Defendant Brian Joseph Eastman was convicted by guilty plea of six counts of misdemeanor disorderly conduct ( Pen. Code, § 647, subd. (j)(2) ),
Defendant appealed to the appellate division.
I. Background
On the evening of March 22, 2013, defendant, who was then 26 years old, followed K.C. around a clothing store and eventually blocked her only exit route, crouched down, and used his cell phone to take pictures "under her skirt." K.C. felt threatened by defendant's conduct. She followed defendant into the parking lot, took down his license plate number, and immediately reported the incident to the store manager and then to the police. The police contacted defendant at his residence, and he quickly admitted that he had " 'screwed up' " and done as K.C. reported. He was arrested, and his cell phone was seized.
Defendant told the police that he had "specifically targeted women wearing skirts," pursued them through the store, and used his cell phone to record under their skirts. He "admitted capturing the video, and then editing it into still frames." Defendant also "acknowledged that the content of the video was sexual, but said that was not his motivation." He claimed that "he enjoyed the challenge of acquiring the footage ...." Defendant "admitted he engaged in this activity for approximately two weeks." The police found video on defendant's cell phone of seven women, which had been recorded on March 22, 2013. His cell phone also contained footage of several different women using bathrooms at residences on multiple occasions in 2012 and 2013.
Defendant asked the court not to require sex offender registration. He had begun psychotherapy on March 27, 2013, and was continuing with this therapy at the time of his November 2014 sentencing. His psychotherapist recommended that he continue treatment for another six to nine months. However, her evaluation was based on her conclusion that defendant did not qualify for a diagnosis of voyeurism because she mistakenly believed that "the incident in question [did not] continue for a period of 6 months." She did not believe that sex offender registration should be required because she thought defendant did not "pose a danger to others or society." Defendant told the court that his psychotherapist had assured him that he was not a sexual deviant and posed no threat to others.
Defendant was also examined by a court-appointed psychiatrist, Dr. Ted R. Greenzang. Defendant misled Greenzang about the duration of his misconduct. He told Greenzang that all of the misconduct occurred during a period of two to three weeks prior to his arrest, and Greenzang erroneously accepted that all of the misconduct occurred during a one month period.
Defendant told the probation officer that "he did not make the recordings for sexual stimulation." He claimed that he engaged in this conduct in response to the "challenge" of " 'getting that shot' " "without getting caught," and "the risk and danger added to the thrill." Defendant asserted that "the videos were never viewed for sexual gratification." The probation officer deemed defendant's explanation "rather absurd" and "a blatant attempt to minimize what is viewed as fairly serious behavior." She was concerned that defendant "has minimized much of his behavior." The probation officer concluded that it was "plausible" that defendant "has, or at some point will,
The prosecutor sought a sentence of three years of probation, one year in jail, "290 registration," and "sex offender terms of probation." The prosecution asked the trial court to exercise its discretion under section 290.006 to require defendant to register as a sex offender under section 290. She agreed with the probation officer that "to say that this conduct is not sexually motivated is completely absurd." In her view, although defendant admitted the acts, there was a "complete lack of [taking] responsibility for the motivation and for the nature of his crimes." She argued that defendant's crimes were "aimed at vulnerable, unsuspecting women," some of whom were "women he's built trust with ...." "To say that there is no risk of recidivism is completely contradictory to the facts in this case and what the defendant, by his own conduct, has shown." She claimed that defendant "tries to pull the wool over the eyes of the medical evaluators."
The court explained that it had ordered the psychiatric report and the probation report and considered defendant's therapist's report "to make sure that no stone was left unturned." Although the court wished it could impose a five-year term of probation rather than three years, that was prohibited by law. The court suspended imposition of sentence and placed defendant on formal probation for three years with a stayed jail term of 210 days.
The court provided a detailed explanation of why it was exercising its discretion to require defendant to register as a sex offender under section 290. "It's a discretionary statute in this particular case, and the court could only find it to be a requirement in a case like this, where the court [finds] ... that these offenses were committed as a result of sexual compulsion or for the purposes of sexual gratification. [¶] ... [T]he statements of Mr. Eastman were troubling to the court to say the least, because they appeared to be extremely self-serving statements on the issue of whether or not he would be required to register pursuant to 290 of the Penal Code." "The fact that the defendant followed the victim on March 22, 2013 ... blocking her in an aisle
The court rejected defendant's proffered explanation and concluded that defendant's "conduct is clearly sexual in nature, and it's the type of conduct that the court would venture to guess, is, in the very least, unsettling to any women who m[a]y be targeted by such conduct, either in the past or in the future." "[A] total of 13 separate women were targeted and imaged in this fashion. It would not be a stretch of the imagination to assume that if someone were surreptitiously filming someone for the sole purpose of trying to do so undetected, the gender of the potential target would be irrelevant." The incidents were not spontaneous but instead "indicative of sophisticated prior planning." "For a court to make a finding that these acts all involving women over an 11-month period were not sexual in nature ... would be woefully unfaithful to the facts of th[is] case. [¶] These were not isolated incidents, these spanned a known period of eleven months." The court was not convinced that defendant's conduct was unlikely to reoccur, noting that "there is no way to know when whatever part of your makeup gets you to do something like that is going to resurface."
Based on these findings, the court concluded "that the offenses committed by the defendant were committed by him as a result of sexual compulsion and for the purposes of sexual gratification" and that defendant should be required "to register pursuant to Penal Code 290 as required by law."
The court noted that the requirement it was imposing that defendant register under section 290 was "why I didn't put him in jail for a year ... because for all intent and purposes, I put him in jail." "[I]f I were going to be a landlord or I'm going to rent or I'm going to have a housemate, and that person were somebody that might violate my privacy in that way, had I known, had any of them known, they never would have put themselves in that position, and that is why I ordered 290 ...." "I would think that anyone that we are going to share a residence with ... would want to know that this is a guy that might put a pinhole camera in a wall and watch you change your clothes or watch you use the bathroom or watch whatever."
Defendant appealed to the appellate division. The appellate division held that the trial court had erroneously believed that it lacked discretion to order defendant to register only as a probation condition for the duration of the probationary period, and it remanded the matter to the trial court to permit it to exercise that discretion. We ordered this case transferred to this court.
II. Discussion
A. Sex Offender Registration May Not Be Imposed As A Probation Condition
Defendant contends on appeal that "sex-offender registration may be imposed solely as a condition of probation outside the boundaries of Penal Code section 290 et seq. " He claims that "neither Penal Code section 290 [n]or section 290.006 limit[s] a court's power to impose sex-offender registration as a condition of probation, and thus outside the boundaries of the Sex Offender Registration Act."
Defendant relies heavily on People v. King (2007)
The sole contention on appeal in King was that because the sentencing trial court had not ordered discretionary registration under section 290.006 's predecessor statute, the defendant's failure to register was not a violation of section 290. ( King , supra ,
Defendant's reliance on People v. Allexy (2012)
On appeal, she challenged the registration requirement on the ground that the court had failed to state reasons as required by section 290.006 and had "violated her right to a jury trial" by imposing the registration requirement. ( Allexy , supra ,
Defendant cites no authority supporting his position but only authority for the well-recognized proposition that trial courts have broad discretion to craft probation conditions. A trial court has "broad discretion to impose such reasonable probation conditions 'as it may determine are fitting and proper to the end that justice may be done ... and generally and specifically for the reformation and rehabilitation of the probationer ....' " ( People v. Chardon (1999)
The "Sex Offender Registration Act" (the Act) was created by the Legislature to serve as a "comprehensive," "standardized, statewide system to identify, assess, monitor and contain known sex offenders for the purpose of reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm." ( §§ 290, subd. (a), 290.03, subds. (a) & (b).) The very nature of a "comprehensive" and "standardized, statewide system" is that it is not amenable to inconsistent directives crafted by individual trial courts in 58 different counties on a case-by-case basis. Just as a trial court may not order an individual to register under section 290 when that individual does not fall within the scope of the Act, a trial court may not order an individual to register under section 290 under conditions that are inconsistent with the requirements of section 290, such as the Act's duration provisions.
Our view of the Act's exclusivity is not novel. In In re Bernardino S. (1992)
The Court of Appeal rejected the Attorney General's contention that the juvenile court had discretion to order registration inconsistent with the provisions of the Act. While acknowledging that juvenile courts have broad discretion to craft dispositional orders, akin to an adult court's discretion to craft probation conditions, the court observed that this power, "while broad, is not boundless." ( Bernardino , supra ,
Defendant claims that Bernardino is irrelevant because it concerned a defendant who was outside the scope of section 290 at a time before discretionary registration existed.
B. No Abuse of Discretion
Defendant claims that the trial court "abused its discretion by failing to make an individualized decision in this case" that sex offender registration was merited. He also claims that the court's order requiring registration was an abuse of discretion because there was no evidence that he was likely to reoffend.
The record refutes defendant's claim that the court failed to make "an individualized decision" on the registration issue. The trial court's statement of its reasons for imposing sex offender registration was lengthy, fact-specific, and highly individualized. The court identified numerous facts supporting its registration decision. First, "[t]he statements of Mr. Eastman were troubling to the court to say the least, because they appeared to be extremely self-serving statements on the issue of whether not he would be required to register pursuant to 290 of the Penal Code." Second, "[t]he fact that the defendant followed the victim on March 22, 2013 ... blocking her in an aisle is of particular concern ... as that contact affects the victim in that incident, that she would feel threatened is hardly surprising." Third, defendant had "specifically targeted women wearing skirts and pursued them throughout a store." Fourth, that defendant "minimized his behavior to report preparers ... is of great concern to the court as to any further danger posed by Mr. Eastman." Fifth, defendant's explanation for his conduct, " 'to see if he could get away with it,' " was "disingenuous to the extreme." Sixth, "a total of 13 separate women were targeted and imaged in this fashion." Seventh, the incidents were not spontaneous but instead "indicative of sophisticated prior planning." Eighth, "[t]hese were not isolated incidents, these spanned a known period of eleven months."
Based on all of these individualized facts, the court concluded that defendant's conduct was likely to reoccur because "there is no way to know when whatever part of your makeup gets you to do something like that is going to resurface." After the court made its registration decision, it noted that requiring registration was necessary to protect those associating with
Defendant's remaining claim is that the trial court's decision was an abuse of discretion because, in his view, "[a]ll of the evidence in this case demonstrated [defendant] is unlikely to reoffend," and "[b]oth his treating therapist and the forensic [psychiatrist] opined that [he] did not pose a current danger to society ...."
Defendant asserts that a discretionary registration decision cannot be upheld unless there is evidence that the defendant is likely to reoffend. To support this proposition, defendant relies on Lewis v. Superior Court (2008)
We need not consider whether the Lewis decision was correct in deeming requisite the likelihood of reoffense because there was ample evidence in this case that defendant was likely to reoffend. Defendant engaged in extremely persistent conduct over a nearly year-long period during which he victimized at least 13 women. His conduct was not passive. He pursued some of his victims in public places, cornered them, and brazenly video-recorded their private areas. Defendant also took advantage of other victims by planting a hidden camera in multiple bathrooms so that he could obtain video of friends, visitors, and housemates as they used the toilet. His statements about his misconduct were self-serving and unbelievable. Although he admitted his actions when confronted by the police, defendant offered absurd explanations and denied any sexual motivation. His failure to come to terms with the nature of his motivations despite a lengthy period of post-offense therapy raised substantial concerns about his ability to control his compulsions.
The trial court could reasonably conclude that a man who had engaged in a lengthy pattern of sophisticated, sexually motivated misconduct against 13
III. Disposition
The trial court's order is affirmed.
WE CONCUR:
Premo, Acting P. J.
Elia, J.
Notes
Subsequent statutory references are to the Penal Code unless otherwise specified.
Section 290.006 provides: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically 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, subd. (a).)
Section 290 imposes a requirement that a person register as a sex offender "for the rest of his or her life ...." (§ 290, subd. (b).)
After defendant was sentenced by the Orange County Superior Court, his case was transferred to the Santa Clara County Superior Court. His appeal was decided by the Santa Clara County Superior Court Appellate Division.
While the charged offenses all occurred within a month of defendant's arrest, the sexually oriented videos on his cell phone dated back nearly a year, thus demonstrating that defendant had engaged in similar conduct throughout that period.
The court found as mitigating factors that defendant had immediately cooperated with the police upon being confronted, "continually expressed remorse," which the court found to be "genuine" and not self-serving, and had been "very active in his therapy."
The court "specifically excluded the guilty pleas and the factual basis from its findings as supporting with [sic ] defendant's intent."
The defendant did not challenge the trial court's ruling on this basis and could not because she had agreed to this procedure, thereby inviting error and forfeiting the contention. (Allexy , supra ,
In People v. Zaidi (2007)