Filed 12/16/14 P. v. Freeman 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C075529

                   Plaintiff and Respondent,                                   (Super. Ct. No. P12CRF0242)

         v.

DAVID ROBERT FREEMAN,

                   Defendant and Appellant.




         Defendant David Robert Freeman was a 34-year-old high school teacher who
repeatedly initiated sexual intercourse with and oral copulation of his 17-year-old student
(the victim), whom he also had asked to be his children’s babysitter. Defendant pled no
contest to nine counts of unlawful sexual intercourse with a minor who was more than
three years younger (Pen. Code,1 § 261.5, subd. (c)) and four counts of orally copulating




1        All further section references are to the Penal Code.

                                                             1
a minor (§ 288a, subd. (b)). The court sentenced defendant to three years and eight
months in prison and ordered him to register as a sex offender.
       This appeal challenges the sex offender registration requirement in four respects.
One, defendant contends there was insufficient evidence to require sex offender
registration. Two, defendant contends the trial court failed to take the two required steps
for imposing a discretionary sex offender registration requirement, namely “(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. Hofsheier (2006)
37 Cal.4th 1185, 1197 (Hofsheier).) Three, to the extent the second contention is
forfeited, defendant contends counsel was ineffective. And four, the trial court erred in
not allowing defendant a jury trial on the factual predicates necessary for imposition of
discretionary sex offender registration.
       We disagree with defendant. One, there was sufficient evidence to require sex
offender registration. Two, defendant forfeited his contention that the court failed to take
the required two steps. Three, defense counsel was not ineffective because her failure to
object did not prejudice defendant. And four, regardless of whether a jury trial is
required for the factual predicates required for discretionary registration, any error was
harmless because we conclude beyond a reasonable doubt that a jury would have found
those factual predicates true. We therefore affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
                                               A
                                           The Crimes
       Defendant met the victim when he was her high school physical education teacher.
At the end of the victim’s sophomore year when she turned 16, defendant established a
relationship with her outside of school by asking her to babysit his children. At the
beginning of the victim’s senior year, defendant made her his teaching assistant. When

                                               2
the victim was no longer eligible to be his teaching assistant in January 2009, defendant
“set [it] up” so the victim would be enrolled in another teacher’s physical education class
but would act as a teaching assistant for defendant. During that time, the victim would be
“just hanging out with [defendant].”
       A month later, in February 2009, defendant began flirting with victim, telling her
in text messages that she was “beautiful” and “had a nice ass.”
       In the first or second week of March 2009, defendant initiated sexual contact with
the victim. The victim had just finished babysitting defendant’s children. As the victim
was walking out of defendant’s house, he grabbed her bottom, turned her around, put her
“against a wall,” and kissed her. He also touched her vagina over her dress and then over
her underwear. This lasted about 20 minutes, after which the victim left in her car. The
victim found defendant’s conduct unexpected, unwanted, and “so inappropriate.” As she
was driving away, defendant texted her “he couldn’t resist” “[b]ecause [she] was so
beautiful” and asked her not to tell anybody. He texted her again later that night, blaming
his behavior on having too much to drink, although the victim had not smelled alcohol on
defendant’s breath. The next day at school, defendant said “he was sorry for putting [the
victim] in that position, [and] it wouldn’t happen again.”
       Later on in text messages, defendant told the victim he wanted to have sex with
her when she turned 18. He told her when she turned 18, he “could get in less trouble”
and was worried “that he would lose his job, he would go to jail, [and] he would lose his
children.” He texted her messages in which he “counted down” the days until her 18th
birthday, which was at the end of April 2009. He also told her he was going to leave his
wife for her.




                                             3
       Around the middle of March, defendant initiated sex with the victim. It was
afternoon and the victim was babysitting defendant’s younger daughter, who was asleep.2
Defendant unexpectedly came home early and, without saying a word, walked over to the
victim, lifted up her dress, pulled down her underwear, and orally copulated her.
Defendant then led the victim to the son’s room where he had intercourse with her. He
then asked her not to tell anybody and to take the “morning after pill.” The victim
responded that she was not 18 yet and could not get it, so she would have to ask her
friend who worked at a pharmacy to get it for her.
       After having sex this first time and until the victim’s 18th birthday in April,
defendant continued having sex with the victim at his house three to four times per week.
Sometimes defendant also orally copulated the victim. Once, during this time period,
defendant asked the victim to spend the night at his house while his wife was away. He
had the victim park her car in the garage, and he put tarps over the windows in the garage
to conceal her car from the neighbor’s view. They had vaginal and oral sex continuously
through the night.
       Defendant continued pursuing a sexual relationship with the victim after she
turned 18. The victim ended the relationship in June 2009 when two classmates who
graduated with the victim saw defendant and the victim kissing on the campus of a
middle school. The news “spread like wildfire,” and her mother confronted her. The
victim denied it at first to “protect[] [defendant] because he was asking [the victim] to.”
She later told her mother that they had sex when she turned 18, again to “protect[]
[defendant.]”




2      The older son was at school.

                                              4
       A month later, in July 2009, the victim finally told her mom the truth because
defendant “wouldn’t leave [the victim] alone.” He left notes on her car, gave her his new
phone number, and she “couldn’t take it anymore” because she was “trying to move on.”
       Over two years later, in November 2011, the victim told police what had
happened, but only because she had just been approached about her relationship with
defendant by the administration of her former high school where defendant still was a
teacher.
       In January 2012, the victim made a pretext phone call to defendant. The victim
said that the school district had called her and set up a meeting for tomorrow, and she
asked defendant what she should say. He “beg[ged] [her and her family] to say . . . it was
. . . an incident that happened in July of 2009[3] after [she] graduated.” He was “doing
everything [he] c[ould] to get out of [the high school]” but had not been able to do so yet
because he could not find a different job. The victim said she thought she “need[ed] to
tell them that [they] had sex before [she] was 18.” Defendant responded “if you do that,
then that means um my kids are gonna have no dad basically.” When the victim asked
why she should “try to protect you guys,” defendant responded that “all [he] c[ould] ask
is that . . . [she] try to think of [his] kids.”
       The day after this pretext call, on January 5, 2012, police arrested defendant.
Defendant denied having sex with the victim before her 18th birthday and denied
performing any acts of oral copulation on her. The police then played the recording of
the pretext call, defendant requested an attorney, and police ended the interview.




3     Defendant was referring to the kissing incident on the middle school campus
witnessed by two students.

                                                   5
                                              B
                              Court Filings And Proceedings
       On September 24, 2013, defendant entered his no contest plea. At the end of the
plea hearing, the prosecutor stated defendant did not sign the part of the plea form
regarding whether or not sex offender registration was required “because it is a
discretionary registration as to these particular charges.” The court then stated, “it’s my
understanding that everybody agrees that the issue of the 290 registration is
discretionary” “based on the charges that [defendant] has pled to.” Defense counsel
stated that it was based on “the Hofsheier case.” The court asked if “[e]verybody agrees
with that,” and the prosecutor responded, “Yes.”
       In November 2013, in between his plea and sentencing, defendant separated from
his wife.
       On November 26, 2013, the probation officer submitted her report and
recommendation. Defendant scored zero on the Static-99R, which was an actuarial
measure of risk for sexual offense recidivism, which placed him in the low category of
being convicted of another sexual offense if released on probation. The probation officer
recommended three years eight months in prison because he took advantage of his
student, whom he brought into his house as a babysitter. Regarding sex offender
registration, the probation officer stated the victim “felt it was important [defendant]
register as a sex offender” and later in the report recommended, “defendant shall register
as a sex offender pursuant to §290 of the Penal Code.”
       On December 3, 2013, defense counsel filed her sentencing brief. She urged the
court to grant defendant probation. In it, she explained that sex offender registration here
was in the court’s discretion and argued against registration because defendant “poses
little or no threat to the public.” She noted the probation report did not contain any
analysis of registration, so it was “not clear whether probation considered registration to
even be discretionary in this case.” She also attached a psychological evaluation of

                                              6
defendant she had commissioned. At the time defendant began engaging the victim in a
sexual relationship, he was experiencing emotional strife because of “marital difficulties”
with his wife. Having the sexual relationship with the victim helped him cope with his
emotional strife. The psychological evaluation concluded that “with treatment
[defendant] does not present as a danger to the public and [is] unlikely to commit similar
offenses in the future.”
       On December 4, 2013, the prosecutor filed her sentencing brief. In it, she
explained that sex registration here was in the court’s discretion and argued for
registration. The purpose of defendant’s sex offenses was sexual gratification because he
pursued sex, as opposed to simply an emotional connection. Defendant committed the
crimes out of sexual compulsion because, as defendant himself said, he could not resist
the victim. Registration here was necessary to protect society. Defendant was not
deterred “despite knowing the victim was a minor, despite being 19 years older than the
victim, despite being married, and despite being a trusted teacher.” “He was willing to
cross all of these lines and boundaries, both personal and societal, to gratify his own
sexual needs and satisfy his compulsion. If he was not deterred by these factors from
committing his instant offenses, he is likely to offend again.”
       On December 6, 2013, the court held the sentencing hearing at which it stated it
had considered the probation report, the prosecutor’s sentencing brief, and defense
counsel’s sentencing brief.
       The prosecutor then read a letter from the victim. At the time she “consented” to
the relationship with defendant, she was “so emotionally broken” because her “father had
been battling a life changing illness [that] would eventually take his life.” Going to
defendant’s house as the family babysitter “was a great distraction from what was
happening at [her] home.” Defendant “knew how vulnerable and weak [she] was,” “took
control of [her] emotions,” and “promised [her they] would live a fairytale life together in
the future.” He did “everything in his power to cover up the crime he had actually

                                             7
committed.” The victim “firmly believe[d] that if [she] weren’t truthful another young
female would be in the same situation [she] was in,” which is “the reason why
[defendant] should not be allowed in close proximity to young females or ever have the
right to be in an authoritative position.”
       The victim’s mother then read her own statement in which she noted defendant’s
crimes were “all about him” and she “pray[ed]” he was required to “register[] as a sex
offender to hopefully prevent him from ever touching another young girl.”
       Defense counsel stated that it was not “necessary to make [defendant] register as a
sex offender or to send him to prison to ensure that he not commit this conduct again.”
       The court then explained why it was selecting a prison term instead of probation
for defendant; namely, because it was important to send a message that conduct like this
will not be tolerated. Thereafter it sentenced defendant to three years and eight months in
prison. The court then stated, “I am going to order that [defendant] register as a sex
offender pursuant to 290 of the Penal Code.”
       Defense counsel filed a notice of appeal and a statement of points to be raised on
appeal. In it, she stated that the court “did not make adequate findings that [defendant] is
likely to commit similar offenses in the future” before imposing the sex offender
registration.
                                        DISCUSSION
                                              I
           There Was Sufficient Evidence To Require Sex Offender Registration
       Defendant contends there was insufficient evidence to impose the sex offender
registration because there was no evidence that defendant would reoffend. Not so.
                                             A
                       The Law Regarding Sex Offender Registration
       In California, registration for sex offenders is either mandatory or discretionary.
Sex offender registration is mandatory for defendants convicted of offenses listed in

                                             8
section 290, subdivision (c). (§ 290, subd. (b).) Sex offender registration is discretionary
for “any offense not included specifically in subdivision (c) of Section 290” “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.)
       The California Supreme Court has somewhat altered these statutory provisions.
Although oral copulation as defined in section 288a is listed as an offense subject to
mandatory registration while voluntary sexual intercourse with a minor of the same age
as defined in section 261.5, subdivision (c) is not (§ 290, subd. (c)), the California
Supreme Court has held “that the statutory distinction in section 290 requiring mandatory
lifetime registration of all persons who . . . were convicted of voluntary oral copulation
with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual
intercourse with a minor of the same age, violates the equal protection clauses of the
federal and state Constitutions.” (Hofsheier, supra, 37 Cal.4th at p. 1207.) Thus,
registration was only discretionary under section 290.006 for all the crimes of which
defendant was convicted.
       Regarding discretionary registration, the court “should . . . consider all relevant
information available to it” and based on that information assess the “likelihood that the
defendant will reoffend” and the “necessity for registration.” (People v. Garcia (2008)
161 Cal.App.4th 475, 483-485, disapproved on other grounds by People v. Picklesimer
(2010) 48 Cal.4th 330, 338-339, fn. 4; see also People v. Thompson (2009) 177
Cal.App.4th 1424, 1431.)




                                              9
                                             B
                   There Was Sufficient Evidence Defendant Was Likely
                          To Reoffend, Necessitating Registration
       Here, there was evidence defendant was likely to reoffend because there was
evidence that defendant cultivated a predatory sexual relationship with a minor victim as
a means of dealing with emotional strife, he was still facing significant emotional strife,
and he repeatedly could not control his sexual impulses even though he knew they were
wrong and could lead to serious consequences.
       At the time defendant began engaging the victim in a sexual relationship, he was
experiencing emotional strife because of “marital difficulties” with his wife. Having the
sexual relationship with the victim helped him cope with his emotional strife. However,
he did not simply fall into a sexual relationship with another person; rather, he slowly
cultivated a sexual relationship with a minor victim over whom he was an authority
figure. He ingratiated himself more into her life by having her become his children’s
babysitter and illegitimately prolonging her role as his teaching assistant to have further
access to her.
       He was likely to reoffend because he was still undergoing such strife (as
demonstrated by his recent separation with his wife) and has demonstrated an inability to
control his actions, necessitating registration, even when he knew he could face jail, the
loss of his marriage, and the loss of his children. For example, he told the minor victim
the reason he initially kissed her and fondled her was that he could not resist her. Then,
knowing that having sex with her when she was a minor was illegal, he tried to wait until
she was 18 to have sex with her, but could not. Even after she turned 18, had ended the
relationship, and was “trying to move on,” defendant “wouldn’t leave [the victim] alone.”
He left notes on her car and gave her his new phone number.
       Thus, there was evidence that defendant was likely to reoffend and registration
was necessary because defendant repeatedly has been unable to control his sexual

                                             10
impulses and the stressors he claims were the reasons he sought out the inappropriate
sexual relationship still exist.
                                              II
       Defendant Has Forfeited His Claim That The Trial Court Did Not Take The
         Two Steps Required To Impose Discretionary Sex Offender Registration
       Defendant contends the trial court failed to take the two required steps for
imposing discretionary sex offender registration, namely, (1) finding that offenses were
committed because of sexual compulsion or for sexual gratification and stating the
reasons for its finding; and (2) stating the reasons for requiring registration.
       Before a court imposes discretionary registration, “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.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) Here, the court did neither, stating
only, “I am going to order that [defendant] register as a sex offender pursuant to 290 of
the Penal Code.”
       However, defense counsel did not object to the court’s failure. “It is now settled a
defendant cannot complain for the first time on appeal about the court’s failure to state
reasons for a sentencing choice.” (People v. Bautista (1998) 63 Cal.App.4th 865, 868.)
Bautista was a case in which the trial court imposed discretionary sex offender
registration stating only, “‘I find it’s appropriate in this case in view of the circumstances
surrounding the offense.” (Id. at p. 867.) The defendant argued on appeal “the matter
must be remanded for the court to provide a statement of reasons for requiring




                                              11
registration.”4 (Id. at p. 867.) The Fifth District Court of Appeal disagreed, finding the
issue forfeited because “[t]his routine defect could easily have been prevented and
corrected had it been brought to the court’s attention.” (Id. at p. 868, citing People v.
Scott (1994) 9 Cal. 4th 331, 353.)
       As support for his argument that no objection was needed, defendant cites People
v. Bonnetta (2009) 46 Cal.4th 143, a case in which the trial court failed to enter in the
minutes its reasons for striking additional terms of imprisonment contained in the
enhancements, as required by section 1385, subdivision (a), even though the reasons
appeared in the transcript of the oral proceedings. (Bonnetta, at pp. 145-146.) The
California Supreme Court in Bonnetta held that the order dismissing the enhancements
had to be reversed. (Id. at p. 146.) In doing so, it rejected the argument that Scott’s
“waiver” rule applied. (Bonnetta, at p. 152.) Our Supreme Court explained as follows:
“because a minute order is entered by the court only after the hearing, the district attorney
cannot easily ensure that it is entered or detect its absence. Moreover, the failure to set
forth the reasons for a dismissal in an order entered upon the minutes is not a routine
defect in sentencing. It is a violation of a mandatory requirement put in place to benefit
the public by assuring that a court through neglect or abuse of discretion has not misused
the ‘great power’ of dismissal.” (Ibid.)
       Bonnetta is distinguishable. Here, defense counsel easily could have called to the
court’s attention its failure to “ (1) . . . 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) . . . state the reasons for requiring lifetime registration as a sex
offender.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) Indeed, counsel appeared to be



4     In Bautista and here, the Attorney General did not raise forfeiture in the
respondent’s brief and instead argued in the respondent’s brief that remand was required.
(People v. Bautista, supra, 63 Cal.App.4th at pp. 867-868.)

                                               12
aware of at least some perceived shortcomings with the manner in which the trial court
imposed registration, because in the notice of appeal that she filed, defense counsel
stated, the court “did not make adequate findings that [defendant] is likely to commit
similar offenses in the future” before imposing the sex offender registration. Moreover,
this case does not involve the trial court’s “ ‘great power’ of dismissal,” (People v.
Bonnetta, supra, 46 Cal.4th at p. 152) but rather, a discretionary sentencing choice of
whether to require sex offender registration.
       Before ending our discussion of forfeiture, we pause to address two additional
points raised by defendant as to why the forfeiture rule should not apply.
       The first point defendant raises is that it is unclear whether the trial court even
understood that it had the discretion not to impose sex offender registration. Defendant’s
argument is based on the fact that the probation report failed to state that registration was
discretionary and the trial court failed to state any reasons for imposing registration. This
argument ignores other parts of the record that unequivocally demonstrate the court knew
of its discretion. At the plea hearing, the court then stated, “it’s my understanding that
everybody agrees that the issue of the 290 registration is discretionary” “based on the
charges that [defendant] has pled to.” Defense counsel stated that it was based on “the
Hofsheier case.” The court asked if “[e]verybody agrees with that,” and the prosecutor
responded, “Yes.” Furthermore, the later-filed sentencing briefs of the prosecutor and
defense counsel explained in detail the law of discretionary sex offender registration and
then applied that law to the facts of this case. The court stated it had read those briefs.
Finally, at the sentencing hearing, the prosecutor “strongly urge[d] . . . registration” and
referred back to what she had “laid out to the Court” in her sentencing brief. Given these
facts, the court understood that sex offender registration here was discretionary.
       The second point defendant raises is that it is unclear whether the court understood
that retribution and punishment were not proper considerations in determining whether to
impose sex offender registration. Defendant’s argument is based on the fact that the trial

                                              13
court selected a prison term instead of probation because it was important to send a
message that conduct like this will not be tolerated. However, there is no evidence the
trial court thought that retribution or punishment were proper in analyzing whether sex
offender registration was appropriate here. To the contrary, the briefs submitted by the
parties explained the proper factors to be considered under section 290.006 and
Hofsheier.
       In summary, defendant has forfeited his claim regarding sex offender registration
because defense counsel failed to object that the trial court did not “ (1) . . . 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) . . . state the reasons for
requiring lifetime registration as a sex offender.” (Hofsheier, supra, 37 Cal.4th at
p. 1197.)
                                               III
        Defense Counsel Was Not Ineffective For Failing To Object To The Court
Not Stating Reasons For The Sex Offender Registration Because There Was No Prejudice
       Defendant contends that if, as we have determined, his challenge to the sex
offender registration is forfeited, his counsel was ineffective for failing to object. There
are two prongs to an ineffective assistance of counsel argument: deficient performance
and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 677-678 [80 L.Ed.2d 674,
687].) Without deciding if counsel was deficient in failing to object, there was no
prejudice, as we explain below. (Id. at p. 697 [80 L.Ed.2d at p. 699] [an appellate court
“need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies”].)
       To prevail on the prejudice prong of an ineffective assistance of counsel challenge,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A



                                               14
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].)
       Defendant on appeal makes three arguments as to why the failure to object was
prejudicial. One, the trial court failed to demonstrate a proper understanding of its
discretion. Two, substantial evidence did not support the registration order. And three,
the trial court improperly considered punishment or retribution in imposing the sex
offender registration. We have rejected all three of these arguments in parts I and II of
the Discussion. Therefore, defendant has failed to persuade us that the result of the
proceeding would have been different had defense counsel objected to the trial court’s
failure.
                                             IV
           There Was No Prejudice In The Lack Of Jury Trial On The Factual
                  Issues Required To Impose Discretionary Registration
       Defendant’s final contention is the trial court erred in not holding a jury trial on
facts required for the trial court to impose discretionary registration. We disagree,
because even if there was error, there was no prejudice.
       Subdivision (b) of section 3003.5, enacted as part of Jessica’s Law in 2006,
provides that “[n]otwithstanding any other provision of law, it is unlawful for any person
for whom [sex offender] registration is required pursuant to Section 290 to reside within
2000 feet of any public or private school, or park where children regularly gather.”
       Defendant contends the residency restriction makes sex offender registration
“punishment,” and thus the facts required for the trial court to impose a sex offender
registration requirement on him under section 290.006 had to be found by a jury beyond a
reasonable doubt under the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147




                                             15
L.Ed.2d 435]. Because no such jury finding was made here, defendant concludes the sex
offender registration requirement should be stricken from the judgment.5
       Defendant did not object to the lack of jury trial. Even if this did not forfeit his
claim on appeal, and even if the trial court erred in requiring him to register as a sex
offender without having a jury find the predicate facts required to impose a registration
requirement under section 290.006, Apprendi error is not reversible per se. Rather, “we
must determine whether, if the question of the existence of an aggravating circumstance
or circumstances had been submitted to the jury, the jury’s verdict would have authorized
the upper term sentence.” (People v. Sandoval (2007) 41 Cal.4th 825, 838.) “[I]f [we]
conclude[], beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-
doubt standard, unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury, the Sixth Amendment error properly may
be found harmless.” (Id. at p. 839.)
       As we have explained, in Hofsheier, our Supreme Court stated , “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.” (Hofsheier, supra, 37 Cal.4th at p. 1197.)
       Here, defendant told the minor victim the reason he initially kissed her and
fondled her was that he could not resist her. Then, knowing that having sex with her
when she was a minor was illegal, he began a countdown to the victim’s 18th birthday.
Still, defendant initiated sex with the victim before she turned 18, when he caught the




5       The issue is currently before the California Supreme Court. (People v. Mosley
(2010) 188 Cal.App.4th 1090 (S187965, review granted Jan. 26, 2011 [residency
restrictions are punishment, and therefore jury trial required on facts exposing defendant
to registration requirement].)

                                              16
victim off guard, orally copulating her, and then had intercourse with her. Defendant
continued having sex with the victim at his house three to four times per week.
       This evidence is overwhelming proof that defendant’s crimes were committed for
the purposes of sexual gratification and out of sexual compulsion, and we are convinced
beyond a reasonable doubt that a jury would so find. Accordingly, even assuming it was
error that a jury did not make these factual findings required by section 290.006, that
error was harmless beyond a reasonable doubt.
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                 , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




                                            17
