 in favor of guilt on the forcible rape
charge, which resulted in a mistrial on that count. Tanner subsequently admitted the prior
prison term allegations. His criminal history included felony convictions for statutory
rape in 2000 and 2006.
       The trial court imposed an aggregate sentence of seven years and eight months in
prison. This was calculated using the assault conviction as the principal count, for which
Tanner received the middle term of three years. Consecutive terms of eight months and
one year were imposed for Counts 3 and 5, respectively, plus consecutive one-year
enhancements for each of Tanner’s three prior prison terms.
       Both sides presented argument regarding the possible imposition of a sex offender
registration requirement. The prosecution argued for registration because Tanner’s
crimes were committed for purposes of sexual gratification. Defense counsel asserted
that the Sixth Amendment to the United States Constitution precluded such a requirement
absent findings by the jury regarding sexual compulsion or gratification because
registration is a form of punishment. More specifically, counsel argued that “sex
registration restricts [where someone] can live, who they can associate with, where they
can work, and therefore those restrictions make it punitive.” Recognizing that it had
discretion not to do so, the trial court imposed a lifetime registration requirement
pursuant to its authority under section 290.006. The court found Tanner’s crimes were
indeed committed for purposes of sexual gratification, and that such motivations were
confirmed by the defendant’s own trial testimony.

                                             4.
                                       DISCUSSION
Constitutional Claims
       “California law has long required persons convicted of certain specified sex
crimes … to register as sex offenders as long as they live or work in California.”
(Mosley, supra, 60 Cal.4th at p. 1048, citing § 290, subds. (b), (c).) When a defendant is
convicted of an offense that does not carry a mandatory registration requirement, he or
she may nevertheless be compelled to register as a sex offender due to the circumstances
of the crime. Non-mandatory registration is governed by section 290.006, which
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 gratification. The court shall
state on the record the reasons for its findings and the reasons for requiring registration.”
       Appellant does not challenge the constitutionality of the registration requirements
in section 290 et seq., but rather the consequences which flow therefrom by operation of
section 3003.5, subdivisions (b) and (c). These provisions were added to the statutory
scheme governing parole after the 2006 enactment of Proposition 83, also known as
Jessica’s Law. (Mosley, supra, 60 Cal.4th at p. 1048.) As a result, it is now “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).) Municipalities may also enact local ordinances further restricting
the residency of any person for whom registration is required pursuant to section 290.
(§ 3003.5, subd. (c).)
       Tanner’s position rests on the premise that requiring him to register under section
290 inevitably subjects him to the residency restrictions of section 3003.5, which he
believes are punitive. In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the
United States Supreme Court held that the Sixth Amendment requires a jury to find “any

                                              5.
fact that increases the penalty for a crime beyond the prescribed statutory maximum.”
(Id. at p. 490.) Relying on Apprendi and the notion that sex offender registration
constitutes increased punishment, Tanner submits that imposition of the registration
requirement based on findings made by the trial court violated his rights under the Sixth
Amendment. Taking the argument one step further, he contends the residency
restrictions in section 3003.5 are not only punitive, but have the practical effect of
societal banishment and thus constitute cruel and unusual punishment. These claims are
foreclosed by the recent decision in Mosley, supra.
         The Mosley case arose from a trial court’s discretionary order, made pursuant to
section 290.006, that a defendant convicted of assault register as a sex offender due to the
underlying circumstances of his crime. (Mosley, supra, 60 Cal.4th at pp. 1051-1052.)
Confronted with essentially the same contentions as Tanner has raised here, our Supreme
Court held that “the residency restrictions of Jessica’s Law are not, on their face, an
added ‘penalty’ for [the defendant’s] conviction to which Apprendi applies. Like sex
offender registration requirements, the restrictions are not intended as punishment or
retribution for the offense or offenses that led to their imposition.” (Id. at p. 1062.) The
court also rejected the argument that the residency restrictions are akin to banishment.
(Id. at p. 1066.) In summary, “[b]ecause sex offender registration orders are not
punishment in and of themselves, their imposition is not subject to Apprendi.” (Id. at p.
1070.)
         In a two-page letter brief filed on March 24, 2015, Tanner concedes that we are
“bound by Mosley at this juncture.” However, the letter also contains references to
another recently published opinion entitled In re Taylor (2015) 60 Cal.4th 1019 (Taylor),
which supposedly “reveals that Penal Code section 3003.5, subdivision (b), is
unconstitutional as applied to him.” We must reject this claim as well.
         The Taylor case was initiated through habeas petitions filed by registered sex
offenders on active parole in San Diego County against whom section 3003.5,

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subdivision (b) had been enforced. (Taylor, supra, 60 Cal.4th at p. 1023.) The residency
restrictions were not challenged as constituting cruel and unusual punishment, but rather
on the basis of petitioners’ “fundamental constitutional rights to intrastate travel, to
establish and maintain a home, and to privacy and free association with others within
one’s home….” (Id. at p. 1036.) The high court concluded that due process protections
under the Fourteenth Amendment rendered the statute’s residency restrictions
unconstitutional “as applied across the board to petitioners and similarly situated
registered sex offenders on parole in San Diego County.” (Id. at p. 1023.) However, the
Department of Corrections and Rehabilitation “retains the statutory authority, under
provisions in the Penal Code separate from those found in section 3003.5(b), to impose
special restrictions on registered sex offenders in the form of discretionary parole
conditions, including residency restrictions that may be more or less restrictive than those
found in section 3003.5(b), as long as they are based on, and supported by, the
particularized circumstances of each individual parolee.” (Ibid.)
       Tanner’s cursory reference to the Taylor opinion does not warrant our
consideration of his attempt to make an “as applied” challenge to the constitutionality of
section 3003.5. (See People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [“‘Obvious
reasons of fairness militate against our considering this poorly developed and untimely
argument.’”].) The other problem is that section 3003.5 specifically applies to parolees
and is triggered upon “the registered sex offender’s securing of a residence upon his
release from custody on parole.” (In re E.J. (2010) 47 Cal.4th 1258, 1274.) There is
nothing in the record to indicate Tanner is on parole or that the provisions of section
3003.5 have ever been enforced against him. The length of his prison sentence suggests
the opposite. Thus, even if we were inclined to consider the merits of his argument, the
claim is not ripe for review.




                                              7.
Forfeiture of Procedural Objections
       Tanner complains that the trial court did not fulfill its obligation to “state on the
record the reasons for its findings and the reasons for requiring registration.”
(§ 290.006, italics added.) Our district rejected a similar claim in People v. Bautista
(1998) 63 Cal.App.4th 865 (Bautista). There, a trial court exercised its discretion to
impose the sex offender registration requirement pursuant to former section 290,
subdivision (a)(2)(E), which has since been renumbered as section 290.006. (Stats. 2007,
ch. 579, §§ 7, 14; Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 76, fn. 4. [“The
discretionary provision is found in section 290.006, which contains the provisions of
former section 290, subdivision (a)(2)(E) without substantive change.”].) The trial judge
in Bautista found registration to be appropriate “in view of the circumstances surrounding
the offense.” (Bautista, supra, 63 Cal.App.4th at p. 867.) On appeal, the defendant
argued that it was necessary to remand the matter because the court failed to provide a
statement of reasons for requiring registration. (Ibid.) We made the following
observations:
       “It is now settled a defendant cannot complain for the first time on appeal about
the court’s failure to state reasons for a sentencing choice. [Citations.] Bautista objected
to the registration requirement, but did not object to the court’s failure to provide a more
complete statement of reasons for its findings and for requiring registration. This routine
defect could easily have been prevented and corrected had it been brought to the court’s
attention. (People v. Scott [1994] 9 Cal.4th [331], 353.)” (Bautista, supra,
63 Cal.App.4th at p. 868.)
       Here, as in Bautista, defense counsel presented argument in opposition to the
registration requirement and easily could have requested clarification or elaboration from
the trial court regarding its sentencing decision. The court’s failure to articulate more
clearly its reason for imposing the registration requirement “is a defect which could have



                                              8.
been corrected by a timely objection.” (Bautista, supra, 63 Cal.App.4th at p. 871.)
Tanner “cannot raise the defect for the first time on appeal.” (Ibid.)
                                      DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                     GOMES, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
SMITH, J.




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