People v. Brown CA4/2 ( 2023 )

Filed 7/26/23 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079179
v. (Super.Ct.No. CVRI2200226)
TED MICHAEL BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall S. Stamen,
Judge. Reversed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Following his 1994 conviction on 11 counts of lewd and lascivious conduct upon a
child under the age of 14 years (Pen. Code, § 288, subd. (a); all undesignated statutory
references are to the Penal Code), the trial court sentenced defendant Ted Michael Brown
to 14 years in state prison. As a result of his convictions, defendant was required to
register for life as a sex offender. (Former § 290.) Under current law, however,
defendant is no longer required to register for life, and in 2022 he unsuccessfully
petitioned to terminate his mandatory sex offender registration. On appeal, defendant
argues there is no evidence in the record that he poses a current risk to public safety if his
sex offender registration is terminated. Because the People did not establish a likelihood
that defendant will reoffend, we reverse the order denying defendant’s petition.
I.
FACTS AND PROCEDURAL BACKGROUND
Like the parties, we take the underlying facts of this case from the 1994
presentencing report prepared by the probation department.
In late 1993, a woman with whom defendant had a relationship reported to the
police that defendant had been sexually molesting her daughter for the last year or more.
The victim’s mother told the police that she and her daughter would stay at defendant’s
Lake Elsinore residence on weekends. The victim said that, starting when she was eight
years old, defendant touched and licked her breasts and vagina and had her rub his penis
until he ejaculated. The molestation escalated to vaginal and anal penetration. Once,
when defendant tried to penetrate the victim’s vagina with his penis, the victim said it
hurt. Defendant said he would “wait until she got bigger.” Defendant always told the
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victim he loved her; he would promise her things; he bought her dolls, crayons, and
coloring books; and he told the victim not to tell anyone about the molestation and
threatened to hurt the victim if she did not comply.
When interviewed by the police, defendant admitted that he molested the victim at
least six or seven times when she and her mother stayed at his residence. He admitted to
fondling the victim and having her ejaculate him, and he admitted that he tried to
penetrate the victim’s vagina with his penis but that he stopped when the victim said it
hurt. Defendant told a detective he knew what he was doing wrong, but he did it anyway.
He said the victim’s mother had said the victim was “boy crazy,” and that he did not
believe he had harmed the victim physically or psychologically.
The investigating detective opined defendant was a “predatory pedophile,” who
had expressed no remorse for his actions and “will definitely reoffend if given the
chance.” Moreover, the detective indicated defendant lied during his trial and denied
making incriminating statements during his interview with the police.
A psychological evaluation conducted by Dr. Rath indicated defendant suffered
from chronic physical illness, anxiety, passivity, and unmet dependency needs. Dr. Rath
opined defendant was not a predatory pedophile but was instead a “regressed” and
“opportunistic offender,” who molested the victim “to meet his chronic dependency
needs” through sexual interaction. Defendant “would not likely seek children out in a
non-familial situation.” Dr. Rath opined defendant would require psychological
treatment and would benefit from group therapy.
3
Following a bench trial, the court found defendant guilty on 11 counts of lewd and
lascivious conduct against a child under 14 years of age, in violation of section 288,
subdivision (a), and it dismissed one additional count. (People v. Brown (Nov. 26, 1996,
E015576) [nonpub. opn.].) The trial court initially sentenced defendant to state prison for
16 years, but on its own motion, the court recalled the sentence and resentenced him to 14
years. (Ibid.) This court affirmed the judgment (ibid.), and the California Supreme Court
denied review (People v. Brown, Feb. 19, 1997, S058238).
In January 2022, defendant filed a petition under section 290.5 to terminate his sex
offender registration. Defendant alleged that, under the current version of section 290, he
is a tier 2 registrant and had registered for at least 20 years. (See § 290, subd. (d), as
amended by Stats. 2017, ch. 541, § 2.5.) In addition, defendant submitted proof that he
had not suffered any subsequent convictions for failure to register or for a new sex
offense. The district attorney objected to the petition and requested a hearing to
determine whether community safety would be significantly enhanced by continued sex
offender registration.
In a memorandum in support of the petition, defendant’s attorney indicated that
“‘significantly enhanced,’” as used in section 290.5, had not been judicially defined but,
using common dictionary definitions, it should be interpreted to mean “something that is
large enough to be noticed or have an effect.” Counsel argued the bare facts of
defendant’s 30-year-old offenses did not demonstrate continued registration would
increase public safety “to a large or noticeable degree going forward,” and the People
bore the burden of proving defendant currently “remains a danger and continues to
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present a danger to the community today and going further.” In addition, counsel
asserted the Department of Corrections and Rehabilitation did not begin using the state-
authorized risk assessment tool for sex offenders (SARATSO)1 until 2005 and, therefore,
it was unlikely one was performed on defendant at the time of his parole. Therefore,
counsel completed a STATIC-99R tally sheet. Based on various factors such as
defendant’s age at the time of his offenses and his current age, his lack of prior and
subsequent convictions for sex offenses, and the fact his victim was not a stranger, the
tally sheet indicated defendant had a below average risk of reoffense at the time of his
parole and a very low risk of reoffense at the present. Therefore, counsel argued there
was no evidence community safety would be significantly enhanced by continued sex
offender registration, and the court should grant the petition.
At the July 2022 hearing on defendant’s petition, the prosecutor argued the
petition should be denied because continued sex offender registration would significantly
enhance public safety. She agreed with defendant’s attorney that “significantly
enhanced” had not yet been judicially defined, and it should be given a “common
meaning.” Based entirely on the facts of defendant’s 1994 convictions and the probation
department’s report, the district attorney argued defendant was an opportunistic offender
and the community would benefit from continued registration. The prosecutor argued
1 Since January 1, 2007, the SARATSO for adult male sex offenders has been the
STATIC-99 risk assessment scale. (§ 290.04, subds. (a), (b)(1).) “‘The Static-99R is a
revised version of the Static-99 that takes into account the age of a sexual offender based
on statistics showing the risk of sexual reoffense decreases as the offender ages.’”
(People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1067, fn. 6 (LaBlanc).).)
5
defendant suffered no apparent hardship from having to register as a sex offender and the
stigma associated with registration was “greatly outweighed by the community protection
in this case.”
Defendant’s attorney informed the court that, as a condition of parole, defendant
had successfully completed a sex offender counseling program. Counsel also informed
the court that defendant (who was 69 years old at the time) suffered from a life-long heart
condition and had undergone four heart surgeries since 2011. In addition, defendant had
a compromised immune system and suffered permanent damage to his liver from a
COVID-19 vaccine, from which he may never recover. Due to these conditions,
defendant was afraid to leave his home and did not socialize. According to counsel,
defendant spent all his time with his girlfriend of 18 years with whom he had a stable and
committed relationship. Counsel referred the court to Dr. Rath’s assessment that
defendant was not a danger to the public; that section 290.5 reflected the Legislature’s
conclusion that sexual abuse in a familial setting poses less of a risk to the general
community; and to defendant’s very low risk of reoffense as indicated in the STATIC-
99R tally sheet. And, crucially, defendant had not reoffended in more than 20 years. In
sum, counsel argued defendant had demonstrated he was not a risk, “and community
safety would not be enhanced by his continued registration, let alone significantly.”
The prosecutor responded that the purpose of sex offender registration “is to
prevent future crimes, future convictions” and, regardless of the fact defendant’s offenses
took place in a familial setting, public safety would be significantly enhanced by
continued registration and defendant would suffer no hardship. The prosecutor accepted
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defense counsel’s representation that defendant completed “some type of treatment while
on parole.”
The court took the matter under submission. In a subsequent ruling, the trial court
found community safety would be significantly enhanced by continued sex offender
registration and denied the petition. Of the 12 facts and issues the court listed as
constituting its reasons for denying the petition, nine addressed the underlying facts of
defendant’s conviction and the competing opinions of the investigating detective and
Dr. Rath included in the probation report. Only three addressed defendant’s current risk
of reoffending: (1) defendant had completed “some type” of sex offender therapy after
his release from prison; (2) defendant had “no post-conviction criminal history”; and
(3) defendant’s attorney had submitted a STATIC-99R tally sheet. Finally, the court
ruled defendant could file another petition in three years. Defendant timely appealed.
II.
DISCUSSION
A. Applicable Law and Standard of Review.
“California law requires persons convicted of specified sex crimes against a child,
including violations of section 288, to register as a sex offender while they live, work, or
attend school in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 60 Cal.4th
1044, 1048 . . . .) Commencing January 1, 2021, Senate Bill No. 384 (2017-2018 Reg.
Sess.) . . . restructured the sex offender registration requirement, establishing three tiers
of registration for sex offenders, primarily based on the offense of conviction, for periods
of at least 10 years (tier one), at least 20 years (tier two), and life (tier three). (Stats.
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2017, ch. 541, § 2.5; see § 290, subd. (d).)” (People v. Thai (2023) 90 Cal.App.5th 427,
432 (Thai).) The purpose of Senate Bill No. 384 was to improve public safety by
focusing resources on those sex offenders who pose the greatest risk based on the severity
of their offense and their likelihood of recidivism, while allowing less serious or lower-
risk sex offenders to seek termination from the sex offender registry. (Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg.
Sess.) as amended Sept. 8, 2017, pp. 12-13.)
“Operative July 1, 2021, Senate Bill 384 established procedures for a person to
seek termination from the sex offender registry if the person meets certain criteria,
including completion of the mandated minimum registration period. (§ 290.5, subds. (a)-
(c).) The prosecution may request a hearing and present evidence to establish
‘community safety would be significantly enhanced by requiring continued registration.’
(§ 290.5, subd. (a)(2), (3).)” (Thai, supra, 90 Cal.App.5th at p. 432.) The People must
prove by a preponderance of the evidence that terminating the registration requirement
will considerably increase the risk to public safety because defendant is “currently likely
to reoffend.” (Id. at p. 433; see Evid. Code, § 115 [“Except as otherwise provided by
law, the burden of proof requires proof by a preponderance of the evidence.”].) If the
People do not timely request a hearing, and a defendant meets the requirements for
termination of sex offender registration, there are no charges pending against that
defendant, and that defendant is not in custody, on parole, probation, or supervised
release, the court must grant the petition. (§ 290.5, subd. (a)(3).)
8
Recently, the Court of Appeal in Thai, supra, 90 Cal.App.5th 427, at page 432,
addressed what it means under section 290.5, subdivision (a)(3), for public safety to be
“significantly enhanced” by continued sex offender registration. “Section 290.5 does not
define the phrase ‘community safety would be significantly enhanced.’ The purpose of
section 290 is to ensure police can surveil sex offenders at all times because they pose a
‘“‘“continuing threat to society.”’”’ (People v. Sorden (2005) 36 Cal.4th 65, 73 . . . .) In
the absence of a statutory definition, words should be given their usual and ordinary
meanings. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 376 . . . .)” (Ibid.) The
Thai court relied on common dictionary definitions. “‘Significant’ is defined as ‘having
or likely to have influence or effect: deserving to be considered: important, weighty,
notable.’ (Webster’s 3d New Internat. Dict. (1981) p. 2116, col. 2, capitalization
omitted.) ‘Enhanced’ is defined as to raise or lift. (Id. at p. 753, col. 3.) Thus, the
prosecution must produce evidence establishing that requiring continued registration
appreciably increased society’s safety.” (Thai, at p. 432.)
When making its determination whether continued registration will significantly
enhance public safety, the court must consider “the nature and facts of the registerable
offense; the age and number of victims; whether any victim was a stranger at the time of
the offense (known to the offender for less than 24 hours); criminal and relevant
noncriminal behavior before and after conviction for the registerable offense; the time
period during which the person has not reoffended; successful completion, if any, of a
Sex Offender Management Board-certified sex offender treatment program; and the
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person’s current risk of sexual or violent reoffense, including the person’s risk levels on
SARATSO static, dynamic, and violence risk assessment instruments, if available.”
(§ 290.5, subd. (a)(3).) The court may base its determination on the affidavits,
declarations, police reports, or any other “reliable, material, and relevant” evidence
submitted by the parties. (Ibid.)
“If termination from the registry is denied, the court shall set the time period after
which the person can repetition for termination, which shall be at least one year from the
date of the denial, but not to exceed five years, based on facts presented at the hearing.”
(§ 290.5, subd. (a)(4); see id., subd. (a)(5) [trial court must “notify the Department of
Justice, California Sex Offender Registry,” of denial and of period after which defendant
may again petition for removal].) And, the trial court must state on the record its reason
or reasons for denying the petition and its reason for selecting the time period after which
a defendant may once more petition for removal. (Id., subd. (a)(2), (4).)
Defendant contends, and the People do not dispute, that an order denying a
petition under section 290.5 is an appealable postjudgment order affecting his substantial
rights. (§ 1237, subd. (b).) “An appellate court reviews the trial court’s ruling on a
petition for termination from the sex offender registry for abuse of discretion. (Lewis v.
Superior Court (2008) 169 Cal.App.4th 70, 79 . . . .) To establish an abuse of discretion,
a defendant must demonstrate the trial court's decision fell outside the bounds of reason,
i.e., was arbitrary, capricious, or patently absurd. (People v. Johnson (2022) 12 Cal.5th
544, 605-606 . . . [debatable ruling is not an abuse of discretion].) [¶] ‘The abuse of
discretion standard is not a unified standard; the deference it calls for varies according to
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the aspect of a trial court’s ruling under review. The trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and capricious.’
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 . . . , fns. omitted.) A trial
court abuses its discretion when its factual findings are not supported by the evidence, or
its decision is based on an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th
139, 156 . . . .)” (Thai, supra, 90 Cal.App.5th at p. 433.)
B. The People Did Not Meet Their Burden of Proving Defendant Is a Current
Risk of Reoffending.
In its respondent’s brief, the People, as represented by the Attorney General, argue
the severity of defendant’s offenses and a supposed lack of a change in defendant’s
circumstances support the denial of defendant’s petition. According to the People,
defendant did not establish “that he was no longer an opportunistic offender [who]
pos[es] a risk to the community.” While conceding defendant had been law-abiding for
more than 20 years and had met the minimum requirements for relief under section 290.5,
the People argue defendant had not established “his actual rehabilitation.” Moreover, the
People argue: defendant’s alleged lack of remorse at the time of his offense “was
astonishing”; nothing shows he has accepted responsibility for his actions; and the only
evidence that he has a low risk of reoffending—the STATIC-99R tally sheet completed
by his attorney—is a weak assessment tool and merely accounts for defendant’s age, lack
of prior convictions, and the sheer passage of time.
11
This case is like Thai, supra, 90 Cal.App.5th 427. There, the defendant molested a
12-year-old boy, who had visited the defendant’s store and had spoken with the defendant
more than 40 times. The defendant was sentenced to three years in state prison after he
pleaded guilty to one count of committing a lewd and lascivious act on a child under the
age of 14 years in violation of section 288, subdivision (a), and he was ordered to register
as a sex offender pursuant to former section 290. (Thai, at p. 430.) Twenty-three years
later, the defendant petitioned for relief under section 290.5. While conceding the
defendant had not been convicted of any subsequent offenses, the prosecutor argued the
petition should be denied because the facts of the defendant’s offense were egregious, the
defendant had suffered prior misdemeanor convictions for selling alcohol to minors, the
defendant’s statements to the police after the offense showed a lack of remorse, and it
appeared the defendant had not completed sex offender treatment. (Ibid.)
At a hearing on the petition, the defense attorney informed the court the defendant
had not completed a certified sex offender program because the sex offender management
board did not yet exist, but that defendant recalled attending counseling while on parole.
Counsel also informed the court defendant had not been assessed using the STATIC-99
because it was not a commonly used tool at the time of his sentence. (Thai, supra,
90 Cal.App.5th at p. 431.) Moreover, counsel argued defendant had suffered no
convictions in the 24 years since the underlying offense; he had registered for more than
21 years; he had accepted responsibility for his actions by pleading guilty and attending
counseling while on parole; the longer a sex offender does not reoffend the lower the risk
of recidivism; and there was no evidence the defendant was currently a danger. (Ibid.)
12
Although the trial court stated it did not consider the circumstances of the defendant’s
offense alone, it stated those facts weighed heavily in its decision to deny the petition and
to rule the defendant could not repetition for five years. (Id. at pp. 431-432.)
On appeal, the appellate court ruled there was insufficient evidence to support the
trial court’s ruling that continued sex offender registration would significantly enhance
public safety because the prosecution had not met its burden of establishing the defendant
“was currently likely to reoffend.” (Thai, supra, 90 Cal.App.5th at p. 433.) Although the
trial court had said it was considering all relevant factors, it was “singularly focused” on
the “‘egregious’” facts of the offense and ignored contrary evidence. (Id. at p. 434.) For
instance, the appellate court noted the record showed the victim was not a stranger to the
defendant, and “having a stranger victim is related to recidivism.” (Id. at pp. 433-444;
accord, People v. Johnson (2020) 45 Cal.App.5th 379, 387 [STATIC-99R accounts for
“‘whether any sex offenses were against unrelated victims or strangers.’”].) Moreover,
the prosecutor below presented no evidence to support its assertions that the defendant
had suffered two prior misdemeanor convictions, that he showed no remorse and joked
about his offense, and that he had completed no sex offender treatment. (Thai, at p. 434.)
Finally, when the Attorney General faulted the defendant for not presenting evidence that
he had completed a sex offender treatment program or a current risk assessment, the
appellate court stated, “He forgets it was the prosecution’s burden to establish [the
defendant] was a current risk and it could have sought a current risk assessment.” (Ibid.)
“Other than evidence of the 24-year-old underlying offense, the prosecution
offered no evidence [the defendant] presents a danger today. Indeed, the evidence
13
demonstrates the opposite. For almost 24 years, [the defendant] had not suffered any
conviction.” (Thai, supra, 90 Cal.App.5th at p. 434.) The court acknowledged the
defendant’s conduct was “deplorable” and had a profound effect on the victim. However,
the court held “the prosecution failed to establish with reasonable, credible, and solid
evidence ‘community safety would be significantly enhanced’ by requiring [the
defendant] to register with the sex offender registry for five years. In short, the
prosecution failed to meet its burden as required by the statute. Therefore, the trial court
abused its discretion by denying [the defendant’s] petition.” (Id. at pp. 434-435.)
Here too, the trial court and prosecutor were singularly focused on the facts of the
underlying offense and ignored or completely discounted contrary evidence that tends to
demonstrate defendant is not a current risk. The abuse took place in a familial setting and
the victim was not a stranger; defendant has not reoffended in more than 20 years; he
suffered no prior convictions; he completed sex offender treatment and counseling while
on parole; and he continuously registered as a sex offender since his release from prison.
Moreover, defendant is now 70 years old and in the last 20 years his health—which was
already fragile at the time of the offense—has deteriorated considerably. Contrary to the
suggestion in the People’s brief on appeal, the latter factors are not inconsequential. In
the related context of the civil commitment of sexually violent predators, this court has
held that the sheer passage of time, advanced age, and deteriorating health are highly
relevant factors when determining whether a sex offender is likely to reoffend, and those
facts cannot be ignored by the trial court. (LaBlanc, supra, 238 Cal.App.4th at pp. 1075-
1077.)
14
More importantly, the People erroneously seek to place the burden of proof on
defendant to prove he has been rehabilitated and is no longer an opportunistic sex
offender. To the contrary, it was the People’s affirmative burden to prove, with credible
evidence, that defendant is currently a risk of reoffending and, therefore, that public
safety would be significantly enhanced by continued sex offender registration. (Thai,
supra, 90 Cal.App.5th at pp. 433-434.) But, other than relying on the unchanging facts of
the more than 20-year-old offenses, the People failed to meet their burden of proof.
Therefore, although we acknowledge that defendant’s conduct was deplorable and had an
incalculable effect on the child victim and her mother, we must conclude the trial court
abused its discretion by denying defendant’s petition and ordering him to register for an
additional three years. (Id. at p. 435.)
III.
DISPOSITION
The order denying defendant’s petition is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.
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