Filed 9/8/14 Rhone v. Harris CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

DWIGHT RHONE,                                                       D064606

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. MCR-13-261)

KAMALA D. HARRIS, as Attorney General,
etc.,

         Defendant and Respondent;

THE PEOPLE,

         Real Party in Interest and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.

         Reed Webb, under appointment by the Court of Appeal, for Petitioner and

Appellant.

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

Charles C. Garland and Kimberley A. Donohue, Deputy Attorneys General, for

Defendant and Respondents.
                                             I.

                                    INTRODUCTION

       Appellant Dwight Rhone appeals from a September 16, 2013 order of the trial

court denying his petition for a writ of mandamus, filed pursuant to the authority of

People v. Hofsheier (2006) 37 Cal.4th 1185, seeking relief from the requirement that he

register as a sex offender.

       On appeal, Rhone contends that the trial court abused its discretion in ordering that

he continue to register as a sex offender pursuant to Penal Code1 section 290.006. We

conclude that Rhone has not shown an abuse of discretion, and we therefore affirm the

trial court's order.

                                            II.

                       FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       On January 28, 1980, Rhone, who was in custody in the San Diego County jail

awaiting sentencing for a robbery, sodomized one of his cellmates. The incident began

earlier in the day when Rhone told the cellmate, "I'm going to take you." When Rhone's

cellmate objected, Rhone pushed him, choked him, and hit his head against the wall.

Later that night, against his cellmate's wishes, Rhone sodomized the cellmate. Rhone

inserted both his finger and his penis into his cellmate's anus. Rhone's cellmate requested

a transfer the following day and was placed in protective custody.



1      Further statutory references are to the Penal Code unless otherwise indicated.
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B.     Procedural background

       In March 1980, the San Diego County District Attorney filed an information

charging Rhone with one count of sodomy (§ 286, subd. (c); count 1) and one count of

sodomy while confined in a local detention facility (§ 286, subd. (e); count 2). The

information also alleged that Rhone had suffered three prison priors (§ 667.5, subd. (b)).

       Rhone was convicted and was ordered to register as a sex offender under section

290. On May 30, 2013, Rhone filed a petition for a writ of mandamus, seeking to have

his name removed from the sex offender registry under the authority of Hofsheier.

       In response, the People conceded that Rhone is not subject to mandatory sex

offender registration, but argued that discretionary registration would nevertheless be

appropriate in Rhone's case. The trial court agreed with the People's position and denied

Rhone's petition for a writ of mandamus, ordering him to continue to register as a sex

offender pursuant to section 290.006. Rhone filed a timely notice of appeal.

                                              III.

                                        DISCUSSION

       Rhone contends that the trial court abused its discretion in denying his petition for

a writ of mandamus to terminate the requirement that he register as a sex offender.

       Section 290.006 allows a court to order a person to register as a sex offender "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

statute requires the trial court to "state on the record the reasons for its findings and the

reasons for requiring registration." (§ 290.006.)

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       The court in Hofsheier explained that under section 290.006, the court engages 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." (Hofsheier, supra, 37 Cal.4th at p. 1197.) As long as the trial court articulates

the reasons for finding that a crime was committed for sexual gratification and the

reasons why lifetime registration is, in the court's view, required, a defendant may be

subject to lifetime registration. (Id. at pp. 1197-1198.)

       A trial court's order imposing a discretionary lifetime sex offender registration

requirement is reviewed for an abuse of discretion. (People v. Jordan (1986) 42 Cal.3d

308, 316, 320.)

       The trial court found that Rhone sodomized his cellmate in 1980 as result of

sexual compulsion and for the purpose of sexual gratification. The trial court also

articulated its reasons why the court believed lifetime registration was appropriate. For

example, the trial court determined that Rhone had engaged in forcible sodomy. The

court concluded that appellant was "someone who, given the opportunity and the desire,

took this one man, and given his lack of control of himself I do think there is a legitimate

concern that, given the opportunity and coinciding with his desire, might take someone

else against their will."

       Rhone suffered at least seven felony convictions subsequent to his sex offense in

1980. He also knowingly refused to comply with his registration requirements on

multiple occasions, and he violated his parole numerous times by absconding and

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possessing drug paraphernalia. Although Rhone characterizes his post-1980 criminal

history as relating solely to drug offenses, the court was free to examine all of his conduct

and conclude that Rhone's behavior over this period of time demonstrated a disregard for

the public safety parameters imposed on him. The court could reasonably have

concluded that Rhone's behavior also demonstrated an inability to control his impulses.

       Rhone's reliance on People v. Garcia (2008) 161 Cal.App.4th 475 (Garcia) is

misplaced. Garcia had been convicted of a sex offense in 1987 for which he sought relief

from the sex offender registry requirements under Hofsheier. At the hearing on Garcia's

request to be relieved of the obligation to register as a sex offender under section 290, the

trial court noted that Garcia had not reoffended with an offense of a sexual nature.

However, the court denied the request, concluding that the 1987 offense had been serious

enough to warrant imposition of the registration requirement. (Garcia, at pp. 479-480.)

In reversing the trial court's order, the appellate court stated,

           "Where registration is discretionary, then, one consideration before
           the court must be the likelihood that the defendant will reoffend.
           Where a Hofsheier hearing must be held, 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. [¶] Since the trial court
           did not consider this information in exercising its discretion to
           require defendant to register as a sex offender, we must reverse its
           order and remand for a new hearing on defendant's motion. At the
           hearing, the trial court should consider the evidence defendant
           presented as to his good behavior and rehabilitation." (Garcia, at
           p. 485.)

       In this case, in contrast, the trial court did consider the information that the Garcia

court was concerned had not been considered by the trial court in that case. After


                                               5
considering all of the facts regarding Rhone's offense history subsequent to his 1980

forcible sodomy offense, the trial court concluded that Rhone should not be relieved of

the requirement that he register as a sex offender.

       Lewis v. Superior Court (2008) 169 Cal.App.4th 70 (Lewis), on which Rhone also

relies, is also of no assistance. Rhone focuses on the following language from Lewis:

          "In this case, it is undisputed 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. Even if we
          assume that Lewis's 1987 conviction involved his taking advantage
          of the victim's vulnerable situation, he has not committed a single
          similar incident since then. Thus, the only possible basis for
          imposing a discretionary registration requirement in 2008 would be a
          finding that it is likely Lewis will start committing such offenses
          now. There is nothing in the record to support such a finding."
          (Lewis, at p. 70.)

       Rhone apparently relies on Lewis to suggest that the fact that he has not committed

any subsequent sexual offense should lead to relief from the registration requirement.

However, the lack of any new offense of a sexual nature is merely one factor that a court

must consider. The Lewis court considered that factor, in addition to others. Specifically,

the Lewis court also considered the fact that the underlying sex offense, which was oral

copulation with a minor 16 or 17 years old, had involved a consensual encounter, and

there was no evidence of force or coercion. In contrast, in this case, the original sexual

offense involved force. Further, although Rhone has not committed another forcible

sexual offense since his conviction for forcible sodomy, he has engaged in further

criminal conduct.



                                             6
       It was well within the trial court's discretion to weigh the brutality of Rhone's

sexual offense, the forcible nature of the offense, as well as Rhone's lack of impulse

control as evidenced by his repeated arrests and commission of other offenses, against the

absence of additional sexual offenses. The trial court could have reasonably concluded

that lifetime sex offender registration was appropriate, given all of the circumstances.

                                             IV.

                                      DISPOSITION

       The trial court's order of September 16, 2013, is affirmed.



                                                                                 AARON, J.

WE CONCUR:


McCONNELL, P. J.


NARES, J.




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