PEOPLE v. MORA

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Frank MORA, Jr., Defendant and Appellant.

Cr. F/1830.

Decided: September 12, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Roy M. Dahlberg, Deputy State Public Defender, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Ward A. Campbell, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Defendant pled guilty to one count of indecent exposure (Pen.Code, § 314, subd. 1 2 ) after commencement of trial.   The plea was upon an amended information which named three victims and alleged one prior conviction of misdemeanor indecent exposure.   After return from the Department of Corrections pursuant to a section 1203.03 referral, defendant was sentenced to state prison for the middle term of two years with appropriate time credits.   He now appeals.

STATEMENT OF FACTS

On November 3, 1981, Irene P., aged 17 years, was walking home from Merced High School when the defendant drove over to the sidewalk curb next to her in a “yellow Z–28.”   The defendant exposed and fondled his penis with his hand as he asked Irene if she wanted a ride.   She declined the offer and walked away.

Karen M. testified that in June during the year preceeding the trial, the defendant drove up to the curb next to her as she was walking towards the Merced High School campus with Shirley V.   Karen was then a sophmore at the high school.   The defendant, whose penis was exposed, asked the girls if they wanted to “party” and offered to obtain some marijuana.   The girls said they would wait for his return but when the defendant drove away, the girls ran to the school.

DISCUSSION

I. CERTIFICATE OF PROBABLE CAUSE REQUIREMENT.3

II. DENIAL OF PROBATION.3

III. WHETHER THE REQUIREMENT TO REGISTER AS A SEX OFFENDER IS CRUEL AND UNUSUAL PUNISHMENT.

Relying on the California Supreme Court opinion in In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, defendant contends that to be required to register as a sex offender pursuant to section 290 constitutes cruel or unusual punishment.

Reed determined that ordering sex offenders to register pursuant to section 290 for soliciting “lewd or dissolute” conduct in violation of section 647, subdivision (a), was “out of all proportion to the crime of which petitioner was convicted.”  (Id., at p. 926, 191 Cal.Rptr. 658, 663 P.2d 216.)   It concluded “insofar as section 290 requires such registration of persons convicted under section 647(a), it is void under article I, section 17, of the California Constitution.”  (Ibid.)

The Fourth District Court of Appeal recently extended Reed, holding that the penalty of sex offender registration for misdemeanor indecent exposure constitutes cruel and unusual punishment.  (In re King (1984) 157 Cal.App.3d 554, 204 Cal.Rptr. 39.)

The instant case is distinguishable on the basis that defendant was originally charged with two felony counts of indecent exposure and admitted a prior conviction of misdemeanor indecent exposure.   The amended information charges defendant with one count of felony indecent exposure involving three victims and a prior conviction of a misdemeanor exposure in violation of section 314.1.   The defendant in King pled guilty to one count of misdemeanor indecent exposure, the court suspended imposition of sentence and granted three years summary probation with a condition of sex offender registration.  In re Reed also involved solely misdemeanor conduct.

Thus, we are presented here with this question:  Should the holding of Reed and King, that the continuing penalty of sex offender registration is out of all proportion to the crime of misdemeanor soliciting to or engaging in lewd or dissolute conduct (§ 647, subd. (a)) and misdemeanor indecent exposure (§ 314, subd. 1) be extended to felony indecent exposure?   We conclude it should not.

The King court expressly declined to address the issue of whether sex offender registration is constitutional punishment for persons convicted of felonies under section 314, subdivision 1.   In In re Reed, supra, 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216, our Supreme Court also limited its holding to misdemeanor convictions of violation of section 647, subdivision (a).   It did not address the issue of a felony conviction of violation of such section.

The case of In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 interpreted the constitutional prohibition against cruel or unusual punishment to dictate that the punishment must fit both the crime and the criminal.   In Lynch, the defendant was convicted of the recidivist provision of section 314, he had suffered a prior conviction for indecent exposure, and was sentenced to state prison for one-year-to-life under the then applicable indeterminate sentencing law.   Our Supreme Court concluded there was a “․ vast disproportion between the conduct of which petitioner was convicted and the punishment he has suffered—and still faces.”  (Id., at p. 438, 105 Cal.Rptr. 217, 503 P.2d 921.)

That required registration pursuant to section 290 is “punishment” is not in dispute.   The question is whether the requirement of registration by a convicted recidivist constitutes cruel and unusual punishment.

The Legislature is accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.  (People v. Anderson (1972) 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 493 P.2d 880, cert. den. 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344.)   In In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, our Supreme Court concluded, “․ that in California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (Id., at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)

Reed and King each concluded that required registration by misdemeanants convicted of violation of section 647, subdivision (a) and section 314, constituted cruel and unusual punishment under the proportionality standard enunciated in Lynch.   When applying this same standard to a recidivist felon under section 314, it seems necessary and logical to reach the contrary conclusion.   Unlike the misdemeanant only once convicted, we are not prepared to summarily conclude that the offender who repeats such conduct after initial prosecution and conviction does not represent a substantial danger to society.   Former Justice Richardson's argument in his dissent in Reed is, by analogy, even more convincing when applied to the recidivist felon under section 314.   As the justice stated:

“Although in a particular case the actor's conduct may have stopped short of the completion of a more aggravated offense, surely the Legislature was entitled to conclude that, for policy reasons, registration should extend to all persons convicted of the lewd or dissolute conduct proscribed by section 647, subdivision (a).”  (Id., at p. 929, 191 Cal.Rptr. 658, 663 P.2d 216.)

Nor does comparison of the challenged penalty with those imposed in this state for more serious crimes involving sexual misconduct reflect disproportionality.   Section 290 requires registration of any person convicted of assault with intent to commit rape, sodomy under section 220, or any offense defined in sections 266, 267, 268, 285, 286, 288, and 289, all felonies involving sexual misconduct.   The fact that conviction of violation of section 314, subdivision 1 with a prior conviction limits incarceration in state prison to a substantially shorter term than many of the above listed felonies should not be determinative.   Here, we address only the requirement of registration.

Finally, a comparison of the challenged penalty with those imposed for the same or similar offense in different jurisdictions does not mandate a finding of disporportionality.   Of those states which currently require any kind of sex offender registration, it would appear all of these foreign states require registration for felony sex offenses.  (In re Reed, supra, 33 Cal.3d 914, 925–926, 191 Cal.Rptr. 658, 663 P.2d 216.)

As Justice Richardson also stated in Reed:

“Section 290 serves the legitimate state purpose of facilitating police surveillance of certain convicted sex offenders who are deemed likely to be recidivists.”  (Id., at p. 929, 191 Cal.Rptr. 658, 663 P.2d 216 (dis. opn.), citing Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825–826, 83 Cal.Rptr. 819, 464 P.2d 483.)

The registration requirement of section 314 is now limited to convicted felony recidivists.   As such, the registration requirement of defendant herein and convicted felons similarly situated does not constitute cruel and unusual punishment.

The judgment is affirmed.

FOOTNOTES

2.   All statutory references are to the Penal Code unless otherwise specified.

3.   See footnote 1, ante.

MARTIN, Associate Justice.

ANDREEN, Acting P.J., and QUASCHNICK,* J., concur.

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