People v. Contreras

Decision Date13 October 2021
Docket NumberF079081
Citation285 Cal.Rptr.3d 283,70 Cal.App.5th 247
Parties The PEOPLE, Plaintiff and Respondent, v. Guadalupe CONTRERAS, Jr., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Certified for Partial Publication.*

Proper Defense Law Corporation, Sally S. Vecchiarelli and Justin Vecchiarelli, Fresno, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

Defendant Guadalupe Contreras, Jr. was charged with rape and forcible oral copulation, but was convicted by a jury only of misdemeanor battery ( Pen. Code, § 242 )1 as a lesser included offense of the rape charge. The trial court placed him on probation and exercised its discretion to require him to register as a sex offender, finding the battery was committed for the purpose of sexual gratification. His opening brief raised four issues on appeal related to the registration requirement, but he withdrew one of the issues in his reply brief. There are thus three issues in this appeal.

Contreras first claims the trial court abused its discretion by failing to state sufficient reasons for requiring him to register as a sex offender under section 290.006. Second, he contends the trial court abused its discretion in ordering registration because there was "no evidence" he was likely to reoffend. And third, he argues the court erred in relying on the results of his pre-sentencing sex offender risk assessment in ordering registration.

We reject all three claims and affirm.

STATEMENT OF THE CASE

The Madera County District Attorney filed an information charging Contreras with rape ( § 261, subd. (a)(2) ; count 1) and forcible oral copulation ( § 288a, subd. (c)(2)(A) ; count 2). A jury found him not guilty as charged in count one, but guilty of the lesser included offense of misdemeanor battery. The jury also acquitted Contreras on count 2.

On March 22, 2019, the trial court sentenced Contreras to three years' probation with one day in local custody, with credit for one day served. The trial court also ordered him to register as a sex offender.

STATEMENT OF FACTS
I. The offense

On October 11, 2014, J., a woman, went to a wedding and drank alcohol. After the wedding, she asked her best friend, Kacie, to pick her up and go to a bar. Kacie instead invited J. to Kacie's friend Brittany's house in the Madera Ranchos.2 J. accepted the invitation and Kacie picked her up.

Brittany lived with Contreras, her fiancé. When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras. Contreras, Brittany, and Kacie had about four or five shots and J. had about two. About 30 to 45 minutes later, J. went to the bathroom and vomited, and Brittany and Kacie went into the bathroom to help her. Brittany went to her and Contreras's bedroom and got a shirt and sweatpants for J. to change into, J. changed into the new clothes, and J. got into Brittany and Contreras's bed.

Brittany, Kacie, and Contreras sat on the back patio and Brittany fell asleep. Contreras told Kacie something like, "I'm going to get that bitch out of my bed," and went into the house.

J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her. She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis. J. opened her eyes and saw it was Contreras. J. said "no" and tried pulling her hand away. Contreras placed his free hand on the front of J.'s neck. J. described the pressure on her throat as a light clasping that nevertheless felt "awful" and made her freeze from fear. With one hand on her throat, Contreras placed his other hand on her abdomen and pulled her body toward him. J. again said "no." With his body on top of hers, Contreras inserted his penis into J.'s vagina. J. told him to stop. After several minutes of thrusting,3 Contreras removed his penis and forced J.'s head down toward his penis and inserted it into her mouth. J. was crying as Contreras pushed her head toward his penis. She did not remember how long his penis was in her mouth, but said she was scared. Contreras took his penis out of her mouth when Kacie entered the room and yelled, "What the fuck?" Contreras did not ejaculate.

Kacie testified that after Contreras left the patio and went inside, she remained on the patio waiting for Contreras to return until she started to hear both J. and Contreras moaning; the moaning sounded pleasurable. She went into the house, opened the bedroom door and yelled, "What the fuck are you guys doing?" Contreras said, "Fuck," and went to the bathroom. J. hid under the covers and would not let them go as Kacie tried to pull them off of her.

J. eventually got out of the bed and ran out of the house wearing only the t-shirt Brittany had given her; she was not wearing pants. Kacie followed her into the street. J. was crying and saying, "He made me. He made me. I didn't want to. He made me." Kacie put J. in a bush and went in the house to get J.'s things and to call them a ride.4 J. was gone when Kacie returned. J. walked to her mother's house two miles away. She told her mother what happened and her mother took her to the emergency room, and law enforcement was contacted.

II. Sentencing

Sentencing was scheduled for January 11, 2019.5 Ahead of the sentencing hearing, the People and Contreras submitted briefing on the registration issue. The People argued in favor of registration, while Contreras argued the trial court would abuse its discretion by ordering registration. On January 11, the court continued sentencing to March 4 and referred the matter to the probation department to conduct an assessment using the State-Authorized Risk Assessment Tool for Sex Offenders ("SARATSO").6 On February 21, the probation officer submitted her report. The report stated the probation officer assessed Contreras using the STATIC-99R risk assessment scale and the SARATSO for male sex offenders, which measures the statistical risk a defendant will commit further sexual offenses based on characteristics of his personal history and past offenses as they compare with those of known criminal sexual recidivists. ( § 290.04, subd. (b)(1) ; see People v. Williams (2003) 31 Cal.4th 757, 762, fn. 3, 3 Cal.Rptr.3d 684, 74 P.3d 779 [describing purpose of the STATIC-99].)7

The report stated the STATIC-99R "has been shown to be a moderate predictor of sexual reoffense potential." Contreras's score of "4" placed him in the "above average risk" category—just one level below the highest category, "well above average risk"—meaning Contreras had an above average risk of being charged or convicted of another sexual offense within five years of being released on probation.

Sentencing was continued again at the defense's request and held on March 22. The court noted at the outset of the hearing it had received the probation officer's supplemental report, which included the results of the STATIC-99R. The court invited argument from the parties. The People argued sex offender registration was appropriate because the evidence showed the battery was committed for a sexual purpose, and also argued the trial testimony and Static-99R results showed Contreras had an above average risk of reoffending.

Contreras's counsel argued that registration was inappropriate and unnecessary, and that the Static-99R was irrelevant in this case because Contreras was not convicted of a sexual offense, only a simple battery. Counsel further stated that the acquittals on the principal offenses (i.e., the rape and oral copulation charges) made it unclear which act the battery conviction was based on, but said that it was the defense's view that conviction had nothing to do with "the grabbing of the penis." Counsel also noted that Contreras had no history of illegal sexual activity and that the offense had occurred almost five years ago by that time. Counsel further argued Contreras should be placed on summary probation, not formal probation, because he had only been convicted of a misdemeanor. As to the term of probation, counsel asked that the court place Contreras on one day of summary probation and terminate probation.

After hearing brief additional comments from the People, the court proceeded to state its view on the registration issue. The court noted it had "read all the submissions" and considered the report on Contreras's SARATSO results. The court stated it disagreed with the defense's position that administering the Static-99R was inappropriate in this case.

The court explained:

"Having been present during the trial in this matter, I understand that we have one misdemeanor count wherein he was found guilty. However, the acts charged were related—well, based upon the evidence brought forth in the trial, it appears that the acts of the defendant were for purposes of sexual gratification.
"I am not taking the position that the defendant has a compulsion. I am not sure what that would mean in this particular circumstance. But I do find that the acts of the defendant were for purposes of sexual gratification.
"With regard, generally, to the issue concerning supervision, I believe supervision in this matter is appropriate for Mr. Contreras. It is a good thing that he has not reoffended in the recent past, but I think continued supervision with the terms and conditions of probation are absolutely appropriate for this particular defendant.
"And I will order that he also register under [ section] 290 as the acts here were for purposes of sexual gratification."

After discussing other sentencing issues with counsel, the court stated:

"The Court has read and considered the report of the probation officer. I have had the input from both the People and the Defense and their written submissions in these matters. I have read and consider all of those as
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