People v. Marchand

Opinion

In Apprendi v. New Jersey (2000) 530 U.S. 466 [ 120 S.Ct. 2348 , 147 L.Ed.2d 435 ] (Apprendi), the United States Supreme Court held that under the Fourteenth Amendment to the United States Constitution, “ ‘any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 476 [120 S.Ct. at p. 2355], quoting Jones v. United States (1999) 526 U.S. 227 , 243, fn. 6 [ 119 S.Ct. 1215 , 1224, 143 L.Ed.2d 311 ].) Under subdivision (a)(2)(E) of Penal Code section 290 (hereafter section 290(a)(2)(E)), the court may require a defendant convicted of any crime to register as a sex offender “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.” Section 290(a)(2)(E) 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. (See Evid. Code, § 115.)

In this case, following a court trial in which defendant was found guilty of stalking two young women, the court required defendant to register as a sex offender under section 290(a)(2)(E). On appeal, defendant contends that, by doing so, the trial court violated his due process rights under Apprendi because the court did not first find beyond a reasonable doubt that he stalked the young women “as a result of sexual compulsion or for sexual gratification.” We conclude defendant waived this claim of error by failing to raise it in the trial court and, in any event, Apprendi does not apply here because requiring a defendant to register as a sex offender is not punishment or penalty for purposes of the due process clause of the Fourteenth Amendment. In the unpublished part of our opinion, we reject his other claim of error. Accordingly, we shall affirm the judgment.

For our purposes, the underlying facts are largely irrelevant. Suffice it to say that the evidence showed defendant stalked two young women, one in violation of a restraining order. Defendant was charged with two felony counts of stalking (Pen. Code, § 646.9, subds. (a) & (b)) and seven misdemeanor counts of disobeying a court order (Pen. Code, § 273.6). After defendant waived his right to a jury trial, the matter was tried to the court, which found him guilty of both felony counts and six of the seven misdemeanor counts.

At the sentencing hearing, after asking the court to impose 10-year restraining orders, the prosecutor requested that the court also require defendant to register as a sex offender:

“[The Prosecutor]: And also asking for registration as a sex offender which is another provision that’s provided.

“The Court: I understand that’s optional.

“[The Prosecutor]: Optional. Totally discretionary with the Court, but I believe it’s appropriate here. Even though there was no direct sexual contact, the Court heard the letters, and through the letters, in fact, there were dozens and dozens of letters written during the pendency of this case and before where there was very, very sexually suggestive wording. There were, in fact, pornographic suggestions. There was [szc] suggestions of graphic sex.

“And what I’m afraid of now in looking at this most recent letter now, the letters that were taken from his cell, the language seems to be getting even more graphic. The sexual connotations even more graphic.”

The prosecutor went on to argue “it’s appropriate in this case to have [defendant] register as a sex offender based on the age of the victims in this case, as well as the sexual content of his letters directed toward those victims, Your Honor.”

Defense counsel objected to imposition of the registration requirement, arguing that “the [Penal Code section] 290 registration requirement is something that is in place for extremely serious sex offenders” and that defendant’s conduct did not “rise[] to the level where he would have to register for the rest of his life . . . .” Defense counsel also stated his belief that requiring sex offender registration was not “necessary in this case” to deter future misconduct by defendant. Noting defendant’s objection, the court nonetheless imposed the sex offender registration requirement as part of defendant’s sentence.

Having concluded defendant waived his constitutional claims, we nonetheless exercise our discretion to address those claims on the merits as they present important questions of constitutional law. (See People v. Brown (1996) 42 Cal.App.4th 461 , 471 [ 49 Cal.Rptr.2d 652 ] [appellate court may examine constitutional issues raised for first time on appeal, especially when enforcement of penal statute is involved].) We conclude, however, that defendant’s due process rights were not violated because sex offender registration is not punishment or penalty for purposes of the due process clause of the Fourteenth Amendment.

Under Apprendi, supra, 530 U.S. 466 , the fact that defendant committed his crimes as a result of sexual compulsion or for purposes of sexual gratification had to be alleged in the information and proven beyond a reasonable doubt only if requiring defendant to register as a sex offender would increase the penalty for stalking beyond the prescribed statutory maximum. (See id. at p. 490 [120 S.Ct. at pp. 2362-2363].) If sex offender registration does not constitute punishment for purposes of the due process clause of the Fourteenth Amendment, then Apprendi does not apply and no due process violation occurred here.

Our Supreme Court recently addressed whether sex offender registration under Penal Code section 290 constituted punishment for purposes of the

In Mendoza-Martinez, the United States Supreme Court confronted whether statutes automatically divesting an American of citizenship for leaving or remaining outside the United States at time of war and national emergency for the purpose of evading military service were unconstitutional in that those statutes imposed a criminal penalty without due process of law. (Mendoza-Martinez, supra, 372 U.S. at pp. 146, 163-164 [83 S.Ct. at pp. 556, 565].) In determining the sanction at issue was criminal rather than civil, the court identified various “tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character,” including “[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.” (Mendoza-Martinez, supra, 372 U.S. at pp. 168-169 [83 S.Ct. at pp. 567-568], fns. omitted.)

Justice Kennard determined that application of the Mendoza-Martinez “factors” to the sex offender registration requirement “supports the conclusion that registration is not punishment.” (Castellanos, supra, 21 Cal.4th at p. 804 (conc. & dis. opn. of Kennard, J.).) As Justice Kennard explained:

If the test for determining whether sex offender registration is punishment for purposes of the due process clause under Apprendi is the same as the test for determining whether registration is punishment for purposes of the constitutional prohibition against ex post facto laws, then we are bound by the result the majority reached in Castellanos regardless of the analytical disagreement between Chief Justice George and Justice Kennard in that case. Recognizing this, defendant argues Castellanos does not govern here. Defendant contends the Castellanos court “limited its holding to the ex-post-facto clause” and “did not purport to address any issues of due process, notice, proof beyond a reasonable doubt, and the right to a jury trial.” This contention is of no assistance to defendant.

As noted above, Chief Justice George explained that while “the method of analyzing what constitutes punishment varies depending upon the context in which the question arises [,] . . . two factors appear important in each case: whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent.” (Castellanos, supra, 21 Cal.4th at p. 795 (lead opn. of George, C. J.), italics added.) Defendant fails to explain why these two factors, which a majority of our Supreme Court found dispositive in the ex post facto context, are not similarly dispositive in determining whether registration constitutes punishment for purposes of the due process clause under Apprendi.

Defendant points out that in In re Reed (1983) 33 Cal.3d 914 [ 191 Cal.Rptr. 658 , 663 P.2d 216 ], the court held the sex offender registration requirement was a form of punishment within the meaning of the prohibition