Filed 6/23/15 P. v. Slate CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040117
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. EE907264)

             v.

EDWARD SLATE,

         Defendant and Appellant.



                                                   INTRODUCTION
         Appellant Edward Slate was convicted of seven counts of sex crimes against a
minor, and the sentencing court ordered him to register as a sex offender. He filed a
petition for writ of habeas corpus in the Santa Clara County Superior Court seeking relief
from the ordered registration. The court denied the habeas petition as it pertained to
count seven, a count for which registration was mandatory. The court granted the habeas
petition as it pertained to counts one through six—counts for which registration was
discretionary—and ordered a new hearing to determine whether Slate should be required
to register on those counts. At the hearing, the court made findings pursuant to Penal
Code section 290.0061 and ordered Slate to register as a sex offender on each of the six
counts.


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             Subsequent unspecified statutory references are to the Penal Code.
       Slate now appeals from the order requiring him to register as a sex offender on
counts one through six. He preliminarily asserts that the court lacked authority to order
registration on counts one through six because registration was not imposed on those
counts at the original sentencing hearing. He then contends that the court erred in
ordering registration on counts one through six because there was no showing that he was
likely to commit sex offenses in the future.2 As set forth below, we will affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND
       In 2008, 41-year-old Slate developed a relationship with 15-year-old Jane Doe.
Jane Doe was a high school student, and Slate was a teacher at her high school. Slate and
Jane Doe exchanged thousands of text messages, frequently spoke to each other on the
phone, and spent time together at Jane Doe’s home when Jane Doe’s parents were not
present. By February 2009, Jane Doe spent so much time with Slate that she stopped
doing anything with her friends. Jane Doe’s parents repeatedly told Slate to avoid
contact with Jane Doe, but Slate continued to pursue a relationship with Jane Doe. Slate
informed Jane Doe that her parents told him to stay away from her, and Jane Doe’s
relationship with her parents became strained.


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          In the appeal, Slate also asserts that mandatory sex offender registration for
count seven is an equal protection violation. Slate brought this claim in his habeas
petition below, and the superior court denied the petition as it pertained to count seven.
Because the superior court denied the petition as it pertained to count seven, Slate cannot
bring an equal protection challenge regarding count seven on appeal. (See In re
Clark (1993) 5 Cal.4th 750, 767, fn. 7 [“no appeal lies from the denial of a petition for
writ of habeas corpus,” and “a prisoner whose petition has been denied by the superior
court can obtain review of his claims only by the filing of a new petition in the Court of
Appeal”].) We therefore will not address Slate’s equal protection argument in this
opinion.
       Slate has also filed a petition for writ of habeas corpus in this court, and in that
petition he raises the same equal protection challenge to mandatory registration for count
seven. This court ordered the habeas petition to be considered with the appeal. By
separate order of this date, we deny the petition for writ of habeas corpus.
                                             2
       Police interviewed Jane Doe on August 23, 2009. She stated that she and Slate
began kissing “intimately” in February or March 2009, when she was 16 years old. She
stated that she and Slate engaged in a sexual relationship when she was 17 years old. She
explained that Slate penetrated her vagina with his finger, orally copulated her, and had
anal sex with her. During a police interview on August 24, 2009, Slate admitted that he
had engaged in anal sex and oral copulation with Jane Doe.
       On August 26, 2009, the Santa Clara County District Attorney filed a felony
complaint charging Slate with two counts of oral copulation with a minor (§ 288a,
subd. (b)(1); counts 1 and 4), two counts of sexual penetration of a person under the age
of 18 (§ 289, subd. (h); counts 2 and 5), two counts of sodomy with a person under
18 years of age (§ 286, subd. (b)(1); counts 3 and 6), and one count of annoying or
molesting a child (§ 647.6, subd. (a)(1); count 7). On February 10, 2010, Slate pleaded
no contest to all seven counts charged in the complaint.
         At the sentencing hearing on March 25, 2010, the trial court sentenced Slate to
two years eight months in prison and ordered him to register as a sex offender. The court
did not specify the counts for which it was imposing registration, and it did not state any
reasons for ordering registration. The court simply stated, “I’m ordering you to register
under Section 290 of the Penal Code and to comply with Section 290.85 of the Penal
Code.”
       On December 19, 2012, Slate filed a petition for writ of habeas corpus in the Santa
Clara County Superior Court. In the habeas petition, Slate urged the court to vacate the
order requiring him to register as a sex offender. He argued that imposition of
registration for count seven—an offense for which registration was mandatory—
constituted an equal protection violation. He also asserted that the sentencing court’s
failure to make section 290.006 findings for counts one through six—offenses for which



                                             3
registration was discretionary—established that the sentencing court “did not intend to
impose and in fact did not impose” registration on counts one through six.
       On January 10, 2013, the court issued an order to show cause “only as to counts 1
through 6.” The court explained that a review of the transcript from March 25, 2010
suggested that the sentencing court ordered sex offender registration for counts one
through six without making the findings required by section 290.006. The court denied
relief on count seven, explaining that Slate had failed to show mandatory sex offender
registration for count seven constituted an equal protection violation.
       In the return, the district attorney conceded that Slate was entitled to a new
hearing, conducted in accordance with section 290.006, to determine whether sex
offender registration should be imposed for counts one through six.
       On March 21, 2013, the court granted Slate’s petition for writ of habeas corpus
“[a]s to Counts 1 through 6.” It ordered the matter returned to the original sentencing
judge for a hearing to determine whether registration should be imposed under
section 290.006 for counts one through six.
       The court, presided over by the judge who originally sentenced Slate, held
hearings on the matter. At the hearings, the court explained that it had intended to
impose sex offender registration “on all counts” when it sentenced Slate in 2010. It
stated that it believed it had imposed registration on all seven counts in 2010. The court
noted that it was a “mistake” if it failed to “clearly” make section 290.006 findings at the
sentencing hearing in 2010. The court proceeded to make express section 290.006
findings. It described the facts of Slate’s crimes and found that “it was clear that [Slate]
committed the violations for the purposes of his own sexual gratification.” The court
emphasized that it was appropriate to impose registration for counts one through six,
explaining in part: “[Slate’s] abnormal sexual interest in a 15-year-old student, the large
[age] disparity between him and the victim, his monopolization of her time and success in

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isolating her from her friends and family, his wanton disregard for, and undermining the
victim’s parents’ authority over the child, the scheme to convince the victim that her
parents did not care for her, and his exploitation of his position as a teacher at the school
the victim attended all weigh in favor of the court retaining [Slate’s] registration
requirement under the discretionary authority of Penal Code section 290.006. [¶] These
factors indicated a great likelihood that [Slate] acted based on the victim’s youth. His
behavior demonstrated that he was a sexual predator, and that’s the finding.”
        On July 12, 2013, the court entered an order requiring Slate to register as a sex
offender pursuant to section 290 et seq. for counts one through six. Slate now appeals
from that order.
                                        DISCUSSION
        Slate urges us to vacate the 2013 order requiring him to register as a sex offender
on counts one through six. As explained below, Slate has failed to show error, and we
will affirm.
Legal Framework: Mandatory and Discretionary Sex Offender Registration
        Section 290 makes sex offender registration mandatory for persons convicted of
specified crimes. (§ 290, subds. (b) and (c); Lewis v. Superior Court (2008) 169
Cal.App.4th 70, 78 (Lewis).) The offense in count seven— section 647.6,
subdivision (a)—is a crime specified in section 290, subdivision (c), and a defendant
convicted of violating section 647.6, subdivision (a) “shall be required” to register as a
sex offender. (§ 290, subds. (b) and (c).) “All defendants who are convicted of violating
section 647.6, subdivision (a), are subject to mandatory lifetime registration as sex
offenders, pursuant to section 290.” (People v. Brandao (2012) 203 Cal.App.4th 436,
441.)
        Section 290.006 gives the trial court discretion to order sex offender registration
for crimes not subject to mandatory registration. That section states: “Any person

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ordered by any court to register . . . 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.” (§ 290.006.)
       Here, it is undisputed that the offenses in counts one through six are not included
in section 290, subdivision (c) and are not subject to mandatory registration under section
290. Thus, registration could only be imposed on counts one through six pursuant to
section 290.006.
       When ordering discretionary sex offender 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.’ ” (People v. King (2007) 151 Cal.App.4th 1304,
1308 (King).) “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.” (People v. Hofsheier (2006)
37 Cal.4th 1185, 1197, overruled on another point in Johnson v. Department of Justice
(2015) 60 Cal.4th 871.)
       In determining whether to exercise its discretion to order registration pursuant to
section 290.006, the trial court may “ ‘consider all relevant information available to it at
the time it makes its decision.’ ” (Lewis, supra, 169 Cal.App.4th at p. 79.) Because “the
purpose of sex offender registration is to keep track of persons likely to reoffend” a court
imposing registration pursuant to section 290.006 must consider whether “the defendant



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is likely to commit similar offenses—offenses like those listed in section 290—in the
future.” (Id. at p. 78.)
       The decision to impose registration pursuant to section 290.006 lies within the trial
court’s 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.)
Registration was Imposed on Counts One Through Six at Sentencing in 2010
       Preliminarily, Slate contends that the 2013 order requiring sex offender
registration on counts one through six was unlawful because registration was not imposed
on those counts at the original sentencing hearing in 2010. His argument is premised on
the assumption that, because the court did not make section 290.006 findings at the
original sentencing hearing, the court imposed only mandatory registration on count
seven and did not impose discretionary registration on counts one through six. Based on
his assumption that registration was not imposed on counts one through six at the original
sentencing hearing, he urges us to conclude that the court lacked authority to impose
registration on those counts during the habeas proceedings in 2013.
       The record does not support Slate’s argument. At the original sentencing hearing
in 2010, the court stated, “I’m ordering you to register under Section 290 of the Penal
Code and to comply with Section 290.85 of the Penal Code.” Although the court did not
make findings pursuant to section 290.006, the court never stated that it was imposing
registration only on count seven and did not specify any particular counts for which it
was imposing registration. At the 2013 hearings following the grant of Slate’s habeas
petition, the court clarified that it had imposed registration on all counts at the original
sentencing hearing but had failed to make express section 290.006 findings for counts
one through six. At the 2013 hearings, the court repeatedly stated that it intended to
impose sex offender registration on counts one through six at the original sentencing

                                               7
hearing, the court noted that the probation report—which recommended sex offender
registration on counts one through six—had been “incorporated by reference into the
record” at the original sentencing hearing, and the court explained that it was a “mistake”
if it had failed to “clearly” make section 290.006 findings at the original sentencing
hearing. The record thus reveals that the court imposed registration on counts one
through six at the original sentencing hearing, but it failed to make the findings required
by section 290.006. Contrary to Slate’s assertion, the record does not show that the court
declined to impose registration on counts one through six at the original sentencing
hearing. Slate therefore has failed to demonstrate that the court lacked authority to
reorder registration, in accordance with the requirements of section 290.006, on counts
one through six during the habeas proceedings. (See generally People v. Picklesimer
(2010) 48 Cal.4th 330, 342 [noting that the remedy for improper imposition of sex
offender registration is remand for a new hearing, conducted in accordance with section
290.006, to determine whether registration should be imposed].)
       Slate contends that People v. King, supra, 151 Cal.App.4th 1304 requires us to
conclude that the court did not impose registration on counts one through six at the
original sentencing hearing. We are not persuaded. King held that lifetime sex offender
registration was not imposed where the trial court imposed sex offender registration as a
condition of probation and “specifically limited the registration requirement to the five-
year period during which appellant was on probation.” (King, supra, 151 Cal.App.4th at
pp. 1306-1308.) King is of no import to the case at hand, a case in which the sentencing
court expressly ordered lifetime sex offender registration without stating any limitations.
Slate’s reliance on King is unavailing.
The 2013 Order was Not an Abuse of Discretion
       Slate next contends that the 2013 order requiring registration on counts one
through six must be vacated because there was no showing that he had “a desire or

                                             8
compulsion to engage in prohibited sexual relations or that he was likely to commit sex
offenses in the future.” He emphasizes that the court “failed to consider evidence of [his]
behavior since the time of the original sentencing hearing.” Slate has failed to show an
abuse of discretion.
       The court made a lengthy record when it issued the 2013 order requiring Slate to
register as a sex offender. The court described the facts of Slate’s crimes and found it
was “clear” that Slate committed the crimes for “purposes of his own sexual
gratification.” The court noted that the purpose of sex offender registration is to ensure
that individuals likely to commit sex offenses are subject to police surveillance, and it
then described circumstances suggesting that Slate was likely to commit sexual offenses
against minors in the future. The court explained that Slate had an “abnormal sexual
interest” in the victim when she was only 15 years old. Slate was over 20 years older
than victim, and that court noted that Slate utilized this age disparity and “his position of
trust and authority as a teacher” in order to achieve his sexual goals with the victim.
Slate “isolated the victim from her friends and her own family” by “monopolizing her
time” and “manipulating her emotions,” and the court found this was all part of a
“scheme to convince” the victim to have sexual relations with him. The court explained
that Slate “wantonly disregarded” the victim’s parents’ requests to stay away from the
victim, and Slate “continued his contact with the victim, including anal sex and oral sex
in the victim’s home when the parents were not there.” The court found it “disturbing”
that Slate “consistently minimizes his criminal behavior by suggesting that the victim
sought the affection and physical relationship.” The court found it “equally disturbing”
that Slate admitted his sexual relationship with the victim fed his ego. The court
concluded that Slate was a “sexual predator” who “acted based on the victim’s youth.”
       Although the foregoing circumstances primarily pertained to the crimes of
conviction, they nonetheless suggested that Slate had an abnormal sexual interest in

                                              9
underage girls, that Slate was unable to suppress that sexual interest, that Slate did not
appreciate the criminality of sexual contact with minors, and that Slate was thus likely to
commit sexual offenses against minors in the future. (See generally In re Petra B. (1989)
216 Cal.App.3d 1163, 1169 [past conduct is a good predictor of future behavior].) We
therefore must conclude that the court did not abuse its discretion in issuing the 2013
order requiring Slate to register as a sex offender on counts one through six. (See
generally Lewis, supra, 169 Cal.App.4th at p. 78 [sex offender registration is appropriate
where the defendant is likely to commit sexual offenses against minors in the future].)
       Slate contends that the 2013 registration order was an abuse of discretion because
his behavior after the 2010 sentencing hearing established that he was unlikely to
reoffend. He emphasizes that there was no evidence that he committed new sex offenses.
Slate’s argument is not persuasive. The circumstances the court identified in issuing the
2013 registration order strongly suggested that Slate was likely to reoffend. The
circumstance that Slate committed no new sex offenses during the short time between the
original sentencing hearing and the habeas proceedings does not alter our conclusion.
Slate has failed to show that the court abused its discretion in issuing the 2013 order
requiring him to register as a sex offender on counts one through six.
                                       DISPOSITION
       The order requiring Slate to register as a sex offender on counts one through six is
affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           WALSH, J.*




      *
         Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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