People v. Franco ( 2024 )

Filed 1/25/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B324852
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A533690)
v.
ARTURO MONTOYA
FRANCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David C. Brougham, Judge. Reversed.
Sharon Fleming, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.
******
A sex offender convicted in the 1980s petitioned the trial
court to be removed from California’s registry of sex offenders on
account of living 37 subsequent years of a law-abiding life. (Pen.
Code, § 290, subd. (a)(1).)1 The People opposed, chiefly on the
ground that one of the offender’s sex crimes—if prosecuted today
under a statute enacted 21 years after his conviction—would
render him ineligible to petition for removal from the registry.
This case thus presents the question: May a trial court deny a
petition seeking removal from the sex offender registry on the
ground that the offender’s underlying sex crime also constitutes a
different, later-enacted sex crime for which lifetime registration
is required (and hence removal is not authorized)? We conclude
that the answer is “no.” Because the trial court otherwise gave
the “egregious” nature of the underlying crime controlling weight
while giving no weight to the factors bearing on the now-75-year-
old offender’s current likelihood of reoffending, the court’s
analysis runs afoul of People v. Thai (2023) 90 Cal.App.5th 427(Thai) and must be reversed.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL BACKGROUND
I. The Underlying Crimes2
In the early 1980s, Arturo Franco (defendant) lived with
his stepdaughter, J. In September 1983, when J. was seven years
old, defendant pulled her underwear down to her knees and
inserted his penis “in [her] hole”; J. reported that “some white
stuff came out from [her] cookie and his thing.” In February
1985, defendant rubbed J.’s vagina with his fingers through her
underwear.
II. Defendant’s Plea and Sentence
In the spring of 1985, the People charged defendant with
two counts of committing lewd and lascivious acts with a minor (§
288, subd. (a).) On May 31, 1985, defendant pled no contest to
both counts. The trial court sentenced defendant to six months in
jail, followed by five years of formal probation. Defendant was
also ordered to register as a sex offender for the rest of his life. In
1989, defendant successfully completed probation.
III. Petition For Removal From Sex Offender Registry
On September 9, 2021, defendant filed a petition to
terminate the sex offender registration requirement. Specifically,
he alleged that his offenses made him a “Tier 2” offender, that
such offenders are eligible for removal after being registrants for
20 years, and that defendant had been a registrant for 37 years.
The People objected to defendant’s petition and demanded a
hearing. In a subsequently filed opposition, the People argued
that one of the two sex crimes would now be prosecuted as a
2 These facts are drawn from the victim’s statements in
police and probation reports, as there was no preliminary hearing
and no plea transcript revealing any other factual basis for the
convictions.
3
violation of section 288.7—as having “sexual intercourse” “with a
child who is 10 years of age or younger” (§ 288.7, subd. (a))—and
that persons convicted under section 288.7 are “Tier 3” offenders
who are generally ineligible to be removed from the registry.
Defendant filed a further response with exhibits detailing
(1) his unfailing compliance with his sex offender registration
requirement as well as lack of any arrests for the intervening 37
years; (2) the progress he made in psychotherapy sessions,
completion of a counseling program, and willingness to admit to
the crimes and show remorse; (3) his 34-year marriage and
family stability; (4) his military service in the 1970s; (5) his post-
conviction work history; and (6) his involvement in church
activities.
The trial court held a hearing on November 10, 2022. The
court described the “two biggest factors” favoring defendant were
that he (1) “has no criminal behavior before or after [the 1980s
offenses],” and (2) has not reoffended in 37 years. “[E]ven
balancing in all the other factors,” the court nevertheless found
that two factors disfavoring defendant and tied to the underlying
crimes—namely, (1) the nature of the crimes, and (2) the age of
the victim—were “the focus.” The court characterized the first
incident as “shocking” and “egregious community threatening
behavior” because it entailed “a grown man . . . hav[ing] full on
sexual intercourse with his seven-year-old daughter.” The court
had also observed that this incident would likely qualify for
prosecution under section 288.7 were it prosecuted today, and
would thereby carry a 25-year-to-life sentence and a lifetime
registration requirement. While the court felt that “sending
[defendant] back to prison for 25-to-life or more years in prison”
was not warranted, “requiring him to continue registering” would
4
“significantly enhance[]” “community safety.” For the same
reason, the trial court also ruled that defendant could not file a
subsequent petition for removal from the registry for the
maximum amount of time—namely, for five years.
IV. Appeal
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in (1) denying
his petition for removal from the sex offender registry, and (2)
requiring him to wait five years before filing another petition.3
I. Pertinent Law
A. Sex offender registration requirement
California law requires persons convicted of certain sex
crimes or those whose offenses are sexually motivated to register
with California’s sex offender registry. (§ 290, subds. (b) & (c);
People v. Mosley (2015) 60 Cal.4th 1044, 1048.) Due to a
perceived propensity for recidivism, sex offenders are viewed as
posing a “‘“‘continuing threat to society.’”’” (People v. Sorden
(2005) 36 Cal.4th 65, 73.) The “overriding purpose” of sex
offender management is to mitigate that threat, thereby
“enhanc[ing] community safety by preventing future sexual
victimization.” (§ 9000, subd. (d).) Requiring sex offenders to
register serves that purpose by ensuring that the offenders are
readily available for police surveillance. (Sorden, at pp. 73-74.)
For many years, California took a one-size-fits-all approach
to sex offender registration: If registration was required,
3 Defendant also claims that these errors violated his due
process rights. Because this due process argument is entirely
derivative of defendant’s main arguments, we do not separately
analyze it.
5
registration was always for life. (Stats. 1947, ch. 1124, § 1, p.
2562.)
Over time, this one-size-fits-all approach led to California
having “the largest number of registrants in the nation,”
“mak[ing] it difficult for law enforcement to effectively supervise
those who present[ed] the greatest public danger.” (Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 894 (dis. opn. of
Werdegar, J.), citing Cal. Sex Offender Management Bd., A Better
Path to Community Safety: Sex Offender Registration in
California (2014) p. 3, and Cal. Sex Offender Management Bd.,
Recommendations Report (Jan. 2010) p. 50.) In order to reduce
the burden on this overwhelmed system and thereby free up law
enforcement to supervise the sex offenders who pose the greatest
risk to the community (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), our Legislature
amended the sex offender registration statutes in 2017 to create a
three-tiered system, with offenders in each tier presumptively
obligated to register for different periods of time depending on
the degree of risk they pose to the community (Stats. 2017, ch.
541, § 2.5; see § 290, subd. (d)). The amended scheme sets up the
following tiers:
● Tier 1. Tier 1 is for sex offenders posing the least risk
of recidivism. They may apply for removal from the sex offender
registry after 10 years. (§ 290, subd. (d)(1).)
● Tier 2. Tier 2 is for sex offenders posing a medium
risk of recidivism. They may generally apply for removal from
the sex offender registry after 20 years (§ 290, subd. (d)(2)),
although some Tier 2 offenders may apply for removal after 10
years (§ 290.5, subds. (b)(1) & (b)(2)).
6
● Tier 3. Tier 3 is for sex offenders posing the greatest
risk of recidivism. They are required to register for life (§ 290,
subd. (d)(3)), although there are exceptions under certain
circumstances (id., § 290.5, subd. (b)(3)).
Placement into Tier 1 and Tier 2 turns on the crime of
which the defendant “was convicted.” (§ 290, subds. (d)(1)(A) &
(d)(2)(A).) Placement into Tier 3 generally turns on the crime of
which the defendant “was convicted,” but can also turn on the
defendant’s “risk level on the static risk assessment instrument
for sex offenders (SARATSO),” on his recidivism, or on prior
commitment to a state mental hospital as a sexually violent
predator. (Id., subd. (d)(3).)
B. Removal from the sex offender registry
Once a Tier 1 or Tier 2 defendant has been a sex offender
registrant for the minimum amount of time mandated by their
tier, they may petition to be removed from the registry and for
relief from the duty to continue to register. (§ 290.5, subd. (a)(1).)
If the defendant does not “meet the statutory requirements” for
removal or has not properly served or filed their petition, the trial
court may summarily deny the petition after “stat[ing] the
reasons” for doing so. (Id., subd. (a)(2).) If the defendant avoids
summary denial, the People must elect whether to request a
hearing. If the People do not request a hearing, the trial court
must grant the petition as long as the defendant is currently
registered, has no pending charges, and is not in custody or on
parole, probation or supervised release. (Ibid.) If the People
request a hearing, the court must convene one. (Id., subd. (a)(3).)
The purpose of the hearing is for the People to “present
evidence” as to whether “community safety would be significantly
enhanced by requiring continued registration.” (§ 290.5, subd.
7
(a)(3).) In making this determination, the trial court “shall
consider” seven factors: (1) “the nature and facts of the
[underlying,] registerable offense”; (2) “the age and number of
victims”; (3) “whether any victim was a stranger [to the
defendant] at the time of the offense”; (4) “criminal and relevant
noncriminal behavior before and after conviction for the
[underlying,] registerable offense”; (5) “the time period during
which the [defendant] has not reoffended”; (6) “successful
completion, if any, of a Sex Offender Management Board-certified
sex offender treatment program”; and (7) “the [defendant’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).)
Permissible evidence includes “declarations, affidavits, police
reports, or any other evidence submitted by the parties which is
reliable, material, and relevant.” (Ibid.)
The trial court’s task is to assess whether the People have
carried their burden of “produc[ing] evidence establishing that
requiring continued registration appreciably increase[s] society’s
safety.” (Thai, supra, 90 Cal.App.5th at p. 432.) If the court
denies the petition, it must also “set the time period”—between
one and five years—“after which the [defendant] can repetition”
for relief, and must “state on the record the reason” for the time
period it selects. (§ 290.5, subd. (a)(4).)
II. Analysis
Defendant argues that the trial court erred in denying his
petition for removal from the sex offender registry because the
court impermissibly assigned controlling weight to the nature of
the underlying sex offenses, and effectively ignored the evidence
that overwhelmingly establishes he does not currently pose any
8
risk of reoffending.
A. Standard of review
We evaluate a trial court’s decision whether to grant or
deny a petition for removal from the sex offender registry for an
abuse of discretion, reviewing any subsidiary factual findings
based on disputed facts for substantial evidence and any
subsidiary legal findings—including questions of statutory
construction—de novo. (Thai, supra, 90 Cal.App.5th at p. 433;
see generally Gamboa v. Northeast Community Clinic (2021) 72
Cal.App.5th 158, 166; see also John v. Superior Court (2016) 63
Cal.4th 91, 95 [statutory construction reviewed de novo].)
Defendant urges that we apply an “independent, de novo”
standard of review, and cites People v. Vivar (2021) 11 Cal.5th
510 (Vivar) for support. We reject this argument.
To begin, Vivar took pains to explain that “independent
review” is different from “de novo review” (Vivar, supra, 11
Cal.5th at p. 527 [“‘“[i]ndependent review is not the equivalent of
de novo review”’”]), so defendant’s argument equating the two is
faulty right out of the gate.
More to the point, Vivar held that appellate courts may use
their “independent judgment” when assessing whether deficient
advisements of the immigration consequences flowing from a
criminal case were “prejudicial” in cases where the sole evidence
presented to the trial court was documentary (that is, the “cold
record” of the prior proceeding and other documents) rather than
live testimony. (Vivar, supra, 11 Cal.5th at pp. 527-528.) Vivar
explicitly confined its independent judgment review to the
prejudice inquiry under section 1473.7 for motions to vacate
convictions because the assessment of prejudice in this context is
“predominantly” legal, and hence an assessment appellate courts
9
traditionally review without deference to the trial courts because
appellate courts are viewed as equally competent as trial courts
at evaluating questions of law. (Ibid.; accord, People v. Werntz
(2023) 90 Cal.App.5th 1093, 1109 (Werntz) [so noting].)
Here, by contrast, the question is whether the People have
carried their evidentiary burden of establishing that a
defendant’s “continued registration appreciably increase[s]
society’s safety” after weighing a variety of statutorily
enumerated factors. This is a predominantly factual inquiry and
also an inquiry that calls upon the court to balance various
factors; evaluating facts and balancing a panoply of factors
pulling in different directions are tasks within the particular
competence of trial courts because they are tasks trial courts
confront on a daily basis while appellate courts do not. (Vivar,
supra, 11 Cal.5th at p. 527 [noting pertinence of the “relative
competence of trial courts and appellate courts to assess . . .
evidence”].) Even where, as here, the record before the court is
purely documentary (and hence “cold”), using an independent—or
de novo—standard of review not only ignores the trial court’s
special competence, but also places upon the appellate courts the
additional burden of starting from scratch; indeed, accepting
defendant’s argument would mean that appellate courts would
convert the abuse of discretion review governing most criminal
sentences into de novo review because noncapital sentencing
hearings also usually turn on balancing a number of competing
factors drawn from a cold record of documents. But this is
antithetical to our three-tiered system of courts, which is
designed to narrow the range of issues each ascending court
considers anew; it is meant to be a pyramid—and not, as
defendant would have it, a skyscraper. This is undoubtedly why
10
courts have uniformly rejected attempts to decouple Vivar from
its rationale, and to export its independent judgment standard of
review into different contexts. (People v. Njoku (2023) 95
Cal.App.5th 27, 43 [declining to impose independent judgment
review to resentencing petitions under section 1172.6]; Werntz,
supra, 90 Cal.App.5th at pp. 1109-1110 [same]; People v. Oliver
(2023) 90 Cal.App.5th 466, 479-480 [same]; People v. Sifuentes
(2022) 83 Cal.App.5th 217, 232-233 [same]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 590-591 [same]; People v. Clements
(2022) 75 Cal.App.5th 276, 301 [same].) We respectfully decline
defendant’s invitation to export Vivar into this context.
B. “Focus” on the underlying sex offenses
Citing Thai, supra, 90 Cal.App.5th 427, defendant argues
that the trial court abused its discretion in giving controlling
weight to the “egregious” nature of defendant’s underlying sexual
offenses. In Thai, the trial court stated that it had “considered
‘each and every one of the factors’” that section 290.5 directs a
court to consider, but found that the “egregious” nature of the
underlying sex crime (there, masturbating a 12-year-old boy)
“weighed” so “heavily” as to warrant denial of the defendant’s
petition for removal from the sex offender registry despite 24
years of law-abiding behavior since the crime. (Id. at pp. 431-
432.) On those facts, Thai held that “insufficient evidence
support[ed] the trial court’s conclusion community safety would
be appreciably increased by requiring [the defendant in Thai] to
continue to register for five years” because the People had not
“produc[ed] evidence” showing that the 64-year-old defendant
“was currently likely to reoffend.” (Id. at p. 433.) The trial court
in this case appears to have committed the sin condemned in
Thai—namely, despite acknowledging other factors, the court
11
gave controlling weight to the “egregious” nature of defendant’s
offenses despite 37 years of law-abiding behavior since the
offenses and despite the People’s failure to produce any other
evidence indicating that defendant, age 74 at the time of the
hearing, “was currently likely to reoffend.” Indeed, the People on
appeal do not really contest that Thai mandates reversal.
Instead, the People make the following multi-step
argument to circumvent Thai: (1) Defendant, for the September
1983 incident, could have been charged—and likely convicted—of
violating section 288.7, a statute that was not enacted until 2006
(Stats. 2006, ch. 337, § 9); (2) a defendant convicted of a sex crime
under section 288.7 is a Tier 3 sex offender (§ 290, subd.
(d)(3)(C)(xiv)); and (3) our Legislature, in designating certain
offenses as automatically placing a sex offender into Tier 3, which
mandates lifetime registration, has evinced its view that—for
those offenses—the nature of the offense by itself establishes a
perpetual likelihood of reoffending and thus may permissibly be
viewed as controlling.
Although this argument is not without some logical gravity,
we nevertheless reject it because sections 290 and 290.5 did not
adopt this approach. These statutes hinge the designation of
tiers (and hence the minimum duration of registration as a sex
offender) on whether the defendant “was convicted” of certain
crimes (§ 290.5, subds. (d)(2) & (d)(3)(C))—not on whether the
defendant “could have been convicted” of other crimes, including
crimes that did not yet exist at the time the sex offense was
committed. Our Legislature has, in other contexts, tasked the
courts with independently determining whether a criminal
defendant previously convicted of a particular crime under a
particular theory might still be guilty of the same crime under a
12
different theory or, failing that, guilty of a different crime. (See,
e.g., § 1172.6.) By explicitly tying tier placement to the offense of
which the defendant “was convicted,” our Legislature in sections
290 and 290.5 opted not to follow this other approach. We cannot
gainsay our Legislature’s choice.4 (Day v. City of Fontana (2001)
25 Cal.4th 268, 272 [“the plain meaning of the language
governs”]; People v. Trevino (2001) 26 Cal.4th 237, 242 [our
Legislature’s use of “materially different language” in provisions
“addressing the same subject or related subjects” is indicative of a
different meaning].)
Because we reject the People’s attempt to circumnavigate
Thai, Thai governs and mandates reversal due to the trial court’s
decision to give the “egregious” nature of the offenses controlling
weight where the People opted not to introduce any other
evidence that defendant “was currently likely to reoffend.” (Thai,
supra, 90 Cal.App.5th at p. 433.) Defendant’s convictions are for
lewd and lascivious conduct, a violent felony, so he is a Tier 2
offender. (§ 290.5, subd. (d)(2)(A) [Tier 2 offenders include those
convicted of violent felonies]; § 667.5, subd. (c)(6) [violation of
section 288 is a “violent felony”].) Defendant is therefore entitled
to be removed from the sex offender registry because he has not
reoffended and has been registering for well in excess of the
minimum 20 years. (§ 290.5, subd. (a)(1).)
4 The Legislature certainly could have taken this other
approach, even if it would place a defendant in a higher tier
affecting the duration of the duty to register, because sex offender
registration is not “punitive” and hence does not implicate the
right to jury findings beyond a reasonable doubt or the ex post
facto clause. (People v. Merchand (2002) 98 Cal.App.4th 1056,
1065; People v. Castellanos (1999) 21 Cal.4th 785, 799; Smith v.
Doe (2003) 538 U.S. 84, 102-106.)
13
Our decision today does not diminish the egregiousness of
defendant’s underlying sex offenses or in any way diminish the
trauma he inflicted upon J. Instead, we adhere to our judicial
duty of implementing the will of our Legislature as reflected in
the statutes it has enacted, and those statutes dictate that
defendant is entitled to the relief he seeks.5
DISPOSITION
The order denying defendant’s petition is reversed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
5 In light of this disposition, the question of how long
defendant must wait to re-petition for relief is moot.
14