Filed 12/24/14 P. v. Fiset CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049393

         v.                                                            (Super. Ct. No. 10NF2806)

EUGENE ROLAND FISET,                                                   OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed.
                   Stephen M. Vasil, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Kathryn Kirschbaum and Scott Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.
               Defendant Eugene Roland Fiset appeals from an order revoking probation
on grounds he willfully failed to register as a sex offender within five days of his birthday
(Pen. Code, § 290.012, subd. (a))1 and within five days of a move (§ 290.013). The trial
court also found defendant violated his probation by not cooperating in his sex offender
treatment program, but defendant does not directly challenge the latter finding on
appeal.2
               In light of the California Supreme Court holding “the willfulness element
of the [failure to register] offense may be negated by evidence that an involuntary
condition-physical or mental, temporary or permanent-deprived a defendant of actual
knowledge of his or her duty to register[,]” in People v. Sorden (2005) 36 Cal.4th 65
(Sorden), the trial court permitted defendant to present evidence in support of his claim
that cognitive impairment of an unspecified nature deprived him of the actual knowledge
of his duty to register under section 290. The trial court found defendant’s evidence
insufficient to negate the willfulness element of the offense. Defendant challenges the
sufficiency of the evidence to support that finding. However, defendant’s challenge fails
under the applicable standard of review, and we affirm the judgment.
                     FACTS AND PROCEDURAL BACKGROUND
               In September 2010, then 81-year-old defendant was charged with having
committed a lewd act with a child less than 14 years of age (§ 288, subd. (a); count 1) on
June 21, 2009, and two counts of annoying or molesting a child under age 18 (§ 647.6,
subd. (a)(1); counts 2, 3) on September 29, 2009.




       1   All further statutory references are to the Penal Code.

       2
       The trial court found not true allegations defendant possessed photographic
equipment in violation of another term of his probation.

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              According to testimony at the preliminary examination, during a Father’s
Day 2009 celebration at defendant’s home, he took his then six-year-old great-
granddaughter into a tent pitched in his backyard and repeatedly tried to pull her pants
down, and he touched and squeezed her vaginal area over her clothes. Then, he told her
not to tell anyone what had happened. During roughly the same time period, defendant
sent numerous letters to two teenage girls, some of which expressed defendant’s desire to
marry the girls and have sex with them.
              Following the preliminary hearing, defendant pled guilty to counts 1 and 2
on the condition count 3 be dismissed and defendant receive a grant of probation. The
factual basis for the plea states: “In Orange County, California, on [June 21, 2009], I did
willfully and unlawfully commit a lewd [and] lascivious act upon the body with Jane Doe
[No.] 1, my great granddaughter who was under the age of 14, [and] I did this with the
intent to arouse[,] appeal [and] to gratify my sexual desires. [¶] Also, between September
29, 2009 [and] January 3, 2010, I did unlawfully annoy/molest Jane Does [Nos.] 2 [and]
3, who were both under 18 years old.”
              The trial court placed defendant on probation for five years with various
terms and conditions, including that he serve 365 days in jail, pay a fine and restitution,
maintain lifetime registration as a sex offender (§ 290), cooperate with his probation
officer, stay away from minors and places minors congregate, not possess any type of
photographic equipment without permission, enroll and complete an outpatient or
residential sex offender treatment program, and obey all laws.
1. Probation Violation Background
              In February 2013, the probation department filed a petition for revocation
of probation, alleging defendant failed to cooperate with his probation officer in his plan
of psychiatric treatment or counseling after he was terminated from sex offender
treatment program for his unwillingness to cooperate with therapy, and that he possessed
a cell phone camera without permission.

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                 According to the probation officer’s affidavit, defendant’s cell phone was
searched during an office visit and found to have a camera feature. Defendant claimed
the phone belonged to someone else, although he admitted putting a piece of black tape
over the lens aperture. The phone was confiscated, but defendant refused to sign a
property slip.
                 The affidavit also stated defendant had been “terminated from sex offender
treatment for violation of treatment guidelines due to an unwillingness to cooperate with
therapy and refus[al] to take any responsibility for any sexual abuse.” In fact, the
probation officer reported defendant had been disruptive and uncooperative, and had
stated, “My granddaughter and daughter are both liars and will be punished by God for
trying to steal my house and money by making up these charges of sexual abuse, I never
did anything and I will never cooperate by saying I did, all those kids who said I did
something are liars.” Defendant denied the allegations in the petition and the trial court
set a date for a probation violation hearing.
                 While defendant was awaiting his hearing date, a second revocation petition
was filed. The petition alleged defendant violated the law by failing to update his annual
sex offender registration and by not registering within five days of a recent move and his
birthday. Defendant denied these allegations too, and the trial court held a combined
contested revocation hearing.
2. Probation Violation Hearing
                 a. Prosecution’s Case
                 Orange County licensed clinical social worker Eduardo Rendon testified
that defendant had enrolled in his mandatory two-year treatment for sex offenders in May
2012 pursuant to a condition of his probation. However, defendant was terminated from
the program in January 2013. According to Rendon, an important tool in preventing
relapses in sex offenders is their willingness “to take responsibility for their offenses and
develop a plan to prevent future offenses . . . .” However, Rendon testified defendant

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was “very difficult, very uncooperative,” and that no matter how many times Rendon
emphasized the need for defendant to take responsibility for his crimes, defendant
refused. To the contrary, defendant accused his victims and their families of
manufacturing his crimes in an effort to take his property and money.
              Rendon also testified defendant was prompt for group sessions, always paid
his $20 fee for class, and always had appropriate personal hygiene and dress. Rendon
admitted giving defendant better interim reviews than he probably deserved because, as
Rendon put it, he was “attempting to work with [defendant] to keep him in the program.”
However, Rendon also stated he never noticed defendant have memory challenges, with
the exception of defendant’s claim to not have molested his victims, nor did Rendon ever
suspect defendant might have dementia.
              Orange County Probation Officer Leobardo Duran testified he was
defendant’s assigned probation officer from August 2012 through April 2013. Duran
indoctrinated defendant into the terms and conditions of his probation, including the
requirement to cooperate in treatment and the section 290 registration obligations.
              Duran testified defendant came to his probation department office every
other week from August 2012 to April 2013. In fact, Duran could not recall a single
instance when defendant did not appear for his appointment.
              In November 2012, defendant reported to Duran’s office. A search of his
person yielded a cell phone, and Duran noticed the phone had a camera feature.
Defendant’s probation included a prohibition against possession of photographic
equipment. The camera lens had a piece of black tape covering the aperture, and there
were no stored pictures. But according to Duran, defendant complied with his annual re-
registration requirement in 2012. Duran did not remind defendant of his duty to re-
register on his birthday in 2013, but Duran did explain the requirement during his initial
indoctrination.



                                             5
              On April 29, 2013, Duran met defendant and Michael Rodriguez, a friend
from defendant’s church. Defendant told Duran he had moved, although defendant could
not say exactly what address he moved to, he did correctly identify the street, and with
Rodriguez’s assistance, defendant remembered that the date of his move was April 21,
eight days before the appointment. Duran asked defendant if he had registered with the
police as required by the terms of his probation, and defendant said that he had.
However, when Duran asked for proof, defendant could not provide any. After a review
of his records, Duran realized defendant also failed to register within five days of his
February 1 birthday in 2013.
              Duran admitted defendant’s prior probation officer reported defendant was
“difficult and frustrating, he’s nearly deaf and not in touch with reality[.]” The probation
officer had also questioned whether defendant had “mild retardation, handicap, or illness
interfering with functioning.” In fact, in July 2012, defendant’s former probation officer
reported defendant needed more care and suggested he move to a board and care facility.
              b. Defense Evidence
              Defendant called Guadalupe Rivera, a family friend of 30 years, who
testified that she started helping defendant when her own son rented a room from him in
April 2012. Rivera testified she took defendant to all his probation appointments and
completed his paperwork, including his sex offender registration, and that she helped him
follow up with his various appointments. When asked by defense counsel if it appeared
defendant “had difficulty understanding what was being asked of him,” Rivera replied,
“He don’t know what’s going on.”
              Rivera also testified to defendant’s memory challenges, which she tried to
address by purchasing a big calendar and writing down his scheduled appointments. She
said, “He forget [sic] everything.” In Rivera’s opinion, defendant’s memory had gotten
“worse in the last year.” She stated he frequently called her in the middle of the night to



                                              6
take him to his probation meetings. She assumed defendant “don’t know the day he’s
leaving or what time it was.”
               Bruce Fissette, defendant’s biological son, testified that after his father’s
release from custody in April 2012, he started having problems remembering to do things
like clean himself after using the restroom, or how to operate a microwave. He also
testified his father seemed agitated and paced the floor. Fissette found an apartment for
his father, but due to the compromised safety of the area and expense, he decided to put
his father in a board and care facility. Defendant did not like the first facility they looked
at, and he was evicted from a second facility after being there for only two days, but
defendant stayed in the third board and care facility for several months. Fissette also
testified his father often complained he was not being fed, although that turned out not to
be the case.
               Dr. Kara Cross, a licensed clinical psychologist, testified she interviewed
defendant for three hours on August 19, 2013. She diagnosed defendant with cognitive
disorder not otherwise specified. However, she also testified, “without the medical
evidence, we couldn’t say that it is dementia Alzheimer’s type or vascular dementia or
any other medical terminology.” In her opinion, defendant could have suffered from this
cognitive disorder as far back as August 2012.
               When Cross tried to conduct a standard test with defendant, he was unable
to answer some of the questions. She did not get a good history and physical because
defendant did not seem able to recall historical information. Cross rated defendant’s
ability to understand and use common English words as borderline, which was below
average but not impaired. The results of other tests indicated short-term memory
problems and difficulties breaking down visual images and sorting through visual
information. Cross ordered an MRI to help her diagnose defendant. While he initially
agreed to undergo an MRI, defendant later refused to cooperate with medical personnel
and he did not submit to the test.

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               On the other hand, Cross found no evidence defendant was malingering.
She testified, “[defendant] has difficulty with several cognitive skills including abstract
reasoning, immediate recall, planning, retaining information in order to work with it in
working memory, being aware of newly learned pieces of information, being able to
execute plans properly because of lack of retention of information so he can execute a
plan, and visual spatial difficulties as a part of the cognitive disorder.” Cross stated
defendant’s impairment was severe, but not very severe or profound. Although Cross
could not state what was causing the problem, she did testify defendant had “memory
difficulties . . . cognitive deficits that appear fairly global.”
               However, Cross agreed if an individual knew they had an appointment
somewhere and had to plan to call a friend to arrange for transportation that would not be
acting consistently with someone having a cognitive deficit.
3. Trial Court Ruling
               Following a contested hearing, the trial court found not true the allegation
defendant possessed photographic equipment. With respect to the allegations defendant
violated probation by not cooperating with the sex offender treatment program, and by
willfully failing to register within five days of his birthday and five days after his most
recent move, the trial court found sufficient evidence defendant violated his probation.
               The court stated in its ruling, “I looked long and hard at the evidence. I
looked long and hard at that case. It’s a very interesting case, that Sorden case, because
what it’s – it basically allows for the defense to put forward evidence to attack the
willfulness element of section 290 which is a general intent crime. It requires actual
knowledge of a duty to register. [¶] So the high court held that that type of evidence is
relevant on the issue of actual knowledge. And they held specifically a person may suffer
from an involuntary condition so disabling as to rob him of knowledge of his registration
obligations under [section] 290. [¶] But they also state that when allowing for the
defense to present evidence, which I did, they indicated that it must be substantial

                                                 8
evidence of an involuntary condition – temporary or permanent, physical or mental – that
he lacked actual knowledge of his duty to register. [¶] And I don’t find that the defense
has presented substantial evidence to show that. I find the People have put forward other
evidence that defendant had knowledge, actual knowledge of his duty to register. He had
done it in the past, and he had done it recently . . . . [¶] . . . [¶] Yes. January 8. And
looking at all the People’s exhibits of his previous registration. [¶] So it’s clear to the
court that he had actual knowledge of his duty to register. He had done it before,
complied with it. I don’t think he was happy with it, which is not uncommon with people
that have a lifetime registration requirement under [section] 290. [¶] But the test for me
was whether or not there’s substantial evidence of an involuntary condition so disabling
as to rob him of knowledge of his registration obligations, and I don’t find that that is
present. Yes, there appears to be some issues that he’s having some memory troubles and
things of that nature. And that’s supported by testimony of Ms. Rivera and then the
expert testimony of Dr. Kara Cross. [¶] But at best, Dr. Cross could only offer the
opinion that his pattern of difficulties was consistent with cognitive dysfunction. And she
termed it as cognitive NOS and indicated that she would need more. And there was not
any evidence presented of more. There was no medical evidence, CT scan, MRI, et
cetera, which might elevate it to the substantial evidence requirement. And I just don’t
have that.”
              The court further noted defendant “is largely functional. He’s intelligent.
He’s responsive. He made all of his classes. I think some 40 classes he never missed.
Yes, he might have had some assistance in getting there, but he coped with that. . . .
[¶] . . . [¶] And he never missed – I believe he never missed a probation meeting. If so,
there was only one. . . . So he reported as required. He did everything else as required.
So to come in here now and say, well, he had a cognitive dysfunction with his memory so
he shouldn’t be held accountable, that’s simply not enough.”



                                               9
              The trial court modified and “reinstate[d]”3 probation on condition that
defendant serve additional time in jail, maintain his current residence at a board and care
facility, and submit to continuous electronic monitoring. The trial court also struck the
condition that defendant complete a sex offender treatment program.
                                       DISCUSSION
              Defendant challenges the sufficiency of the evidence to prove he had actual
knowledge of, and willfully violated, his duty to register as a sex offender. Section
1203.2, subdivision (a) authorizes a trial court to revoke the supervision of a person
released on probation “if the interests of justice so require and the court, in its judgment,
has reason to believe from the report of the probation . . . officer or otherwise that the
person has violated any of the conditions of his or her supervision.”
              A trial court is accorded “very broad discretion in determining whether a
probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Although a probation violation need only be proven by a preponderance of the evidence
(Id. at p. 447), when the sufficiency of the evidence supporting a trial court’s probation
revocation decision is challenged on appeal, we apply the substantial evidence standard
of review.
              Under the substantial evidence standard of review, “great deference is
accorded the trial court’s decision, bearing in mind that ‘[p]robation is not a matter of
right but an act of clemency, the granting and revocation of which are entirely within the
sound discretion of the trial court.’” (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
We view the evidence in the light most favorable to the judgment, and we do not reweigh
the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.
(See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d
294, 314.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive

       3The trial court’s use of the word “reinstate” implies the trial court revoked
defendant’s probation.

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province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) Only in a
very extreme case should a reviewing court interfere with a trial court’s discretion to
revoke probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.)
              In order to establish a failure to register, the prosecutor must show the
failure was willful. (§ 290.018, subd. (a).) In People v. Garcia (2001) 25 Cal.4th 744,
752 the California Supreme Court held the willfulness element of the statute requires
actual knowledge of the duty to register and that “[a] jury may infer knowledge from
notice, but notice alone does not necessarily satisfy the willfulness requirement.” And, as
noted above, in Sorden, supra, 36 Cal.4th at page 69, the California Supreme Court held
“that the willfulness element of the offense may be negated by evidence that an
involuntary condition – physical or mental, temporary or permanent – deprived a
defendant of actual knowledge of his or her duty to register.”
              In Sorden, the issue was the admissibility of evidence in support of the
defendant’s claim his severe depression negated his actual knowledge. Defendant made
an offer of proof his friends would testify that “he was depressed because (1) his mother
had cancer; (2) the mother of his son, in order to terminate his visitation rights, had
falsely accused him of being abusive to the boy; (3) he had broken up with his girlfriend;
and (4) his dog had died.” (Sorden, supra, 36 Cal.4th at p. 70.) “[D]efense counsel said
the testimony of defendant’s friends, as to ‘what he was going through at the time,’
would lay the foundation for an expert witness who would testify (1) that defendant was
‘showing signs of clinical depression,’ and (2) how depression affects ‘concentration and
memory.’” (Ibid.) The trial court ruled in limine that the evidence was not admissible.
(Ibid.) The Court of Appeal reversed and the Supreme Court granted review.
              The Supreme Court recognized “a person may suffer from an involuntary
condition so disabling as to rob him of knowledge of his registration obligations under
section 290. Therefore, in order to avoid any due process problems . . . defendant
charged with [a] violation of section 290 may present substantial evidence that, because

                                             11
of an involuntary condition–temporary or permanent, physical or mental– he lacked
actual knowledge of his duty to register.” (Sorden, supra, 36 Cal.4th at p. 72.) The high
court concluded that the defendant had not proffered such evidence. “There is no
question but that he knew of his duty to register. He simply claimed his depression made
it more difficult for him to remember to register. However, life is difficult for everyone.
As a society, we have become increasingly aware of how many of our fellow citizens
must cope with significant physical and mental disabilities. But cope they do, as best
they can, for cope they must. So, too, must defendant and other sex offenders learn to
cope by taking the necessary measures to remind themselves to discharge their legally
mandated registration requirements. It is simply not enough for a defendant to assert a
selective impairment that conveniently affects his memory as to registering, but otherwise
leaves him largely functional.” (Ibid.)
              The Supreme Court also stated the “question whether a defendant has
proffered evidence sufficiently substantial to go to the jury under the standard [it]
announce[d] today is a question confided to the sound discretion of the trial court.”
(Sorden, supra, 36 Cal.4th at p. 73.) The defendant in Sorden proffered both lay and
expert evidence that supported his defense that his depression affected his ability to
remember his duty to register. The Supreme Court concluded the evidence offered did
not rise to the level required to negate the element of willfulness, and the trial court did
not abuse its discretion when it refused to admit evidence related to the defendant’s
depression. (Id. at pp. 71-74.) The court emphasized that “[o]nly the most disabling of
conditions,” such as “[s]evere Alzheimer’s disease” or “general amnesia induced by
severe trauma” would qualify under the standard it announced. (Id. at p. 69.)
              According to the evidence presented here, defendant knew of his duty to
register within five days of a move and of his birthday. He performed both tasks in 2012.
True, defendant’s friend and son testified he had trouble remembering things, and they
clearly believed he suffered impairment, but the trial court concluded defendant coped

                                              12
with these deficits by eliciting help. And, as Cross conceded, the ability to understand
certain obligations and plan for assistance to meet those obligations are not actions
consistent with someone having severe cognitive deficit.
              As noted, we do not reweigh evidence or the credibility of witnesses.
Evidence of defendant’s previous registration and regular attendance at required classes
and appointments counterbalances his reports of generalized cognitive deficits. At most,
the evidence shows defendant’s memory loss was intermittent. But an intermittent short-
term memory loss is akin to forgetfulness and mere forgetfulness does not excuse
compliance with the statutory requirements. (People v. Barker (2004) 34 Cal.4th 345,
348, 358-359.)
              As Sorden specified, to excuse the failure to register, the defendant’s
mental condition must “nullify[ ] knowledge of one’s registration obligations.” (Sorden,
supra, 36 Cal.4th at p. 73.) Whatever the extent of defendant’s intermittent cognitive
deficits, the evidence shows that at times he is completely functional. The trial court
concluded that whatever the precise nature of defendant’s impairment, it did not meet the
strict standard of “the most disabling of conditions.” (Id. at p. 69.) “It is simply not
enough for a defendant to assert a selective impairment that conveniently affects his
memory as to registering, but otherwise leaves him largely functional.” (Id. at p. 72.) As
in Sorden, the defendant “knew of his obligation to register and, had he taken it to heart,
he could have managed to discharge it.” (Id. at p. 69.) Moreover, under Sorden,
defendant is required to cope with his intermittent short-term memory loss by taking the
necessary measures to remind himself to discharge his legally mandated registration
requirement. (Id. at p. 72.)




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                                     DISPOSITION
            The order is affirmed.




                                              THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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