Filed 1/27/15 P. v. Arrendondo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060232
v. (Super.Ct.No. RIF112896)
JOSEPH MARIO ARREDONDO, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. THE UNDERLYING CASE1
“Defendant, who was married to Christi[]na, was the youth pastor at the New
Beginnings Church in Corona. The youth group met on Sunday mornings and Tuesday
nights. The victims, Andrea Y. and Jessica R., were members of the youth group.
“Jessica first met defendant when she was 14 years old, during the summer before
her sophomore year of high school. Defendant counseled her while her parents were
going through a divorce. Jessica’s mother also wanted her to receive counseling because
of her sexual activity.
“During a retreat the following summer in 2002, Jessica and defendant spent a
significant amount of time together and began developing a mutual attraction for each
other. After the retreat, they continued to spend time with each other outside of church
functions.
“On September 11, 2002, defendant called Jessica and invited her over to his
house. After she arrived, they went into defendant’s bedroom, where they engaged in
vaginal intercourse. They again had sex at defendant’s house about two weeks later.
After the second time, they met together for sex almost once a week. They sometimes
met at a motel to be alone because defendant and his wife shared their home with other
roommates. During one occasion on June 11, 2002, defendant rented a room at the Motel
6 in Corona, where the two engaged in various sex acts, including anal and vaginal
1The facts are taken from our opinion in case No. E039190. (People v. Arredondo (Aug. 21, 2006, E039190) [nonpub. opn.].)
2 intercourse. During another occasion on February 12, 2003, at the same Motel 6,
defendant and Jessica had oral sex and vaginal intercourse.
“Defendant also began counseling Andrea early in her high school years
concerning her relationship with her mother and premarital sex. Their conversations over
the phone and in person became more frequent. Defendant regularly met with Andrea
and Jessica after services on Tuesday nights. Although defendant taught the students to
abstain from premarital sex, he privately told the girls that if he were not married, they
could come to him for sex.
“On April 26, 2003, a couple of days before defendant’s birthday, Andrea and
Jessica invited defendant over to Andrea’s house to give him a birthday gift. The gift
included a pair of handcuffs engraved with their initials “JAJ.” As the three played a
game of truth or dare, they took off some of their clothing and defendant, who used to be
a stripper, demonstrated one of his stripper routines. At one point, Andrea dared
defendant to rent a hotel room for the three of them. Defendant rented a room at the
Econo Lodge in Riverside. After Andrea and Jessica met defendant at the motel, they
took turns performing various sex acts with each other, including oral sex, digital
penetration, and vaginal intercourse. Defendant also instructed the girls to touch each
other’s vagina while having sex with him.
“On the following day at church, defendant told the girls that they should continue
having sex with him. Defendant met Andrea later that day and had vaginal intercourse
with her in the back seat of her car.
3 “On April 28, 2003, Andrea met with defendant at his house. Inside defendant’s
bedroom, he orally copulated Andrea and then engaged in digital penetration and vaginal
intercourse. During another incident at defendant’s house in May, defendant penetrated
Andrea’s vagina with his finger and then had vaginal intercourse with her on the floor.
Also in May, Andrea drove the three of them down an alley, where defendant had vaginal
intercourse with Jessica in the backseat of Andrea’s car.
“At a graduation party in June of 2003, Andrea told Casandra McCoy, who used to
attend the New Beginnings youth group, about her sexual relationship with defendant.
Cassandra also was good friends with Christina, defendant’s wife. Andrea provided
specific details concerning the sexual encounters, including the occasion at the motel
with Jessica. After learning about the relationship, Cassandra told her sister and other
members of her family and the church. She also told defendant’s wife.
“Once confronted, Andrea denied the relationship to her father and to the pastoral
staff at New Beginnings. Andrea, however, later admitted the relationship to her
stepmother, who then took her to the Corona Police Department. During the police
interview, Andrea initially mentioned only the April 26, 2003, incident.
“Jessica’s last sexual encounter with defendant was on June 17, 2003. On the
following day, during a meeting with the senior pastor at New Beginnings, Jessica denied
having a sexual relationship with defendant. Despite Jessica’s denials, Jessica’s mother
took her to the police station. Jessica eventually disclosed to the police the details of the
sexual encounters.
4 “Detective Randy Ryder confirmed that defendant had rented a room at the Econo
Lodge on April 26, 2003. He also confirmed that defendant had reserved a room at the
Motel 6 in Corona on eight separate occasions, including the two specific dates provided
by Jessica.
“Defendant denied having sex with the two girls. Defendant explained that he
rented the rooms at the Motel 6 either to have sex with his wife or for the homeless.
Defendant’s wife, Christina, corroborated defendant’s story and said that she and
defendant often rented motel rooms for privacy because they shared their house with
other roommates, including her father. As to the room at the Econo Lodge, defendant
admitted that he was with Andrea and Jessica and that he rented the room as a joke
during a truth-or-dare game. According to defendant, they never used the room.” (Opn.
at pp. 3-6.)
B. PROCEDURAL HISTORY
On March 29, 2005, a jury convicted defendant and appellant Joseph Mario
Arredondo, Jr., of eight counts of unlawful sexual intercourse with a minor more than
three years younger than defendant under Penal Code section 261.5, subdivision (c);2
three counts of unlawful oral copulation with a minor under section 288a, subdivision
(b)(1); three counts of unlawful penetration of a minor with a foreign object under section
289, subdivision (h); and one count of unlawful sexual intercourse with a minor under 16
years of age by a person over 21 years of age under section 261.5, subdivision (d).
2 All further statutory references are to the Penal Code unless otherwise indicated.
5 Thereafter, the trial court granted defendant’s motion for a new trial. The
prosecutor appealed. On August 21, 2006, in case No. E039190, we reversed the trial
court’s grant of a new trial.
On January 19, 2007, the trial court sentenced defendant to 13 years, 4 months in
prison, and ordered that he register as a sex offender under section 290. Defendant
appealed his conviction and we affirmed the judgment on June 20, 2008, in case No.
E042647.
On December 7, 2012, defendant filed a petition for writ of habeas corpus in
Riverside County Superior Court challenging the mandatory sex offender registration
requirement under section 290. The trial court elected to treat defendant’s writ of habeas
corpus as a writ of mandamus. On December 12, 2012, the court invited the prosecutor
to submit an informal response to the petition. In the informal response, the prosecutor
agreed that an Order to Show Cause should issue, but requested permission to file a
formal response. Defendant filed a reply on February 28, 2013. The trial court
determined that defendant had stated a prima facie basis for relief, issued an Order to
Show Cause, and appointed counsel for defendant.
On July 15, 2013, the trial court found that the mandatory registration requirement
of section 290 was unconstitutional as applied to defendant under People v. Hofsheier
(2006) 37 Cal.4th 1185; concluded that section 290.006’s discretional registration
requirement was constitutional; and ordered an evidentiary hearing to determine whether
defendant should be required to register as a sex offender under section 290.006.
6 On October 17, 2013, the trial court held an evidentiary hearing and ordered
defendant to register as a sex offender under section 290.006.
On December 16, 2013, defendant filed a notice of appeal. On appeal, defendant
contends the trial court abused its discretion in imposing the discretionary lifetime sex
offender registration under section 290.006 because the court: (1) failed to make any
finding with respect to the likelihood he would reoffend; (2) failed to provide any
statement of reasons as to why defendant’s offenses made it likely he would reoffend;
and (3) failed to consider defendant’s behavior since his original sentencing in
determining whether he would likely reoffend. For the reasons set forth below, we
affirm.
DISCUSSION
A. THE TRIAL COURT PROPERLY IMPOSED LIFETIME
REGISTRATION UNDER THE DISCRETIONARY PROVISIONS OF
SECTION 290.006
Defendant contends that the trial court abused its discretion in imposing
discretionary lifetime sex offender registration under section 290.006 because the court
failed to: (1) make any finding with respect to the likelihood he would reoffend; (2)
provide any statement of reasons as to why defendant’s offenses made it likely he would
reoffend; and (3) consider defendant’s behavior since the time of his original sentencing
in determining whether he would likely reoffend.
7 1. RELEVANT PROCEEDINGS
In the People’s “Hearing Brief Regarding Discretionary Sex-Offender
Registration,” the prosecutor argued in favor of lifetime registration based upon the
likelihood that defendant would reoffend. In support, the prosecutor pointed to the nature
of the crimes for which defendant was convicted, and his subsequent conduct involving
his second wife and their child custody dispute.
In defendant’s brief, he urged the court not to impose lifetime registration. He
argued that there was no evidence he was likely to reoffend in the future. In support,
defendant pointed to the fact that there had been no allegations of sexual misconduct
against him in the 10 years between his last known offense and resentencing, and there
was no evidence of any disciplinary actions taken against him during his incarceration.
At the evidentiary hearing on October 17, 2013, defense counsel argued that the
court was required to consider all of defendant’s conduct up to the time of sentencing,
which included “anything in the intervening time from the incident until now” under
Lewis v. Superior Court (2008) 169 Cal.App.4th 70 (Lewis), and People v. Garcia (2008)
161 Cal.App.4th 475 (Garcia), disapproved on other grounds by People v. Picklesimer
(2010) 48 Cal.4th 330, 338-339, fn. 4. Counsel noted that the last count for which
defendant was convicted occurred on June 17, 2003, he was out of custody until
September 2006, and then served six years in prison. Defense counsel argued that “if this
court looks at that time from June of 2003 until now, there are no allegations of
misconduct, there are no allegations of even [defendant] putting himself in a situation
where there could be misconduct.”
8 The prosecutor acknowledged that there had been no known allegations of sexual
misconduct against defendant since 2003. The prosecutor, however, explained that from
2003 to 2006, defendant “was facing felony criminal charges here in Riverside County or
he was out on bail pending the People’s appeal from the first trial.” Defendant then
served six years in prison. Although defendant had been released from prison in March
2013, he was not set free. Instead, he was transferred to jail in Yavapai County, Arizona,
where there were pending charges against him involving harassment of his second wife.
Accordingly, defendant only had really been out of custody for two of the eight years
between the conviction for his last offense and his resentencing.
Moreover, the prosecutor argued that defendant’s prior offenses, which occurred
while he was a youth pastor at a church, were extremely serious. “He was actually tasked
with counseling young women on abstinence. And instead of doing that, he was actually
having—engaging in various sexual acts with a 15- and 17-year-old girl. At times
together, all three of them.”
The prosecutor went on to note that defendant had not taken responsibility for his
actions, as evidenced by the fact that defendant had filed various habeas petitions over a
period of six to eight years wherein he denied “any culpability, saying the girls are lying,
everybody was against him.”
The court asked the parties whether it could consider all of defendant’s conduct up
to the time of resentencing in deciding whether to impose lifetime registration under
section 290.006. Both parties agreed it could.
9 The court then explained that it was not going to consider defendant’s
postsentencing proceedings involving his former wife because “sometimes people can get
a little heated in their divorce proceedings.” Instead, the court stated it was going to
focus “most on the conduct before sentencing as opposing to focusing on the conduct
after sentencing because . . . this is, in a sense, a resentencing.” The court then stated,
“So, I’m focusing just on the things that happened before sentencing, the things that he
was convicted of, and the circumstances surrounding the acts which caused him to be
convicted of the crimes.”
The court explained that it was imposing the lifetime registration requirement
because defendant is a “sexual predator,” and a “danger to society,” who would not have
stopped his behavior “but for the fact that one of the girls told the wrong person what was
going on.”
2. STANDARD OF REVIEW
The standard of review for reviewing a trial court’s decision to require registration
under section 290.006 is abuse of discretion. In applying this standard, “[b]road
deference must be shown to the trial judge. The reviewing court should interfere only
‘“if [it] find[s] that under all the evidence, viewed most favorably in support of the trial
court’s action, no judge could reasonably have made the order that he did.” [Citations.]’
[Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
10 3. RELEVANT LAW
For certain sexual offenses that do not require mandatory lifetime registration
under section 290, the trial court still has the discretion to impose a registration
requirement under section 290.006, where it (1) finds the defendant committed the
offense due to “sexual compulsion” or “for purposes of sexual gratification” and states
the reasons for its findings; and (2) states its reasons for requiring lifetime registration.
(§ 290.006; People v. Hofsheier, supra, 37 Cal.4th at p. 1197.)
“Where registration is discretionary . . . one consideration before the court must be
the likelihood that the defendant will reoffend.” (Garcia, supra, 161 Cal.App.4th at pp.
483-485; see also People v. Thompson (2009) 177 Cal.App.4th 1424, 1431.) In making
that determination, at a Hofsheier hearing, the court may consider not only defendant’s
prior offenses, but also his behavior since the time of his original sentencing. (Garcia, at
p. 485.)
4. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
In this case, the record shows that the trial court went through a thoughtful and
thorough analysis when exercising its discretion to impose lifetime registration for
defendant. The court, after hearing both sides, stated:
“I see sophistication. This is a youth pastor tasked with helping out some young
girls. And as opposed to helping them, he seduced them. . . . He often planned meetings
at motels, how to get around his wife at the time or make sure that she was not knowing
about what he was doing and fooling other adults, including his fellow pastors and the
lead pastor at his church. And he took—not only did he not inform them, but he took the
11 steps to make sure that they didn’t find out what he was doing. It looked like a very
sophisticated and ongoing enterprise by the gentleman until one of the girls told another
person who told his wife who then blew the whistle. So there’s no indication to me that it
would have stopped but for the fact that one of the girls told the wrong person what was
going on.
“So to me, he’s a sexual predator. Not of strangers—I don’t believe he’s going to
go off and snatch somebody off the street—but of people that he knows, people that come
within his purview as a church pastor or whatever. You know, people that he can meet. I
think he is actually a danger to society. And if I had heard the trial and all the facts that I
have in front of me, which is pretty voluminous, I would exercise my discretion then and
now to require a lifetime registration.”
Based on the above statement by the court, we find the record shows that the trial
court made an implicit finding that defendant was likely to reoffend. The court made it
clear defendant is a sexual predator, and is a danger to society. The court believed
defendant would target people he knows. Moreover, the court made it clear that
defendant only stopped molesting his two victims after he was caught, not by his own
volition. Based on the evidence and statement by the court, we discern no abuse of
discretion. In fact, based on the facts, we may have found it to be an abuse of discretion
had the trial court decided defendant did not need lifetime registration as a sex offender.
12 The record additionally shows the court knew that, in determining whether
defendant was likely to reoffend, it could consider his behavior from the time of his last
known offense in 2003 until the time of his Hofsheier hearing. As provided above, the
court specifically asked the parties if it could consider all of defendant’s conduct up to
the time of resentencing in deciding whether to impose lifetime registration under section
290.006. Both parties agreed the court could. The court then explained it was not going
to consider defendant’s postsentencing proceedings involving his former wife because
“sometimes people can get a little heated in their divorce proceedings.” Instead, the court
stated it was going to focus on defendant’s prior convictions and the circumstances
surrounding those acts. However, as explained above, because defendant was either out
on bail or in custody for a majority of the time between his offenses and the hearing,
there was very little else for the court to consider.
In his hearing brief, defense counsel made it clear that there had been no
allegations of sexual misconduct against defendant in the past 10 years between his last
known offense and resentencing, and there was no evidence of any disciplinary actions
taken against him during his incarceration. Defense counsel reiterated this argument at
the hearing on the motion. Counsel also reminded the court that case law required the
trial court to consider all of defendant’s conduct up to the time of resentencing. The
court, therefore, was obviously aware of this evidence, but ultimately determined that the
gravity of defendant’s actions and the danger he posed to society outweighed his
postsentencing behavior.
13 Defendant’s reliance on Garcia, supra, 161 Cal.App.4th 475, in his reply brief, is
misplaced. In that case, the appellate court reversed the trial court’s order requiring
lifetime registration because the trial court failed to consider information about the
defendant’s behavior subsequent to committing his offense “in exercising its discretion to
require defendant to register as a sex offender.” (Id. at p. 485.) The appellate court
ordered the trial court, at the new hearing, to “consider the evidence defendant presented
as to his good behavior and rehabilitation.” (Ibid.) The facts in this case are different.
Here, there is ample evidence showing that the trial court considered defendant’s
postoffense actions. In fact, the court was generous in that it declined to consider
defendant’s postsentencing proceedings involving his former wife.
Moreover, defendant’s reliance on Lewis, supra, 169 Cal.App.4th 70, is also
misplaced. In that case, the 22-year-old defendant was convicted of two counts of oral
copulation with a 17-year-old minor. Twenty years later, the defendant filed a motion in
the superior court asking it to lift the lifetime registration requirement under section 290.
He also argued that discretionary registration under section 290.006 was not warranted
because the defendant had not committed a registerable offense in the previous 20 years.
(Lewis, at p. 73.) The trial court ordered the defendant to register under section 290.066.
(Lewis, at p. 75.)
The court of appeal reversed and directed the trial court to strike the registration
order. (Lewis, supra, 169 Cal.App.4th at pp. 77-78, 80.) It explained that the record
from the 1987 conviction was “incomplete and inaccurate.” (Id. at p. 79.) Moreover the
facts the court had before it did not suggest that the defendant was likely to prey upon
14 young girls or to commit registerable sex offenses. While the victim was a minor, she
was 17 years old and the defendant was only 22 years old. Moreover, there was no
substantial evidence that the offenses were committed by means of force, violence or
duress. Additionally, in the 20 years since his conviction, the defendant had not
committed any offenses requiring him to register as a sex offender or offenses similar to
those requiring registration. Thus, nothing in the record showed that the defendant was
likely to reoffend. (Id. at pp. 78-79.)
This case is different. Here, defendant had only been out of custody for
approximately two of the eight years from the time of his conviction to his resentencing.
Thus, he had not gone 20 years without reoffending like the defendant in Lewis.
Moreover, the victims in this case were much more vulnerable than the victim in Lewis.
Here, both victims were members of the church where defendant, who was 28 years old,
worked as the youth pastor—in a position of authority. He had been specifically
entrusted to counsel the girls, one of whom was only 15 years old, about abstinence.
Instead of counseling the girls, he engaged in nine months of continued and habitual
unlawful sexual behavior with the victims. Therefore, in this case, we cannot say that the
trial court’s finding that defendant is a “sexual predator” and a “danger to society” who
needs the supervision that registration provides constituted an abuse of discretion.
Indeed, these findings are more than amply supported by substantial evidence.
In sum we find that the trial court did not abuse its discretion in imposing lifetime
registration under section 290.006.
15 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.