Filed 5/6/15 P. v. Valle CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066298

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN314249)

JUAN VALLE,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed.

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal and

Sean M. Rodriguez, Deputy Attorney General for Plaintiff and Respondent.
       Juan Valle appeals a trial court order requiring him to register as a sex offender for

a violation of Penal Code section 288.3, subdivision (a).1 On appeal, Valle contends that

requiring (1) mandatory sex offender registration pursuant to section 290 violates his

right to equal protection under the California and United States Constitutions, and (2)

discretionary sex offender registration pursuant to section 290.006 is improper because

the evidence shows he is not a threat to public safety and is not likely to reoffend.

       We need not address Valle's equal protection argument because we find that the

trial court did not abuse its discretion in requiring Valle to register as a sex offender in

accordance with section 290.006.2 There is sufficient evidence in the record to establish

that the crime was committed as a result of sexual compulsion or for purposes of sexual

gratification and that Valle is apt to be a repeat offender. We therefore affirm the trial

court's order.

                                FACTUAL BACKGROUND

       In 2012, Valle was convicted of contacting a minor with the intent of committing a

sexual offense. (§ 288.3, subd. (a).) Valle, 36 years old, first contacted the 16-year-old

victim via Facebook. Valle's Facebook post to the victim stated, "I'm horny for you,

[victim]. Could we fuck? I need you so bad. That how much I miss you. I want to get

you so horny and lick the tip of your pussy and suck your big tits. So we could get it on."

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

2      We note that the principal cases on which Valle relies in support of his equal
protection argument were overruled by the California Supreme Court in Johnson v.
Department of Justice (2015) 60 Cal.4th 871. A petition for rehearing was filed on
February 9, 2015 and denied on April 22, 2015.
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In phone conversations, Valle stated that he wanted to shower with her, lick her all over,

"bang" her and "fuck" her. He suggested they get a hotel room and have sex all day, told

her that he wanted her to be his girlfriend, and that he loved her. Valle asked the victim

for her address and tried to get her to meet him.

       In 2009, Valle was convicted of sexual battery, touching an intimate part of

another person against their will for the purpose of sexual arousal or sexual gratification.

(§ 243.4, subd. (e)(1).) The incident occurred in the smoking area outside of a hospital

and involved a 31-year-old female. After smoking and conversing about their heritage,

Valle stated, "If I was your man, I would be touching you here," and proceeded to caress

her cheeks. Although the victim backed away, Valle said, "But I would be touching you

here," and stroked both of her shoulders. When the victim turned to walk away, Valle

stated, "or I'd be holding you this way," and hugged her from behind, touching her

stomach and the "bottom portion of her breasts, twice."

                            PROCEDURAL BACKGROUND

       Prior to the sentencing hearing for the 2012 conviction, Valle filed a motion

asking the court to decline to order sex offender registration pursuant to sections 290 or

290.006. At the hearing, the court found that sex offender registration was mandatory

and discretionary registration was also proper. Valle appeals.

                                       DISCUSSION

       The Penal Code allows for the imposition of a lifetime registration requirement on

sex offenders. (§ 290 et seq.) The registration requirement is mandatory for a defendant

convicted of a statutorily specified sex offense (§ 290, subd. (c)), and is discretionary for

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a defendant convicted of any other offense. (§ 290.006.) Section 290.006 allows a court

to impose the discretionary registration requirement if (1) the court finds that the

defendant "committed the offense as a result of sexual compulsion or for purposes of

sexual gratification," and (2) the court states on the record reasons for its findings and for

requiring sex offender registration. Accordingly, as long as the trial court follows this

two-step process and is able to articulate reasons for finding that a crime was committed

as a result of sexual compulsion or for sexual gratification and reasons why registration

is, in the court's view, required, a defendant may be subject to lifetime sex offender

registration. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198 (Hofsheier).)

       In making a discretionary determination, a trial court is permitted to consider all

relevant information available to it at the time of sentencing (People v. Garcia (2008)

161 Cal.App.4th 475, 483) and weigh the reasons for and against requiring lifetime

registration. (Hofsheier, supra, 37 Cal.4th at p. 1197.) However, because the purpose of

sex offender registration is to keep track of persons likely to commit sexual offenses in

the future, one of the reasons for requiring discretionary registration must be that the

defendant is likely to reoffend. (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.)

       A trial court's decision to exercise its discretion to require lifetime sex offender

registration pursuant to section 290.006 is reviewed for an abuse of discretion. (People v.

Jordan (1986) 42 Cal.3d 308, 319.) An appellate court will not interfere with a

discretionary ruling unless it finds that the trial judge "exercised its discretion in an

arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of

justice." (Id. at p. 316.)

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       In the instant case, the trial court satisfied the first step required by section

290.006 by finding that the offense was committed as a result of sexual compulsion or for

purposes of sexual gratification. The judge stated, "obviously this case was sexually

motivated. When you look at the wording of the posting on Facebook, there's no

question that there was some sort of sexual compulsion or sexual purpose behind that

attempt to meet up with the victim in this case. So it was certainly sexually motivated

and for purposes of sexual gratification . . . ."

       The trial court also complied with the second step by stating its reasons for

requiring registration. The judge explained, "when the Court weighs the reasons for and

against the registration requirement, the Court is mostly -- well, the Court places great

weight on the prior conviction. This was a sexually-related offense, and if there was ever

a wake-up call, that should have been it. And I believe that Mr. Valle has . . . issues with

impulse control, and therefore if it was not mandatory, the Court would impose it under

290.006 after weighing and considering the facts of the case, and therefore, the Court will

order the 290 registration." From this statement, it is evident that the judge found that

Valle's conviction for a previous sexual offense and issues with impulse control, in light

of the facts of the current conviction, demonstrated Valle is likely to be a repeat offender,

making discretionary registration proper as well. Because the facts and reasons

articulated by the trial court on the record justify registration under section 290.006, there

is no indication that the sentencing judge exercised its discretion in an arbitrary,

capricious or absurd manner.



                                                5
       Nonetheless, Valle claims the trial court ignored evidence in the probation report

suggesting minimal intervention would reduce his risk of recidivism and evidence that his

behavior was typical of someone who is cognitively impaired,3 not a sexual predator.

       Valle's arguments are unpersuasive for several reasons. First, the record shows

that the trial court considered all of the evidence, including the probation report and his

disability. At the sentencing hearing, the judge specifically stated, "the Court has already

read and considered the probation report that was filed with the Court." Right before

sentencing, the judge reiterated, "the court has read and considered the probation report."

Regarding his disability, the judge added, "The Court obviously sat through this trial and

the Court is well aware of the level of functioning of the defendant."

       Second, Valle misconstrues the significance of any particular finding in the

probation report, because a trial court is permitted to consider all pertinent information

available to it at sentencing and the report also contained ample information weighing in

favor of registration. As Valle points out, the report stated that the "intellectually

disabled are a sweet, kind, and sensitive group of individuals . . . [that] are sometimes

promiscuous and display sexually inappropriate behaviors in public" and recommended

probation. According to the report, the COMPAS (Correctional Offender Management

Profiling for Alternative Sanctions) assessment tool suggested that Valle was likely to be

successful with minimal intervention, and Valle scored a 3 on the Static-99R Risk



3      Valle's social worker testified that Valle is "intellectually challenged" and
functions at the level of a 15 or 16 year old.

                                              6
Assessment test, putting him in the "low to moderate Risk Category for being convicted

of another sexual offense."

       However, the probation report specifically stated that Valle's "sex-related

convictions as an adult are increasing in seriousness" and recommended sex offender

treatment, intensive supervision by a sex offender unit, and mandatory registration. The

probation officer further opined that Valle will pose a "challenge for the treatment

provider and supervision officer," and suggested three years probation instead of the

minimum of 18 months. Moreover, the tests intended to measure the risk of recidivism

are only two of many factors that a judge is entitled to weigh in deciding whether to

impose discretionary registration and do not necessarily mean that registration is not

warranted, especially in the face of evidence to the contrary.

       The most significant evidence validating the trial court's determination are facts in

the record showing Valle is likely to commit future sexual offenses. This case is unlike

Lewis v. Superior Court, supra, 169 Cal.App.4th 70, 78-79 in which the Court of Appeal

concluded that the record did not support a finding that defendant was apt to be a repeat

offender or to prey on young girls. In Lewis, the underlying sexual offense was oral

copulation with a minor. (Id. at p. 73.) It involved an encounter with a 17 year old when

the defendant was 22 years old, and there was no evidence of force or coercion. (Id. at

p. 79.) The court stated that the victim was "not so young as to suggest" that the

defendant "had been compelled to act on account of her youth." (Ibid.) Additionally,

because in the 20 years since his conviction the defendant had not committed a sexual

offense or even a similar offense requiring registration, the court concluded there was no

                                             7
basis for imposing discretionary registration pursuant to section 290.006. (Lewis, supra,

at p. 79.)

        In contrast, here, the evidence showed that Valle was intent on pressuring and

coercing the victim to perform sexual acts. The probation report stated that the "manner

in which the crime was carried out demonstrated criminal sophistication on the part of

[Valle] in that his ongoing internet and telephone contact with the victim continued for

over a month." He called the victim approximately 19 times, had four to five phone

conversations with her, and there were weeks of messages going back and forth on

Facebook. Valle's behavior only came to a stop because the police intervened.

        There was also evidence that Valle is attracted to young girls. The victim told

Valle she was 16 years old and in high school, and Valle, 36 years old, told her that "he

had heard sex with teenagers was really good and mentioned how he wondered what it

would be like to have sex with a 16 year old." Valle said he was going to meet her at a

school field trip at the beach, and the victim believes he attempted to contact two other

high school students. Valle also had 13 other high school students on his Facebook

friend list.

        Moreover, Valle was convicted of two sexual offenses in a span of three years, one

in 2009 and one in 2012, establishing a pattern of sexually offensive behavior. We agree

with the trial court that Valle's previous 2009 conviction should have been a "wake-up

call." Finally, at the sentencing hearing, Valle's social worker confirmed that Valle needs

therapy for "emotional regulation" and to "improve impulse control."



                                             8
       Given the totality of the evidence, Valle's previous conviction for a sexual offense,

and his impulse control issues, we find that the sentencing judge reasonably concluded

that Valle is likely to commit future sexual offenses and discretionary registration was

appropriate. Because the trial court complied with the two-step inquiry set forth in

section 290.006 and its findings and reasons for requiring registration are supported by

the record, the court did not act in an arbitrary, capricious, or patently absurd manner.

Therefore, the trial court did not abuse its discretion in imposing registration pursuant to

section 290.006.

                                       DISPOSITION

       The trial court's order is affirmed.




                                                                              HUFFMAN, J.

WE CONCUR:


             BENKE, Acting P. J.


                          IRION, J.




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