Filed 2/20/14 P. .v Torres CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065523
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF139470A)
                   v.

HECTOR HUGO TORRES,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Law Offices of Benjamin R. Greene and Thomas W. Casa 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-

*        Before Detjen, J., Poochigian, Acting P.J. and Franson, J.
       Defendant Hector Hugo Torres was convicted by a jury of felony unlawful sexual
intercourse with a minor (Pen. Code, § 261.5, subd. (c))1 based on consensual sexual
intercourse with his first cousin.2 The trial court sentenced him to three years’ felony
probation with one year in county jail and ordered him to register as a sex offender. On
appeal, defendant contends the trial court abused its discretion by ordering him to register
as a sex offender. We will reverse the registration order and remand for reconsideration.
                                    BACKGROUND
       In the summer of 2009, the cousin’s family visited defendant’s family in Texas.
The cousin was 15 years old. Defendant was about seven years older. They had not seen
each other in years and did not really know each other. Defendant had a girlfriend and
two children, and they lived together with defendant’s mother. After two weeks, the
cousin’s family left, but the cousin remained with defendant’s family for the rest of the
summer. A few days after her family left, the cousin went with defendant to a park. He
told her he liked her and was attracted to her. He kissed her. She was shocked and did
not know what to say. When they went back to the house, he told her to act normally so
no one would notice what had happened. The next morning, he came into her room and
woke her up. He took off her pants, pulled down his pants, and put his penis in her
vagina. They were quiet, but when they thought they heard someone, he left the room
and went into the living room with his mother. The cousin was shocked and nervous, but
she acted as though nothing had happened.



1      All statutory references are to the Penal Code unless otherwise noted.
2      Section 261.5, subdivision (c) provides: “Any person who engages in an act of
unlawful sexual intercourse with a minor who is more than three years younger than the
perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170.”



                                             2.
       Defendant got into an argument with his girlfriend, and she left the house with the
children. Defendant then told the cousin he was attracted to her, liked her, did not see her
as a cousin, and wanted to be with her. He told her she could not tell anyone because he
could go to prison. She promised him she would not say anything to anyone. During the
course of the summer, they had sexual intercourse at night while his girlfriend was away
from the house or in the shower. The cousin became attached to defendant and fell in
love with him. At the end of the summer, the cousin went home to Bakersfield. She told
no one what had happened.
       Defendant and the cousin talked or sent messages every day. He told her he loved
her and promised they would run away together someday. He told her he did not love his
girlfriend, although he later told her he was going to marry the girlfriend. The cousin was
sad and frustrated. She was upset that she was just a side interest and she wondered why
defendant would marry the girlfriend when he did not love her. That year, he and the
girlfriend got married.
       The next summer, defendant asked the cousin to come alone to Alabama, where he
and his family had moved. He wanted her to be there with him. She agreed, and
throughout that summer, they had sexual intercourse when the wife was not around. The
cousin loved and trusted defendant. He was her first love. She continued to believe his
promises that he would leave his wife and run away with her. At the end of the summer,
she went home to Bakersfield. She still told no one because she loved him and did not
want anything to happen to him. They continued to speak or send messages every day.
He told her that he wanted to be with her, that he loved her, and that if she cared about
him she would not say anything to anyone.
       The next summer, the cousin did not want to visit defendant, so he and his family
came to Bakersfield. They stayed at the cousin’s house for two weeks. When they all
went to Las Vegas, defendant and the cousin were able to sneak away to have sexual
intercourse when the others were in a casino. After they returned to Bakersfield, they

                                             3.
were together one more time. Defendant served alcohol to make everyone sleepy so they
could be alone. Defendant went back to the cousin’s room and they had sexual
intercourse.3
       After defendant and his family left, the cousin began having mixed emotions about
being with defendant. She loved him, but sometimes she was mad. She started to
understand that their relationship was not going anywhere. She decided she did not want
to continue the relationship and she did not want to continue keeping the secret. She did
not know what to do, so she told the truth to a relative, who then told the cousin’s mother.
The mother called the sheriff. An officer recorded a pretext call from the cousin to
defendant in which he admitted having sex with her.4
                                       DISCUSSION
       Lifetime registration as a sex offender is mandatory for persons convicted of
certain crimes. (§ 290.) “Its purpose is to assure that persons convicted of offenses
requiring registration ‘“‘“shall be readily available for police surveillance at all times
because the Legislature deemed them likely to commit similar offenses in the future.”’”’
[Citation.]” (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.) For persons
convicted of crimes not listed in section 290, the trial court has discretion to impose
lifetime registration pursuant to section 290.006, which provides: “Any person ordered
by any court to register pursuant to the [Sex Offender Registration] 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.”

3      It is this offense, committed in California, that was the basis of the sole count in
this case.
4      The call was played for the jury.



                                              4.
“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, supra, at pp. 78-79, fn. omitted.) “‘In order to make a
discretionary determination as to whether or not to require registration [under section
290.006], the trial court logically should be able to consider all relevant information
available to it at the time it makes its decision .…’ [Citation.]” (Id. at p. 79.)
       In People v. Hofsheier (2006) 37 Cal.4th 1185, the Supreme Court held that to
impose a discretionary registration requirement, 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.” (Id. at p. 1197.)
       In ordering defendant to register pursuant to section 290.006, the trial court stated
only the following:

              “In addition, the defendant will be ordered—there is discretion of the
       Court, but he is ordered to register as a sex offender pursuant to Penal Code
       Section 290 in this matter.”5

5     As defendant points out, the trial court mentioned section 290 here, but the court’s
recognition of its discretion demonstrates it understood it was ordering registration under


                                              5.
       Defendant contends the trial court erred in requiring him to register as a sex
offender under section 290 because his offense was not subject to mandatory registration.
He further argues that under section 290.006, the trial court failed to state its reasons for
the order.
       The People agree that the court failed to state its reasons on the record and
concede that remand is appropriate for the court to do so. The People note the probation
report did not recommend registration, and the probation department assessed defendant
as being a low risk for sexual reoffending. We will reverse and remand.
                                       DISPOSITION
       The order to register as a sex offender is reversed and the matter remanded for the
trial court to reconsider the registration order and state its reasons if it again decides to
order registration. In all other respects, the judgment is affirmed.




section 290.006, not section 290. Similarly, defense counsel argued before sentencing
that defendant’s behavior did not support registration, but counsel urged the court to
show mercy by reducing the offense to a misdemeanor and not ordering registration.
Again, we believe everyone understood that any registration order was discretionary and
would be made pursuant to section 290.006.



                                               6.
