Filed 7/28/15 P. v. Reynolds 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)




THE PEOPLE,                                                                                  C076937

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM035404)

         v.

SPENCER DEAN REYNOLDS,

                   Defendant and Appellant.




         Defendant Spencer Dean Reynolds pleaded no contest to one count of sexual
penetration of a minor, having been originally charged with forcible rape, forcible sexual
penetration, and two counts of sexual battery. The trial court ordered defendant to
register as a sex offender pursuant to Penal Code section 290. Defendant appealed his
registration as a sex offender, and this court remanded the matter to the trial court for the
limited purpose of determining whether to exercise the court’s discretion to order
defendant to register as a sex offender and to state all of the required reasons.




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       On remand the trial court exercised its discretionary power to order registration,
and stated its reasons. Defendant appealed, and now argues: (1) the trial court abused its
discretion making the findings on which it based its decision to impose registration; (2)
the factual findings supporting discretionary registration were required to be submitted to
a jury and proved beyond a reasonable doubt; and (3) the trial court violated the
confrontation clause by admitting testimonial hearsay evidence.
       We shall affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The victim, 16-year-old C.E., reported she was raped in a park by a man who
threatened her with a knife and sodomized her. C.E. had just run away from home when
she met defendant. They went to a house where she met a woman she thought was
defendant’s mother. C.E. drank several glasses of alcohol. The woman gave them a
sleeping bag, and C.E. and defendant went to a park. Defendant told C.E. he was 20.
She led him to believe she was 18 or 19. When they got to the park, defendant put the
sleeping bag down and grabbed C.E., forced her to the ground, took off her clothes,
digitally penetrated her, and penetrated her vagina with his penis. C.E. struggled and
tried to fight for a few minutes, then she blacked out and gave in. C.E. reported that
defendant had threatened her with a folding knife.
       When defendant was interviewed, he admitted to kissing and digitally penetrating
C.E., but he denied having sex with her. He agreed to a cheek swab for DNA evaluation.
Defendant’s DNA was not found in C.E.’s underwear, but DNA from his saliva was
found on C.E.’s neck. C.E. would not allow a full sexual assault exam, so no DNA was
recovered from her vagina or anus.1




1 C.E. reported to medical personnel that defendant had penetrated her anus with his
penis, but did not indicate this had occurred in any of her subsequent interviews.

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        Charged with forcible rape, forcible sexual penetration with a foreign object, and
two counts of sexual battery, defendant pleaded no contest to one count of digitally
penetrating a victim under the age of 18. (Pen. Code, § 289, subd. (h).)2 The trial court
sentenced defendant to state prison for the midterm of two years and ordered him to
register as a sex offender. Defendant appealed the judgment on the ground the trial court
stated inadequate reasons for ordering him to register as a sex offender. (People v.
Reynolds (Jan. 24, 2014, C072985) [nonpub. opn.].) We set aside the trial court’s order
requiring defendant to register as a sex offender for the limited purpose of determining
whether to order defendant to register as a sex offender, and stating the reasons for the
determination.
        On remand, the trial court ordered defendant to register as a sex offender, and
made the following statement of reasons:

               “In this case, there are a variety of reasons for and against making
        the findings required. The conduct alleged, and to which the defendant
        admitted, does include the digital penetration of the victim’s vagina.

               “There was a Static-99, as I previously mentioned, completed. It
        resulted in a finding of moderate to high risk of reoffending.

               “Also in favor of registration is the subsequent offense where the
        defendant was found by the police in the same park with another female
        juvenile, and he had a knife with him at the time. Those circumstances are
        substantially similar to the charged conduct.

              “The juvenile also had in her possession a small amount of
        marijuana.

               “In the charge offense, the victim’s allegations included the use of a
        knife or the placing of a knife on her stomach; the fact that the defendant
        threatened her, saying to her, If you don’t to this, you are going to have the
        worst time of your life.




2   Further statutory references to sections of an undesignated code are to the Penal Code.

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              “She alleged that the defendant held her arms and legs down. And
       additional conduct was alleged in her interviews that involve substantial
       sexual conduct, including penile-vaginal penetration/penile-anal
       penetration.

              “Also in favor of registration is the fact that the victim was
       particularly vulnerable. She was a runaway. She had severe emotional and
       mental health issues which, according to the probation report, were
       apparent after a few minutes of conversation with the victim.

              “On balance, the Court would note that there are factors that would
       not support the discretionary registration, including the fact that the
       defendant has no prior record. He is youthful. The victim led the
       defendant to believe she was 18 or 19 years old. And the fact that there
       was no DNA or physical evidence supporting the penile-vaginal penetration
       or penile-anal penetration allegations.

               “The Court has balanced all of these factors for and against
       registration in this case. It is a significant burden on a person, and the
       Court recognizes that. However, in examining the facts and circumstances
       of this case, the allegations that the defendant has admitted to, the Court
       does find that there is a likelihood of the defendant reoffending and that the
       offense was committed as a result of sexual compulsion and for sexual
       gratification.

              “For all of these reasons, the Court is ordering that the defendant
       register as a, under Penal Code Section 290.”
                                       DISCUSSION
                                             I
                                   No Abuse of Discretion
       Defendant argues the trial court abused its discretion in requiring him to register as
a sex offender. The argument has no merit because registration was mandatory, but in
any event the trial court did not abuse its discretion.
       The crime of which defendant was convicted, foreign object penetration of a
victim under the age of 18 (§ 289, subd. (h)), is a conviction which subjects defendant to
mandatory registration pursuant to section 290. Our earlier opinion held that registration
was discretionary because: “[e]ven though section 289 is listed in section 290,
defendant’s offense is similar for equal protection purposes to unlawful sexual

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intercourse which does not require mandatory registration. (People v. Picklesimer (2010)
48 Cal.4th 330, 341-342; People v. Hofsheier (2006) 37 Cal.4th 1185, 1195, 1198-1199,
1206-1207 (Hofsheier ); People v. Ranscht (2009) 173 Cal.App.4th 1369, 1372, 1375.)
Thus, registration for defendant’s offense is required only if ordered at sentencing (§
290.006).” (People v. Reynolds, supra, C072985.) Hofsheier held that section 290
violated the equal protection clause of the Fourteenth Amendment and article 1, section 7
of the California Constitution to the extent it required registration for an adult convicted
of oral copulation with a minor, but did not require registration of an adult convicted of
voluntary sexual intercourse with a minor. (People v. Hofsheier (2006) 37 Cal.4th 1185,
1198 (Hofsheier).)
       Subsequent to our earlier opinion, the Supreme Court revisited its holding in
People v. Hofsheier, supra, 37 Cal.4th 1185. Johnson v. Department of Justice (2015) 60
Cal.4th 871, 888 (Johnson) overruled Hofsheier, and disapproved the Court of Appeal
decisions that “applied Hofsheier’s rational -- i.e., the absence of a rational basis for
distinguishing, as to sex offender registration, between oral copulation with a minor and
unlawful sexual intercourse -- to other sex offenses involving minors and other.”
(Johnson, at p. 888.)
       It is thus clear that registration is mandatory. What is not as clear is whether
Johnson is retroactive in this case. “A decision of a court overruling a prior decision is
typically given full retroactive effect. [Citation.] Despite this general rule, the federal
and state Constitutions do not prohibit an appellate court from restricting retroactive
application of an overruling decision on grounds of equity and public policy.” (Johnson,
supra, 60 Cal.4th at p. 888.)
       Johnson is retroactive where the sex offender “has taken no action in justifiable
reliance on the overruled decision.” (Johnson, supra, 60 Cal.4th at p. 889.) In Johnson,
the defendant’s guilty plea was entered before the Hofsheier decision, and the plea
acknowledged the defendant’s obligation to register as a sex offender as a part of his plea

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agreement. Because it was clear that the decision to plead guilty and the obligation to
register a sex offender did not result from any reliance on the state of the law as
articulated in Hofsheier, the law as stated in Johnson was retroactive. (Johnson, at p.
889.)
        Here, Hofsheier was decided before defendant’s no contest plea, and defendant’s
plea agreement acknowledged that one consequence of his plea was that he might be
required to register as a sex offender. When entering his plea, he answered affirmatively
when the court asked: “Do you also understand that one of the possible consequences
would be a requirement that you register as a sex offender:” (Italics added.) At the time
of his plea, the Fourth District Court of Appeal had held that the Supreme Court’s
decision in Hofsheier was applicable to a violation of section 289, subdivision (h), and
the Supreme Court had issued an opinion holding that a person convicted of violating
section 289, subdivision (h) could file a petition for writ of mandate in the trial court to
seek Hofsheier relief. (People v. Ranscht (2009) 173 Cal.App.4th 1369; People v.
Picklesimer (2010) 48 Cal.4th 330, 340.)
        Under these circumstances we cannot say with certainty that defendant did not rely
of the state of the law as articulated in Hofsheier in entering his plea.
        Because Johnson is so recent, neither party has briefed whether it applies
retroactively here. We need not determine whether it operates retroactively under the
circumstances presented, because we conclude that the trial court’s decision to order
registration was not an abuse of discretion. “A court abuses its discretion when its
rulings fall ‘outside the bounds of reason.’ [Citation.]” (People v. Ochoa (1998) 19
Cal.4th 353, 408.) Employing that test, we find no error.
        The trial court weighed the reasons for and against registration, and stated the
reasons for requiring registration. The reasons given for registration were: (1)
defendant’s Static-99 assessment that found a moderate to high risk of reoffending; (2)
the subsequent offense for which defendant was arrested in the same park with another

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female juvenile and a knife; (3) the fact that the charged offense included allegations that
defendant used a knife and threatened the victim; (4) the fact that additional substantial
sexual conduct was alleged; and (5) the fact that the victim was particularly vulnerable
because she had severe emotional and mental health issues, and was a runaway.
       The trial court also stated the following factors that did not support registration:
(1) defendant’s lack of a prior record, (2) defendant’s youth, (3) the fact that the victim
led defendant to believe she was over 18, and (4) the fact that there was no DNA or
physical evidence supporting allegations of penile-vaginal penetration or penile-anal
penetration.
       On balance, the court ordered registration because it found there was a “likelihood
of the defendant reoffending and that the offense was committed as a result of sexual
compulsion and for sexual gratification.”
       Defendant points to the conflicting evidence regarding his use of a knife, and
regarding whether there was any sexual conduct other than that to which he pleaded. He
also points to the report of his expert, who found no physical evidence to support
additional sexual conduct. However, the trial court recognized that there was no physical
evidence to support the victim’s other allegations of sexual conduct, and recognized that
such conduct, as well as the use of a weapon, was merely alleged.
       Defendant also objects to the court’s characterization of his later arrest in the park
with another juvenile girl. He claims there is no evidence he was in the park with the
girl, other than that he was in the park and the girl was nearby. However, the trial court
could infer from the fact that the report indicated the female was the one who was in
possession of the marijuana, and that defendant was arrested and charged with
misdemeanor possession of marijuana, that the two were together. Moreover, defendant
admitted in his statement to the probation officer that he was with the juvenile.
       Defendant also argues there was no evidence he knew that C.E. had severe
emotional and mental health issues, especially since she had been drinking, and he was

                                              7
strung out on methamphetamine. However, Detective Woodby, who interviewed C.E.,
testified at the preliminary hearing that C.E. acted like a 12 year old, and defendant’s
initial conversation with C.E. occurred before she started drinking, so he had an
opportunity to assess her demeanor. C.E.’s mother told police that C.E. was
schizoaffective, bipolar, had Tourette’s, had the mental capacity of a 12 year old, and
would get in the car with anyone.
       The Static-99 assessment alone, which found a moderate to high risk that
defendant would reoffend, was sufficient by itself to justify a determination by the trial
court that there was a likelihood defendant would reoffend. The trial court gave
appropriate weight to the remaining evidence in support of registration, and properly
considered the factors opposed to requiring registration. The trial court’s findings were
not baseless, and were not an abuse of discretion.
                                           II
            Findings Supporting Registration Need Not Be Submitted to Jury
       California voters passed an initiative in 2006 preventing any person who is
released on parole after being imprisoned for an offense for which registration is required
pursuant to section 290, from residing within 2,000 feet of a public or private school, or
park where children regularly gather. (§ 3003.5.) Defendant argues these residency
restrictions are punitive, and the facts supporting the registration requirement must
therefore be found beyond a reasonable doubt by a jury pursuant to Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
       The Supreme Court recently rejected this claim. (People v. Mosley (2015) 60
Cal.4th 1044.) A defendant has no right to jury trial on the factual findings underlying a
discretionary sex offender registration order. (Id. at p. 1048.)




                                              8
                                            III
                                    Confrontation Clause
       Defendant argues that because the registration requirements are punitive, any
testimonial evidence adduced at the registration hearing must conform to the
confrontation clause of the Sixth Amendment. He argues the victim’s statements about
her interaction with defendant were testimonial, and because they were used in a
proceeding against him, they were required to be subject to confrontation.
       Preliminarily, the premise of defendant’s argument is incorrect. The Supreme
Court has held that neither the registration requirements, nor the resulting residency
restrictions are punitive.
       People v. Castellanos (1999) 21 Cal.4th 785, 796 held: “The sex offender
registration requirement serves an important and proper remedial purpose, and it does not
appear that the Legislature intended the registration requirement to constitute
punishment. Nor is the sex offender registration requirement so punitive in fact that it
must be regarded as punishment, despite the Legislature’s contrary intent. Although
registration imposes a substantial burden on the convicted offender, this burden is no
more onerous than necessary to achieve the purpose of the statute.” (Fn. omitted.)
       People v. Mosley, supra, 60 Cal.4th at p. 1062 held that “the residency restrictions
of Jessica’s Law are not, on their face, an added ‘penalty’ for [the defendant’s] conviction
to which Apprendi applies. Like sex offender registration requirements, the restrictions
are not intended as punishment or retribution for the offense or offenses that led to their
imposition. Rather, their purpose is to serve a legitimate regulatory goal—reducing the
opportunity for persons convicted of sexually related crimes, who are at large in the
community but still deemed dangerous, to reoffend in the future. The restrictions may
lead to significant disabilities in individual cases, but in the abstract, they do not so
resemble traditional forms of punishment, and are not so clearly punitive in effect, as to
override their regulatory aim.”


                                               9
       A. Failure to Object
       Defendant objects to the use of C.E’s statements “about her various observations
of, and interactions with” him. He did not assert an objection to the court’s consideration
of this evidence at the hearing. Failure to object to the introduction of evidence below on
the ground it violated defendant’s constitutional rights under the confrontation clauses of
the federal and state Constitutions forfeits the claim on appeal. (People v. Tafoya (2007)
42 Cal.4th 147, 166.) Anticipating this, defendant claims his trial counsel was ineffective
for failing to assert the objection below.
       B. Ineffective Assistance of Counsel
       To succeed on his claim of ineffective assistance of counsel, defendant has the
burden of showing both that his counsel’s performance was deficient and that the
deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S.
668, 687 [80 L.Ed.2d 674, 693].) To show prejudice, defendant must show there is a
reasonable probability that but for counsel’s performance, the result of the proceeding
would have been different. (Id. at p. 694.) If defendant fails to show prejudice, we need
not determine whether counsel’s performance was deficient. (People v. Weaver (2001)
26 Cal.4th 876, 961.)
       Defendant cannot establish prejudice. A trial court’s decision to impose a
discretionary sex offender registration requirement is a sentencing decision. (See People
v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved on another point by Johnson,
supra, 60 Cal.4th at p. 888.) The Sixth Amendment right to confrontation does not
extend to sentencing. (People v. Arbuckle (1978) 22 Cal.3d 749, 754; People v. Cain
(2000) 82 Cal.App.4th 81, 86.) Consequently, the trial court would have properly
rejected an objection to the evidence based on confrontation clause grounds, and
defendant is unable to show prejudice.




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                                    DISPOSITION
     The judgment is affirmed.



                                        BLEASE    , Acting P. J.


We concur:


        HULL                     , J.


        RENNER                   , J.




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