Filed 1/24/14 P. v. Reynolds CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)




THE PEOPLE,                                                                                  C072985

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM035404)

         v.

SPENCER DEAN REYNOLDS,

                   Defendant and Appellant.




         Defendant Spencer Dean Reynolds entered a plea of no contest to foreign object
penetration on a victim under the age of 18 years (Pen. Code, § 289, subd. (h); count
five).1 The remaining counts and allegations (forcible rape, foreign object penetration by
force or violence, two counts of sexual battery, and personal use of a deadly weapon)
were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754




1        Undesignated section references are to the Penal Code.

                                                             1
(Harvey).2 The court sentenced defendant to state prison for the midterm of two years
and ordered him to register as a sex offender.
       Defendant appeals. He contends the trial court stated inadequate reasons for
ordering him to register as a sex offender, specifically reasons for requiring lifetime
registration. He also contends insufficient evidence supports the implied finding that he
is likely to reoffend.
       The People respond that remand is required for the trial court to state reasons for
its exercise of discretion in ordering sex offender registration. We agree that remand is
required.
                                          FACTS
       On May 10, 2011, the 20-year-old defendant met 16-year-old C.E. on the street in
Oroville. C.E. claimed she had run away from home and led defendant to believe that
she was 18 or 19 years of age. They visited defendant’s friend who loaned a sleeping bag
to them. While waiting for defendant, C.E. consumed several shots of rum. Defendant
and C.E. went to Bedrock Park. C.E. claimed defendant threatened her, grabbed her hand
and had her rub his penis, digitally penetrated her, had sexual intercourse with her
without using a condom, ejaculated in her, and sodomized her. She claimed defendant
had a folding knife which he had pointed at her stomach. She denied the acts were
consensual. C.E. seemed developmentally delayed to the investigating officer.
       Defendant admitted that he kissed C.E. on the neck and breasts and digitally
penetrated her, and that she fondled his penis. He claimed the acts were consensual. He
denied any other sexual acts. He had a folding knife when an officer spoke with him two
days after the offenses.



2      Defendant also entered a guilty plea to carrying a dirk or dagger, a misdemeanor
(former § 12020, subd. (a)(4) [now § 21310]), in case No. SCR83465, and the remaining
count (Health & Saf. Code, § 11357, subd. (b)) was dismissed with a Harvey waiver.

                                              2
       DNA evidence was consistent with oral contact by a male on C.E.’s neck. C.E.
refused to allow vaginal and rectal swabs to be taken. Tested for DNA, her underwear
did not reveal any evidence.
                                          DISCUSSION
       At sentencing, the trial court ordered defendant to register as a sex offender,
finding that defendant committed the offense for the purposes of sexual gratification.
Defendant contends, the People concede, and we agree that the finding for discretionary
sexual offender registration is inadequate. The People argue remand is required while
defendant argues insufficient evidence supports discretionary registration so that the
requirement should be stricken. We conclude that remand is required.
Background
       The probation officer reported that a “Static 99” test was completed several days
before sentencing and that defendant tested at a moderate to high risk of reoffending.
After committing the current offense, defendant was caught at Bedrock Park with another
female juvenile and he was carrying a knife.
       At sentencing, defense counsel requested that the court reduce the offense to a
misdemeanor. Defense counsel also argued registration was not warranted because
defendant engaged in digital penetration with the victim who defendant believed was
19 years of age. The prosecutor opposed reduction to a misdemeanor and argued that
registration was necessary. The prosecutor claimed defendant took advantage of a
16-year-old girl who was a stranger, had the mental capacity of a 12 year old which
should have been apparent to defendant when he spoke with her, and had been given
alcohol. Defense counsel claimed the victim was not mentally disabled but may have had
a schizoaffective disorder that led her to claim rape.
       The court denied defendant’s request to reduce the offense to a misdemeanor.
Although the court found persuasive the sexual assault examiner’s opinion that her
physical findings did not support the victim’s claim of sexual intercourse, the court noted

                                               3
that defendant admitted during his interview that he digitally penetrated the victim and
had other contact with the victim (he kissed her neck and breasts and let the victim fondle
his penis). In imposing the midterm of two years, the court found in aggravation that the
minor was a runaway and was vulnerable due to her reduced mental health capacity, and
in mitigation that defendant was youthful with no prior record. In ordering defendant to
register as a sex offender, the court adopted the findings made previously and found that
defendant committed the offense for the purpose of sexual gratification.
       Defendant’s Static 99 score was discussed in connection with postrelease
supervision.3 The probation officer noted defendant’s score was “moderate [to] high.”
Defense counsel noted the Static 99 score but complained that he did not know who had
administered it. The court did not make a finding for purposes of postrelease supervision
as to whether defendant posed a high risk as a sex offender.
Analysis
       For persons convicted of specified offenses, sex offender registration is
mandatory. (§ 290, subd. (c).) For persons convicted of an offense not specified in
section 290, subdivision (c), sex offender registration is discretionary with the trial court
(§ 290.006).4
       Even though section 289 is listed in section 290, defendant’s offense is similar for
equal protection purposes to unlawful sexual intercourse which does not require




3      The People state that the record reflects confusion over the availability of
defendant’s Static 99 score at sentencing and that the risk score “is not noted in the record
on appeal.” Even though no details were given, the probation report noted that a
Static 99 had been completed and defendant’s risk level was moderate to high.


4       Former section 290, subdivision (a)(2)(E) set forth discretionary sex offender
registration. (Stats. 1994, ch. 865, § 1, p. 4317.) Discretionary registration is now set
forth in section 290.006.

                                              4
mandatory registration. (People v. Picklesimer (2010) 48 Cal.4th 330, 341-342;
People v. Hofsheier (2006) 37 Cal.4th 1185, 1195, 1198-1199, 1206-1207 (Hofsheier);
People v. Ranscht (2009) 173 Cal.App.4th 1369, 1372, 1375.) Thus, registration for
defendant’s offense is required only if ordered at sentencing (§ 290.006).
       In imposing discretionary registration pursuant to 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 gratification, and state the
reasons for these findings; and (2) it must state the reasons for requiring lifetime
registration as a sex offender. 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.)
       We review a trial court’s order imposing discretionary registration for abuse of
discretion. “[A] trial court does not abuse its discretion unless its decision is so irrational
or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004)
33 Cal.4th 367, 377.)
       In ordering defendant to register under section 290.006, the trial court made one of
the required findings. While the court found that defendant committed the offense for the
purpose of sexual gratification, the court did not state reasons for requiring lifetime
registration as a sex offender. The court did not “weigh the reasons for and against
registration . . . .” (Hofsheier, supra, 37 Cal.4th at p. 1197.) Without these articulated
reasons, we cannot determine whether the trial court properly exercised its discretion in
ordering defendant to register. (See People v. Bonnetta (2009) 46 Cal.4th 143, 151-152
[discussing purpose of requirement of statement of reasons for ordering dismissal under
§ 1385].)



                                               5
       We agree with the People that remand is appropriate to permit the court to state
reasons for ordering lifetime registration for defendant. We reject defendant’s argument
that the record is devoid of facts that would provide reasons for registration. Although no
details were given, the probation report noted that on the Static 99, defendant tested at a
moderate to high risk of reoffending. The probation report also noted that after the
current offense, defendant was caught by the police in the same park with another female
juvenile. Defendant was found in possession of a knife at the time.
       “Since the purpose of sex offender registration is to keep track of persons likely to
reoffend, one of the ‘reasons for requiring registration’ under section 290.006 must be
that the defendant is likely to commit similar offenses – offenses like those listed in
section 290 – in the future. [Citation.] [¶] The registerable crimes listed in section 290,
subdivision (c) may be characterized generally as sexual offenses committed by means of
force or violence, violent offenses committed for sexual purposes, sexual offenses
committed against minors, or offenses that involve the sexual exploitation of minors.”
(Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.)
       While there is some evidence in the record suggesting that defendant is likely to
reoffend, the record also reflects that defendant had no prior criminal record and was
youthful (20 years old at the time of the offense) and that the victim led defendant to
believe that she was 18 or 19 years of age. It is for the trial court, not this court, in the
first instance to consider the likelihood defendant will reoffend and, if so, state reasons
for requiring lifetime registration as a sex offender to facilitate meaningful appellate
review of whether the trial court abused its discretion.




                                               6
                                      DISPOSITION
       The trial court’s order requiring defendant to register as a sex offender is set aside
and the matter is remanded to the trial court for the limited purpose of determining
whether to order defendant to register as a sex offender and to state all of the required
reasons. In all other respects, the judgment is affirmed.




                                                     BLEASE                    , J.


We concur:


  RAYE                      , P. J.


  MURRAY                    , J.




                                              7
