People v. Lau CA4/1

Filed 12/28/20 P. v. Lau CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077049
Plaintiff and Respondent,
v. (Super. Ct. No. SCD279151)
DANA BRANT LAU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
During a trial in which Dana Brant Lau was charged with one count of
sexual penetration (count 1) (Pen. Code, § 289, subd. (a)),1 one count of
assault with intent to commit sexual penetration (count 2) (§ 220, subd.
(a)(1)), and one count of assault by means of force likely to cause great bodily
injury (count 3) (§ 245, subd. (a)(4)), the jury found Lau guilty of a single
count of simple assault (§ 240) as a lesser included offense of count 3. The
trial court sentenced Lau to credit for time served. Although Lau was not
convicted of a crime requiring that he register as a sex offender (§ 290,
subd. (c)), the trial court found by a preponderance of the evidence that Lau
committed the simple assault as a result of sexual compulsion or for purposes
of sexual gratification, and it accordingly ordered Lau to register as a sex
offender pursuant to its discretionary authority under section 290.006,
subdivision (a).
Lau appeals from the portion of the judgment requiring that he register
as a sex offender. Lau contends (1) the trial court erred in applying a
preponderance of the evidence standard; (2) the registration order violated
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because it was based
on facts found by a judge, not by a jury; (3) the trial court violated his right to
due process because it purportedly premised its ruling on unreliable evidence
of uncharged crimes and unproven out-of-state convictions; and
(4) substantial evidence does not support the trial court’s finding that he
committed the offense as a result of sexual compulsion or for purposes of
sexual gratification. We conclude that Lau’s contentions lack merit, and we
accordingly affirm the judgment.
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
Lau and Mary M. were both homeless and lived on the streets in San
Diego. Early in the morning on October 21, 2018, Mary M. entered a 7-
Eleven store and asked an employee to call 911 because she had been
attacked by Lau. A short time later, Lau followed Mary inside the store, and
the two briefly yelled at each other before Lau left. When police arrived,
Mary M. reported that she woke up with Lau sexually assaulting her,
including kissing her neck, and that he then digitally penetrated her.
Later that morning, Mary underwent a sexual assault examination by
a forensic nurse. The exam revealed bruising to Mary’s external genitalia
and also an abrasion to Mary’s cervix, consistent with digital penetration.
Samples were collected for DNA analysis, and it was later discovered that
male DNA was found on Mary’s breast in a low level and also on Mary’s neck.
The DNA from Mary’s neck was able to be further analyzed, showing “strong
support” for identifying Lau as a contributor.
Detectives interviewed Lau on October 26, 2018, at the police station.
For the first part of the interview, Lau maintained that his interaction with
Mary on the morning of October 21, 2018, consisted of a failed drug
transaction, during which Mary asked to buy methamphetamine from him
but then kept the drugs without giving him the money. Lau stated that when
Mary did not pay him and refused to return the drugs, he physically
struggled with her and patted down her body to try to find the drugs. Lau
explained that Mary then broke free from him and ran into the 7-Eleven,
where she reported that Lau had attacked her. Lau contended that Mary
accused him of sexual assault because it was an easy way of getting drugs
without having to pay for them.
3
When the detectives asked why they might find Lau’s saliva on Mary’s
neck, Lau stated that he may have touched Mary’s neck with his mouth
because he was angry about the drugs and was going to bite her. As the
detectives continued questioning Lau they asked, without a factual basis to
do so, if there was any reason for them to find his DNA from finger scrapings
in Mary’s vagina.
Lau eventually stated that he had sexual contact with Mary because he
thought that she liked him, but, in fact, she was just baiting him. Because
Lau’s statements to the detectives are relevant to the issues presented in this
appeal, we set forth some of those statements in more detail.2 In part, the
following conversation took place:
“[Detective]: I mean, did you- did- so she- so she gave you
indications that she was interested?
“[Lau]: Kinda.
“[Detective]: So did you think it might be ok if you hooked up
with her? She might reciprocate?
“[Lau]: Yeah, but it’s a- it never- it never fuckin fails. It’s always
fucked.
“[Detective]: So it wasn’t about the dope then?
“[Lau]: (Unin), I- I liked her but she was giving me like- like the
come on shorty we’ll (unin) it was just, ugh.
“[Detective]: Tell me more about that.
“[Lau]: Why? That’s what they do. They bait you in, you know
what I’m sayin? And then run and call rape. Fuck that shit
nigga. You know what I’m sayin? It’s hard dawg, it’s hard.
2 The references to “(unin)” represent unintelligible portions of the
transcript as reflected in the transcript used as an exhibit at trial.
4
“[Detective]: I can imagine it’s hard out there, and that’s why we
want to get to know what’s going on with you.
“[Lau]: I’m just lonely. Just fuckin tired. I fuckin (unin) I’m not-
I’m not- I’m not no weirdo rapist. It’s just fuckin bitches be
playing so many fucking games dude, and I ain’t got no patience
so I’m not going to wait. I’m just- you know I’m saying? Then I-
then I catch myself. I’m like, ‘I’m not that dude.’ Then by then
it’s too late and they got (unin) you know what I’m sayin? You
grab them and you know wait a minute baby, (unin) you know
what I’m sayin? ‘ahh!’ you know so all hell breaks loose.”
Later in the interview, Lau told the detectives, “Bait bitches don’t want
nobody rubbing down and kissing on them and trying to give them (unin).
They just, I don’t know, . . . that’s a way out. Once you touch them and try to
get sexual with them, they ‘ahh’ that’s their fuckin, eh, eh, eh, call the police,
call the police. That’s what they do.” Lau said, “So that’s what I’m gonna
start to do is just go to the whorehouse and I will have no problems. I think
that’s better off. Just go to TJ and buy some pussy, shit.” The detectives
asked Lau, “So, you laid down with her, hugged her a bit, were kissing on her
neck, touching her, and that’s when she freaked out?” Lau answered, “Yeah,
I guess,” and then “Yeah, obviously, yeah.” The detectives asked, “Alright.
So, was it . . . putting your hand in her pants that really set her off?” Lau
answered, “I don’t know.” The detectives asked, “Was that what happened?”
Lau said, “I guess. She didn’t say no to it.”
Toward the end of the interview, Lau stated, “I’m getting upset nigga
because this is bullshit dawg, that I got in again. Once again it’s my fault.
It’s all my fault for trying to be a man and be with a woman and not go to
fuckin hell. . . . I’m trying to sleep with a woman and a bitch call rape on
your ass, sexual assault, whatever. Nigga, fuck that shit.” When the
detectives asked Lau to state what he would say to apologize to Mary, Lau
said: “I apologize for any- I thought you liked me, you didn’t like me, and-
5
and- and- and I got a little excited, and . . . overanxious, and . . . I went too
far. (unin). Please don’t throw the book at me, just understand that men are
men and we don’t know what you- what makes you guys tick and makes you
guys (unin). I don’t know either, you know what I’m sayin? I don’t mean it in
a disrespectful way, I just- I’m not a bad person, girl, I’m just, you know what
I’m sayin? I’m sincerely sorry.”
Lau was charged with one count of sexual penetration (§ 289, subd. (a)),
one count of assault with intent to commit sexual penetration (§ 220, subd.
(a)(1)), and one count of assault by means of force likely to cause great bodily
injury (§ 245, subd. (a)(4)).
At trial, Mary testified about the sexual assault. Mary explained that
she was acquainted with Lau because she had interacted with him for the
first time a week prior to the assault when they spoke for a few minutes.
According to Mary, early in the morning of October 21, 2018, she was
sleeping on the sidewalk, facing a wall, when she woke up with Lau laying
down beside her, pressing against her back. She could feel Lau’s erection
against her lower back, and Lau had his arms around her. Lau was groping
one of Mary’s breasts and was kissing and biting the back of her neck.
Although Mary was unsure of the sequence of events, she testified that at
some point she screamed, Lau choked her, and Lau digitally penetrated her
vagina. During the assault, Lau said, “I’ll take care of you” and “It’s going to
be okay.” Mary struggled against Lau and managed to push herself up, turn,
and look at Lau. She then used her wits to stop the assault by acting like she
was struggling only because she did not realize that Lau was the person
behind her. She said, “ ‘Oh, my God. . . . You scared me. . . . I didn’t know it
was you. You know I don’t wake up well.’ ” Mary told Lau she would go to 7-
6
Eleven to urinate, and quickly walked away, with Lau following behind her.
Mary then reported the attack to an employee at 7-Eleven.
Mary admitted during her testimony that she had problems with her
memory due to two mini-strokes and that she had nightmares about the
incident that caused her to be confused. Defense counsel was able to call
Mary’s credibility into question by presenting evidence that Mary lied about
whether she used methamphetamine. Specifically, although Mary stated
multiple times after the assault that she did not take drugs near the time of
the assault, and continued to maintain that fact at trial, an analysis of the
urine sample that Mary provided during her sexual assault examination was
positive for methamphetamine.
Lau testified at trial and denied sexually assaulting Mary. Lau set
forth a version of events that was similar to what he told the detectives
during the first part of his police interview. Specifically, Lau stated that he
knew Mary because he had sold methamphetamine to her two or three days
before the incident. According to Lau, early in the morning of October 21,
2018, Mary waved him over because she wanted to buy more
methamphetamine. Lau gave Mary the drugs and was looking out for police
and robbers when Mary started fumbling around to find the money to pay
him. When Mary failed to hand over any money, Lau told her to give back
the drugs, but Mary claimed she didn’t have any drugs. Lau then grabbed
Mary and patted her down, trying to find the drugs. According to Lau, his
DNA could have been on Mary’s neck because his mouth touched Mary’s neck
when he grabbed her to find the drugs. Mary eventually broke free from him
and ran to 7-Eleven. Lau followed Mary but then left before the police
arrived because he was a drug dealer and didn’t want to interact with the
police.
7
The audio recording of Lau’s interview with the detectives was played
for the jury at trial. Lau explained that he made statements to the detectives
about engaging in sexual activity with Mary only because “they badgered me
so much, I was ready to tell them whatever they wanted to get out of the
damn room.”
During closing argument, defense counsel argued that Mary was not a
credible witness, and that accordingly, the People had not proved beyond a
reasonable doubt that Mary’s story, rather than Lau’s, was true.
The jury found that Lau was not guilty of any of the three offenses
charged against him. For the counts charging assault with intent to commit
sexual penetration (§ 220, subd. (a)(1)) and assault by means of force likely to
cause great bodily injury (§ 245, subd. (a)(4)), the jury was instructed on the
lesser included offense of simple assault (§ 240). The jury found Lau not
guilty of the lesser included offense of simple assault for the count charging
assault with intent to commit sexual penetration, but guilty of that lesser
included offense for the count charging assault by means of force likely to
cause great bodily injury.
At the sentencing hearing, the trial court sentenced Lau to credit for
time served. At the request of the People, the trial court also required Lau to
register as a sex offender pursuant to its discretionary authority under
section 290.006, finding by a preponderance of the evidence that Lau
committed the simple assault as a result of sexual compulsion or for purposes
of sexual gratification. In making that finding, the trial court read
extensively from the portion of Lau’s interview with the detectives in which
Lau admitted to engaging in sexual activity with Mary. The trial court
8
stayed the registration requirement pending appeal.3
Lau appeals from the order requiring him to register as a sex offender.
II.
DISCUSSION
A. The Trial Court Properly Applied the Preponderance of the Evidence
Standard of Proof
We first address Lau’s challenge to the trial court’s application of the
preponderance of the evidence standard in finding that Lau committed the
assault as a result of sexual compulsion or for purposes of sexual
gratification.
In deciding to apply the preponderance of the evidence standard, the
trial court relied on our Supreme Court’s opinion in People v. Mosley (2015)
60 Cal.4th 1044, 1052, footnote 4 (Mosley). Lau states that he “cannot find
any language in People v. Mosley requiring the preponderance of the evidence
standard to apply” and that any discussion of the applicable standard “was
dicta.” Lau argues that either the clear and convincing standard or the
3 We note that in making its order that Lau register as a sex offender,
the trial court observed that the sex offender registration statutes would be
amended, effective January 1, 2021, to provide that not all sex offenders are
subject to a lifetime registration requirement. Operative January 1, 2021,
the amended statutory provisions will require an adult offender to register
for a minimum of 10 or 20 years or for life, depending upon the offender’s
designated “tier.” (See Stats. 2017, ch. 541, § 4; Stats. 2018, ch. 423, § 52.)
Persons subject to discretionary registration will be required to “register as a
tier one offender . . . , unless the court finds the person should register as a
tier two or tier three offender and states on the record the reasons for its
finding.” (See Stats. 2017, ch. 541, § 4.) The trial court stated, “So my intent
is to not impose a term. It’s to impose sex registration and then without
findings as to whether it’s tier one, tier two or tier three. And when the law
takes effect in 2021, if it is applied retroactively, this will be treated as a tier
one because I will not have made findings as to tier two or tier three because
the law is not operative.”
9
beyond a reasonable doubt standard should apply.4 As we will explain,
although appearing in dicta, our Supreme Court has twice approved the
application of the preponderance of the evidence standard in reviewing a
discretionary sex offender registration order. Further, the court of appeal
opinion that our Supreme Court cited in support of that standard, People v.
Marchand (2002) 98 Cal.App.4th 1056, 1058 (Marchand), constitutes long-
standing authority for the proposition that the preponderance of the evidence
standard applies to a trial court’s order requiring sex offender registration.
Before turning to the applicable standard of proof, we briefly discuss
the relevant statutory context for the sex offender registration order made by
the trial court. “California law has long required persons convicted of certain
specified sex crimes . . . to register as sex offenders as long as they live or
work in California. (§ 290, subds. (b), (c).) If the conviction is for an offense
other than those automatically requiring registration, the court may
nonetheless [under section 290.006] exercise its discretion to impose a
registration requirement if the court finds the offense was sexually motivated
or compelled, and that registration is justified by the defendant’s risk of
reoffense.” (Mosley, supra, 60 Cal.4th at p. 1048, italics added; see also Lewis
v. Superior Court (2008) 169 Cal.App.4th 70, 78 (Lewis) [“Since the purpose of
sex offender registration is to keep track of persons likely to reoffend, one of
the ‘reasons for requiring registration’ under section 290.006 must be that
the defendant is likely to commit similar offenses . . . like those listed in
section 290 . . . in the future.”].)
Specifically, section 290.006 provides, “(a) Any person ordered by any
court to register pursuant to the Act for any offense not included specifically
4 In the trial court, Lau argued that the trial court should apply a beyond
a reasonable doubt standard.
10
in subdivision (c) of Section 290, shall so register, 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.) “[D]iscretionary registration does not
depend on the specific crime for which a defendant was convicted. Instead,
the trial court may require a defendant to register under section [290.006]
even if the defendant was not convicted of a sexual offense.” (People v.
Hofsheier (2006) 37 Cal.4th 1185, 1197-1198 (Hofsheier), overruled on other
grounds, Johnson v. Dept. of Justice (2015) 60 Cal.4th 871, 882.)
Section 290.006 does not specify the standard of proof that the trial
court should apply in making a finding that the defendant committed the
offense as a result of sexual compulsion or for purposes of sexual
gratification. However, in Marchand, supra, 98 Cal.App.4th at page 1058,
the court stated that the discretionary sex offender registration statute “does
not demand that the court find the predicate fact was proved beyond a
reasonable doubt, and thus it is subject to proof by a preponderance of the
evidence.” (Ibid.) In support of that statement, Marchand cited Evidence
Code section 115, which sets forth the three possible standards of proof
(beyond a reasonable doubt, preponderance of the evidence, and clear and
convincing proof), and then states that “[e]xcept as otherwise provided by
law, the burden of proof requires proof by a preponderance of the evidence.”
By citing Evidence Code section 115, Marchand indicated that because
neither section 290.006, nor any other law, requires a different standard of
proof for a finding that the defendant committed the offense as a result of
11
sexual compulsion or for purposes of sexual gratification, the default
preponderance of the evidence standard applies.5
Our Supreme Court has twice approved of the principle, set forth in
Marchand, that a preponderance of the evidence standard applies when the
court makes an order requiring sex offender registration. First, in People v.
McCullough (2013) 56 Cal.4th 589, 598 (McCullough) our Supreme Court
cited Marchand with approval in giving examples of situations in which the
preponderance of the evidence standard of proof applies when the trial court
makes an order that does not constitute “ ‘punishment’ for constitutional
purposes.’ ” More recently, in Mosley, our Supreme Court stated that to
impose a sex offender registration requirement under section 290.006, “the
required finding need only be found true by a preponderance of the evidence.”
(Mosley, supra, 60 Cal.4th at p. 1052, fn. 4.) Mosley made this statement in
the course of explaining the trial court’s ruling requiring that the defendant
register as a sex offender. As Mosley stated, “The court indicated it was
making this finding beyond a reasonable doubt although fully aware that,
under the discretionary registration statute, the required finding need only be
5 Further, Marchand concluded that because sex offender registration
did not constitute punishment or penalty for the purpose of the due process
clause, there was no reason to apply the reasonable doubt standard required
by Apprendi for “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum . . . .” (Apprendi, supra, 530 U.S. at p. 490;
Marchand, supra, 98 Cal.App.4th at p. 1065.) That holding comports with
our Supreme Court’s subsequent holding in Mosley, supra, 60 Cal.4th at page
1067, that sex offender registration imposed under section 290.006 (even in
light of the residency restrictions set forth in section 3003.5, subdivision (b))
does not constitute punishment or penalty for the purpose of Apprendi. (See
also People v. Picklesimer (2010) 48 Cal.4th 330, 343-344 (Picklesimer)
[Apprendi’s requirement of a finding beyond a reasonable doubt, made by a
jury, has no application to a trial court’s findings requiring sex offender
registration].) We discuss this aspect of Mosley’s holding in the next section
of our opinion.
12
found true by a preponderance of the evidence. (§ 290.006.)” (Mosley, at p.
1052, fn. 4, italics added.) Although the pertinent discussion in both
McCullough and Mosley are dicta because they were not necessary to the
outcome of those opinions, “[o]ur Supreme Court’s dicta are ‘highly
persuasive,’ and we will generally follow it unless there is a compelling
reason not to do so.” (Masellis v. Law Office of Leslie F. Jensen (2020) 50
Cal.App.5th 1077, 1093.)
Citing constitutional principles of equal protection, Lau contends that
because “[a] defendant charged with a crime requiring mandatory
registration under section 290 will be required to register only if the crime is
proven beyond a reasonable doubt[,]” the same standard should apply when
the trial court makes a finding to support a discretionary registration order
under section 290.006 that the defendant committed the crime as a result of
sexual compulsion or for purposes of sexual gratification. Although neither
Marchand, Mosley, nor McCullough addressed whether principles of equal
protection require the application of a beyond a reasonable doubt standard of
proof under section 290.006, as we will explain, we conclude that Lau’s equal
protection argument lacks merit and does not present a sound reason for us
to diverge from our Supreme Court’s statements in McCullough and Mosley
about the applicable standard of proof.
Where, as here, no suspect class or fundamental right is involved, “[i]n
order to decide whether a statutory distinction is so devoid of even minimal
rationality that it is unconstitutional as a matter of equal protection, we
typically ask two questions. We first ask whether the state adopted a
classification affecting two or more groups that are similarly situated in an
unequal manner. . . . If we deem the groups at issue similarly situated in all
material respects, we consider whether the challenged classification
13
ultimately bears a rational relationship to a legitimate state purpose. . . . A
classification in a statute is presumed rational until the challenger shows
that no rational basis for the unequal treatment is reasonably conceivable.”
(People v. Chatman (2018) 4 Cal.5th 277, 289 (Chatman), citations omitted.)
Without deciding whether the two groups of defendants Lau compares
are similarly situated, the equal protection argument fails because a “rational
basis for the unequal treatment is reasonably conceivable.” (Chatman, supra,
4 Cal.5th at p. 289.) The Legislature has determined that persons convicted
of the crimes enumerated in section 290, subdivision (c) are “ ‘ “deemed . . .
likely to commit similar offenses in the future.” ’ ” (In re Alva (2004)
33 Cal.4th 254, 264.) In contrast, defendants convicted of crimes not
enumerated in section 290, subdivision (c) have not committed the type of
crime that legislatively deems them likely to reoffend. Thus, there is a
reasonable ground to require a separate finding by the trial court under the
preponderance of the evidence standard to impose a registration requirement
under section 290.006 for those defendants. Only for a defendant who did not
commit one of the enumerated sex crimes does it make sense for the trial
court to make a finding that the defendant committed the crime as a result of
sexual compulsion or for purposes of sexual gratification.
Lau also contends that because of the burdens associated with sex
offender registration, we should depart from the default preponderance of the
evidence standard set forth in Evidence Code section 115, and, at a
minimum, apply a clear and convincing standard of proof. We reject the
argument. In stating that the preponderance of the evidence standard
applies “[e]xcept as otherwise provided by law,” Evidence Code section 115
“means, ‘unless a heavier or lesser burden of proof is specifically required in a
particular case by constitutional, statutory, or decisional law.’ ” (People v.
14
Burnick (1975) 14 Cal.3d 306, 314, italics omitted; see also People v.
Arriaga (2014) 58 Cal.4th 950, 962 [“If the Legislature has not established a
standard of proof, a court must determine the appropriate standard by
considering all aspects of the law”].) Lau has cited no constitutional,
statutory, or decisional law endorsing a departure from the preponderance of
the evidence standard in the context of section 290.006. In the absence of any
contrary authority, we follow Marchand, as well as our Supreme Court’s dicta
in both McCullough and Mosley, to conclude that the trial court properly
applied the preponderance of the evidence standard in requiring sex offender
registration under section 290.006. (Marchand, supra, 98 Cal.App.4th at pp.
1063-1065; McCullough, supra, 56 Cal.4th at p. 598; Mosley, supra, 60
Cal.4th at p. 1052, fn. 4.)
B. The Trial Court Did Not Err By Basing Its Order on Facts Found by the
Court Rather Than by the Jury
We next address an argument that Lau acknowledges is foreclosed by
binding authority from our Supreme Court but that he asserts to preserve for
future review. Specifically, Lau contends that, pursuant to Apprendi,
supra, 530 U.S. at page 490, the facts underlying an order to register as a sex
offender under section 290.006 must be made by a jury rather than by the
trial court.
“[I]n Apprendi, the high court established that a criminal defendant
generally has the Sixth Amendment right to a jury determination, beyond
reasonable doubt, of ‘any fact that increases the penalty for a crime beyond
the prescribed statutory maximum.’ ” (Mosley, supra, 60 Cal.4th at p. 1054.)
In Mosley, as in this case, the defendant relied on Apprendi, claiming that
“his registration order is invalid because it increased the maximum penalty,
or punishment, for his simple assault conviction and was imposed solely on
the basis of findings made by a judge, not a jury.” (Ibid. [analyzing the effect
15
of a sex offender registration order made under section 290.006, including the
residency restrictions imposed by § 3003.5, subd. (b)].) Mosley rejected the
argument, holding that Apprendi did not require that the facts supporting an
order requiring registration as a sex offender be found by a jury. (Mosley, at
p. 1050.) As Mosley explained, sex offender registration is “a legitimate,
nonpunitive regulatory device” and thus does not constitute a penalty for
purposes of Apprendi. (Mosley, at p. 1050.)
Prior to Mosley, our Supreme Court reached the same conclusion in
Picklesimer, supra, 48 Cal.4th at page 343, in which it rejected the argument
that “application of section 290.006 is unlawful because it permits imposition
of heightened punishment based on findings of fact by a trial court rather
than a jury, in violation of Apprendi . . . and its progeny.” Picklesimer
observed that “ ‘sex offender registration is not considered a form of
punishment under the state or federal Constitution[,]’ ” and accordingly
concluded that “Apprendi’s requirement that ‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt’ . . . has no application here.” (Picklesimer, at pp.
343-344.)
Lau contends that despite these authorities we should conclude that
the facts supporting an order requiring registration under section 290.006 be
found by a jury because “sex offender registration is punishment with[in] the
meaning of the federal and State Constitutions . . . .” We reject Lau’s
argument, as we are bound to follow our Supreme Court’s holding in Mosley
and Picklesimer. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
C. The Trial Court Did Not Base Its Ruling on Unreliable and Unproven
Facts
16
Lau argues that the trial court’s registration order should be reversed
because it was based on unproven and unreliable facts, the consideration of
which violated his right to due process and created a fundamentally unfair
proceeding.6
To support his argument, Lau contends that the trial court premised its
registration order, at least in part, on prior convictions and uncharged crimes
that the People described in their sentencing statement. Specifically, in
arguing that Lau should be required to register as a sex offender, the People’s
sentencing statement described uncharged sexual assaults that Lau allegedly
committed against two different women in 2017 and 2018. It also described a
misdemeanor sex crime conviction in Oregon in 1991 that required Lau to
register as a sex offender in that state, and two convictions for failing to
register as a sex offender—one in Nevada in 1999 and one in California in
2006. The sentencing statement explains that the prosecutor unsuccessfully
attempted to obtain information about those cases. Both in the sentencing
statement and at the sentencing hearing, the prosecutor referred to Lau’s
“RAPs” as the source of the information about the prior convictions, but no
documentation was provided to the trial court. Lau contends that the trial
6 For his due process argument, Lau cites People v. Eckley (2004) 123
Cal.App.4th 1072, 1080. “Although not all the procedural safeguards
required at trial also apply in a sentencing or probation hearing, such a
hearing violates due process if it is fundamentally unfair. (People v. Peterson
(1973) 9 Cal.3d 717, 726.) ‘Reliability of the information considered by the
court is the key issue in determining fundamental fairness’ in this context.
(People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) A court’s reliance, in its
sentencing and probation decisions, on factually erroneous sentencing reports
or other incorrect or unreliable information can constitute a denial of due
process. In Townsend v. Burke (1948) 334 U.S. 736, 741, a defendant ‘was
sentenced on the basis of assumptions concerning his criminal record which
were materially untrue.’ This was ‘inconsistent with due process of law’ and
required reversal.” (Eckley, at p. 1080.)
17
court must have relied on this criminal history as part of its order requiring
him to register as a sex offender, and that the trial court therefore violated
his right to due process by basing its order on unreliable and unproven facts.
We reject the argument because the trial court was very clear about the
evidence upon which it relied in making its registration order. That evidence
did not include any of Lau’s uncharged crimes or his previous convictions.
Specifically, the trial court explained that it “looked at the recorded
statements of the Defendant that he made to [the detectives] on October 26,
2018, that was made part of the record.” The trial court went on to read
extensively from the transcript of that interview. The trial court then stated,
“So the Court looked at all of the statements made by the
Defendant at the time that the detectives were conducting an
investigation, and the Court finds that there is a preponderance
of the evidence that it is more likely true than not true that the
offense, the assault in this case was committed for purposes of
sexual gratification, or as a result of sexual compulsion.
“The Defendant’s very own statements corroborate the
account given by the victim about what happened between them
on October 21, 2018, and establish by a preponderance of the
evidence that the assault was for sexual compulsion and sexual
gratification.
“Further, the statements of the Defendant give us an
indication that Defendant has had this problem before. This is
not the first time. And it concerns the Court that without
registration he is likely to do it again.
“Hence, it appears to the Court the Defendant is physically
dangerous to the public and at serious risk of reoffending. For all
these reasons, pursuant to Penal Code section 290.006(a), the
Court is ordering sex offender registration.”
We see no indication in these comments that the trial court based its
ruling, in any part, on the prior convictions and uncharged acts described in
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the People’s sentencing statement. Lau points out that the trial court stated
that Lau “has had this problem before” and “[t]his is not the first time.”
According to Lau, this statement shows that the trial court relied on the
criminal history described in the People’s sentencing statements. Lau’s
contention fails because the trial court referred solely to Lau’s admissions to
the detectives to support this assertion, stating that “the statements of the
Defendant give us an indication that Defendant has had this problem before.
This is not the first time.” (Italics added.) Indeed, during his police
interview, Lau made several statements that the trial court could reasonably
interpret as referring to past sexual assault accusations against him.
We accordingly reject Lau’s contention that the trial court violated his
right to due process by basing its registration order on unreliable and
unproven facts.
D. The Trial Court’s Registration Order Was Supported by Substantial
Evidence
Lau’s final contention is that the evidence does not support the trial
court’s registration order.
As an initial matter we address the applicable standard of review. The
imposition of a registration order under section 290.006 is within the
discretion of the trial court, and thus is subject to an abuse of discretion
review. (Cf. Hofsheier, supra, 37 Cal.4th at p. 1197 [“the statute gives the
trial court discretion to weigh the reasons for and against registration in each
particular case”].) However, “[t]he abuse of discretion standard is not a
unified standard; the deference it calls for varies according to 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-
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712.) Accordingly, because Lau challenges the evidentiary support for the
trial court’s imposition of the registration order, we will apply a substantial
evidence standard of review. (Lewis, supra, 169 Cal.App.4th at p. 79
[analysis of whether substantial evidence supported trial court’s
discretionary decision to require sex offender registration].)
As a basis for its registration order, the trial court found “that there is
a preponderance of the evidence that it is more likely true than not true that
the offense, the assault in this case was committed for purposes of sexual
gratification, or as a result of sexual compulsion.” Lau contends that even
under the preponderance of the evidence standard of proof, there is no
substantial evidence for the trial court’s finding because Mary’s credibility
“was utterly lacking under any standard of proof. She was a serial liar.” Lau
further argues that although he admitted to the detectives that he engaged in
sexual activity with Mary, the trial court should have “accepted [Lau’s]
explanation” that he made the admission only because he was badgered by
the detectives. Lau contends that if Mary’s testimony is discredited and his
own statements to the detectives are disregarded as false admissions, no
substantial evidence supports the trial court’s finding that he assaulted Mary
for purposes of sexual gratification or as a result of sexual compulsion.
We reject Lau’s challenge to the sufficiency of the evidence. The trial
court was not bound by the jury’s verdict for purposes of exercising its
discretion under section 290.006, and thus was not required to make the
same credibility determinations as the jury. (See Mosley, supra, 60 Cal.4th
at p. 1049 [trial court properly made its own finding that defendant’s assault
was committed as a result of sexual compulsion or for purposes of sexual
gratification even though the jury acquitted the defendant of a lewd act
charge and convicted him only of simple assault].) Indeed, “ ‘[i]n order to
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make a discretionary determination as to whether or not to require
registration [under section 290.006], the trial court logically should be able to
consider all relevant information available to it at the time it makes its
decision.’ ” (Lewis, supra, 169 Cal.App.4th at p. 79.) “[I]t is the exclusive
province of the trial judge or jury to determine the credibility of a witness,”
and “we must accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.” (People v.
Jones (1990) 51 Cal.3d 294, 314).
Having decided to credit Mary’s testimony about the assault and
disbelieve Lau’s contention that he made false admissions to the detectives,
the trial court had ample evidence before it in the form of Lau’s own
statements to the detectives and Mary’s trial testimony to support a finding
that Lau assaulted Mary for purposes of sexual gratification or as a result of
sexual compulsion.
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DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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