California Court of Appeal Oct 1, 2014 No. D065255Unpublished
Filed 10/1/14 DiMacali v. People CA4/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA RANDOLPH DIMACALI, D065255 Plaintiff and Appellant, v. (Super. Ct. Nos. MCR13263, SCE212080) THE PEOPLE, Defendant and Respondent. APPEAL from an order of the Superior Court of San Diego County, Amalia L.
Meza, Judge. Affirmed.
Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender,
Vic Eriksen and Matt Braner, Deputy Public Defenders, for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Defendant and
Respondent.
Randolph Dimacali pleaded guilty to two counts of oral copulation with a minor.
The court sentenced him to supervised probation, subject to 365 days of local
incarceration. It also imposed a mandatory requirement to register as a sex offender for
life under Penal Code 1 section 290. Years later, Dimacali filed a petition for writ of
mandate seeking relief from the mandatory registration requirement. The court agreed
that, under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), Dimacali was not
subject to mandatory registration. However, pursuant to its discretionary powers under
section 290.006, the court ruled Dimacali should still register as a sex offender for life.
On appeal, Dimacali contends that: (1) postconviction discretionary registration
violates the Sixth Amendment, (2) the court exceeded its jurisdiction by imposing the
discretionary registration requirement after Dimacali completed probation, (3) the court
did not comply with the two-step Hofsheier inquiry, and (4) the court improperly ignored
material evidence submitted to it. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND In the late 1990s, Randolph Dimacali, then in his 30's, committed a series of
improper sexual acts with multiple teenage boys. He took advantage of his position as a
water polo coach to gain access to his victims, whom he lured with drugs and alcohol.
John Doe 1 was a member of Dimacali's water polo team. Dimacali orally copulated him
on two occasions between October 1996 and March 1997, when Doe 1 was 16 years old.
On the first occasion, Dimacali asked Doe 1 to help him clean at an El Cajon
dentist's office where Dimacali worked as a part-time janitor. Dimacali offered Doe 1
some marijuana and, after they smoked, offered to massage Doe 1's injured shoulder. 1 All further statutory references are to the Penal Code unless otherwise specified. 2
Dimacali rubbed Doe 1's shoulder, worked his way down Doe 1's back, and eventually
pushed down Doe 1's shorts so he could massage his buttocks. Next, Dimacali removed
Doe 1's shorts and asked Doe 1 to roll over. Dimacali then orally copulated Doe 1 until
Doe 1 excused himself and left.
On the second occasion, three to four months later, Doe 1 stopped by Dimacali's
home intending to drop something off. Dimacali offered Doe 1 both marijuana and beer.
After smoking and drinking, Doe 1 helped carry some papers upstairs to Dimacali's
office. Dimacali led Doe 1 into his bedroom to watch television before trying to seduce
Doe 1, attempting to kiss him and apparently dismissing Doe 1's repeated efforts to
excuse himself. Dimacali then orally copulated Doe 1. Following these two incidents,
Dimacali continued to proposition Doe 1.
Like John Doe 1, John Doe 2 was a member of Dimacali's water polo team. In
January 1997, when Doe 2 was 14 years old, Dimacali invited Doe 2 and two other team
members to spend the night at Dimacali's home before the group went surfing the next
day. Dimacali provided both marijuana and alcohol. The group drank excessively and,
at one point, Dimacali turned on a pornographic television channel. At the end of the
night, Dimacali asked Doe 2 to sleep upstairs in his bed. Dimacali claimed he wanted to
keep an eye on Doe 2, as it was his first time consuming so much alcohol. The other
boys slept downstairs.
When Doe 2 got in the bed, Dimacali again turned on the pornographic television
channel. He rubbed Doe 2's shoulders, worked his way down Doe 2's back and
eventually began to massage Doe 2's buttocks. Dimacali then pushed down Doe 2's 3
shorts, rolled Doe 2 on to his back, manually masturbated him, and briefly orally
copulated him.
From 1992 to 1996, when John Doe 3 was between 10 and 14 years old, Dimacali
lived with Doe 3 and his family. Doe 3 disliked living with him, because Dimacali
tended to enter the bathroom while Doe 3 was showering, usually under the pretense that
he had to discuss something important.
After Dimacali moved out, Doe 3 went to Dimacali's house to pick up water polo
equipment. Doe 3 sat on the floor to watch television. Dimacali sat on the bed behind
him, turned on a pornographic movie, and asked Doe 3 if he wanted to masturbate. Doe
3 declined and Dimacali responded, "Well, I'm going to." Doe 3 was afraid to look, but
he strongly believed Dimacali then masturbated behind him.
Police arrested Dimacali on March 22, 2001. Pursuant to a plea agreement,
Dimacali pleaded guilty to one count of violating section 288a, subdivision (b)(1) (oral
copulation with a person under 18) and one count of violating section 288a, subdivision
(b)(2) (oral copulation by a person over 21 with a person under 16). The court sentenced
Dimacali to five years of supervised probation, subject to 365 days of local incarceration,
and a mandatory requirement for violation of section 288a that he register as a sex
offender for life under section 290.
In June 2013, Dimacali filed a petition for writ of mandamus requesting relief
under Hofsheier from the mandatory sex offender registration requirement. In September
2013, the court found the section 290 mandatory registration requirement unconstitutional. The court ordered an evidentiary hearing to determine whether 4
Dimacali should nonetheless register under section 290.006. In December 2013, the
court denied Dimacali's petition and ordered discretionary registration for life.
DISCUSSION
I
Standards of Review We apply two standards of review: de novo and abuse of discretion. When an
appeal raises pure questions of law, not involving the resolution of disputed facts, the
reviewing court exercises independent judgment or de novo review, which gives no
deference to the trial court's ruling. (People v. Bergen (2008) 166 Cal.App.4th 161, 167.)
Dimacali's first two contentions on appeal concern the Sixth Amendment and the court's
jurisdiction to impose a discretionary registration requirement. These contentions raise
pure questions of law and thus are governed by a de novo standard of review.
When a trial court has discretionary power to decide an issue, however, the reviewing court
must apply the abuse of discretion standard. (People v. Jordan (1986) 42
Cal.3d 308, 316.) This standard is deferential, "[b]ut it is not empty." (People v.
Williams (1998) 17 Cal.4th 148, 162.) "[I]t asks in substance whether the ruling in
question 'falls outside the bounds of reason' under the applicable law and the relevant
facts." (Ibid., quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) Dimacali's third
and fourth contentions challenge the court's exercise of its discretionary powers. The
abuse of discretion standard applies to these contentions.
5
II Sex Offender Registration as a Nonpunitive, Regulatory Measure Dimacali contends the court's postconviction imposition of a registration
requirement constitutes an increased penalty or enhanced punishment in contravention of
the Sixth Amendment to the United States Constitution.
In 2000, the United States Supreme Court held that, "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) In 2006, our Supreme Court ruled
the section 290 mandatory lifetime registration requirement for persons convicted of
violating section 288a, subdivision (b)(1), was unconstitutional. (Hofsheier, supra, 37
Cal.4th at pp. 1197, 1206-1207.) It held that equal protection principles precluded a
mandatory lifetime registration requirement for those convicted of oral copulation with a
minor when there was no such mandatory requirement for those convicted under section
261.5 of sexual intercourse with a minor. (Hofsheier, at pp. 1206-1207.) The Hofsheier court remanded the matter to the trial court to determine whether the
defendant fell within the discretionary registration category described in what is now
section 290.006, which provides in part: "Any person ordered by any court to register . . .
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; Hofsheier, supra, 37 Cal.4th at p. 1209.) 6
The court expressly declared, "the trial court may, in its discretion, order defendant to
register as a sex offender under that provision." (Hofsheier, supra, 37 Cal.4th at p. 1209.)
Four years later, our Supreme Court addressed the proper procedural vehicle for
those possibly entitled to Hofsheier relief. (People v. Picklesimer (2010) 48 Cal.4th 330
(Picklesimer).) The court concluded, "for those . . . no longer in custody and whose
appeals are final, claims for Hofsheier relief . . . must be brought by way of a petition for
writ of mandate in the trial court." (Id. at p. 335.)
The Picklesimer court then considered the exact issue raised by Dimacali here,
namely whether the section 290.006 discretionary registration requirement "permits
imposition of heightened punishment based on findings of fact by a trial court rather than
a jury, in violation of Apprendi . . . ." (Picklesimer, supra, 48 Cal.4th at p. 343.) The
court flatly rejected this claim, emphasizing that because sex offender registration is not
punishment, Apprendi "has no application here." (Picklesimer, at pp. 343-344.)
As did the defendant in Picklesimer, Dimacali argues the postconviction
registration requirement constitutes an increased penalty in violation of the Sixth
Amendment. Like our Supreme Court in Picklesimer, we conclude Apprendi has no
application here. Dimacali attempts to differentiate his case from Picklesimer by alleging
"things have changed dramatically for those who are required to register as sex
offenders." However, Dimacali's argument falls short as, curiously, he points only to
sections 290.46, "Megan's Law" of 2004, and 3003.5, subdivision (b), "Jessica's Law" of
2006, as evidence of the supposed "dramatic change," both of which existed at the time Picklesimer was decided in 2010. This court is bound to follow Picklesimer. (See Auto 7
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of
stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions
of courts exercising superior jurisdiction."].)
III Jurisdiction to Impose a Postconviction Registration Requirement Dimacali next contends the court exceeded its jurisdiction in violation of
Dimacali's due process rights when it imposed the discretionary registration requirement
after Dimacali's probation term had expired.
A. Forfeiture Because Dimacali did not raise this issue in the trial court, he arguably cannot raise
it now. " ' "[A]n appellate court will ordinarily not consider procedural defects or
erroneous rulings, in connection with relief sought or defenses asserted, where an
objection could have been, but was not, presented to the lower court . . . ." ' " (People v.
Saunders (1993) 5 Cal.4th 580, 589-590; People v. Leonard (2014) 228 Cal.App.4th 465,
481.) We conclude this issue is forfeited. (Leonard, at p. 481.) Even if we reach the
merits, however, we conclude the contention is unavailing.
B. The Proper Procedural Method Under Picklesimer A petition for writ of mandate is "the appropriate vehicle for seeking Hofsheier
relief . . . ." (Picklesimer, supra, 48 Cal.4th at p. 339.) In fact, it "is an independent
proceeding that vests the trial court with jurisdiction to act," and to "resolve any legal or
factual issues, via an evidentiary hearing if need be." (Id. at pp. 339, 340.)
8
In Picklesimer, our Supreme Court recognized the trial court would be
empowered, by way of a petition for writ of mandate, to determine whether a defendant
should be required to register under section 290.006. (Picklesimer, supra, 48 Cal.4th at
p. 342.) This was true even though the defendant in Picklesimer, like Dimacali, had
completed his sentence and was no longer subject to probation or parole. (See id. at
p. 336.) Dimacali acknowledges that Picklesimer directly conflicts with his position. He
nonetheless contends a Hofsheier petitioner who has successfully complied with his or
her probationary terms should be immune from postconviction discretionary registration.
But "in cases where mandatory sex offender registration has been shown to violate equal
protection, the procedure that most closely matches the legislative intent is not automatic
removal of a sex offender from the state sex offender registry, but an after-the-fact
discretionary determination whether removal is appropriate." (Picklesimer, supra, 48
Cal.4th at p. 343, fn. omitted.) We conclude the court acted within its jurisdiction when
it found Dimacali was not immune from postconviction discretionary registration.
IV The Two-step Hofsheier Inquiry Dimacali next contends the court abused its discretion under section 290.006
because it misapplied the two-step Hofsheier inquiry.
Hofsheier explained that, to implement discretionary registration under section
290.006, "the trial court must engage in a two-step process: (1) it must find whether the
offense was committed as a result of sexual compulsion or for purposes of sexual 9
gratification, and state the reasons for these findings; and (2) it must state the reasons for
requiring lifetime registration as a sex offender." (Hofsheier, supra, 37 Cal.4th at
p. 1197.) Hofsheier further explained section 290.006 "gives the trial court discretion to
weigh the reasons for and against registration in each particular case." (Ibid.)
Dimacali concedes "the trial court made the correct finding on the first step," as the
offense was committed "for a purpose of sexual gratification . . . ." He contends,
however, that the court should have more fully considered the distinction between sexual
compulsion and sexual gratification because sexual gratification allegedly is substantially
less dangerous than sexual compulsion and thus allegedly weighs more heavily against
imposition of a registration requirement. Dimacali cites no authority in support of this
proposition.
The court clearly found the offense was committed as a result of sexual
compulsion or for purposes of sexual gratification. As required by Hofsheier, the court
stated its reasons for this finding, including that "petitioner concedes that it was [sexually
motivated]." The first step is therefore satisfied.
As to the second step, Dimacali again concedes the court "stated reasons for
requiring lifetime sex offender registration . . . ." However, Dimacali disagrees with the
court's reasoning, arguing it did not properly balance all factors weighing for and against
imposition of a lifetime registration requirement.
The record does not support this contention. It shows the court complied with step
two by stating its reasons for requiring Dimacali's lifetime registration as a sex offender.
The court acknowledged reviewing the exhibits and the character letters included in the 10
petition. The court commended Dimacali "for the treatment that he has undergone and
the steps he has taken to correct the life that he was leading that inflicted great harm on
these young men." The court went on to explain, however, that it was "very, very
troubled" by the underlying facts giving rise to the prosecution, and was especially
concerned that Dimacali abused his position of trust and authority and used drugs and
alcohol to do so. After weighing the reasons for and against registration, paying special
attention to the need "to warn the public that there could be someone out there that could
bring harm to children," the court denied the petition.
Dimacali contends the court abused its discretion because it did not properly
consider all "mitigating circumstances," including the passage of time and his success in
treatment. As already noted, the record shows otherwise. The court acknowledged that it
"must weigh the reasons for and against registration in each particular case," and
announced, "I've done that here."
In the end, the court determined Dimacali's postconviction conduct was
outweighed by the nature of the offenses and the need to warn the public. This reasoning
aligns with the dual purpose of the registration requirement: to keep track of those who
might reoffend and to notify members of the public of the existence and location of sex
offenders so they can take protective measures. (See Hofsheier, supra, 37 Cal.4th at
p. 1196.) Here, the court's analysis falls within "the bounds of reason" under the
applicable law and the relevant facts. (People v. Williams, supra, 17 Cal.4th at p. 162.)
11
V Discretionary Power to Weigh the Evidence Finally, Dimacali contends the court abused its discretion under section 290.006
because it improperly ignored material evidence submitted to it.
Specifically, Dimacali argues the court should have more seriously considered
defense counsel's remarks concerning the results of a psychological evaluation conducted
in 2001. Dr. Meredith Friedman, the psychologist responsible for the evaluation, insisted
Dimacali "did not show a deviant pattern of sexual arousal that would be expected with a
pedophile," and his "overall risk of future sexual deviance was considered to be low to
low moderate." Dimacali claims the court refused to discuss the evaluation, or the impact
of the evaluation, in making its decision, and this refusal amounts to an abuse of
discretion.
Dimacali's argument is not persuasive for three reasons. First, he did not include
Dr. Friedman's evaluation as an exhibit to his petition. As such, the court could not
consider that evaluation when ruling on the petition. This court cannot consider the
evaluation because it is not part of the appellate record. (People v. Carrera (1989) 49
Cal.3d 291, 317 ["[A]s review would require us to examine matters outside the present
appellate record, these points are not properly before us on this appeal."].)
Second, even were the evaluation part of the record, Hofsheier does not require
that the court make an express finding as to an offender's risk of reoffending; it requires
only that the court " 'state on the record . . . the reasons for requiring registration.' "
(Hofsheier, supra, 37 Cal.4th at p. 1197; see § 290.006.) If Hofsheier intended to require 12
an express finding as to an offender's risk of reoffending, it could have done so. In
addition, if Hofsheier intended to require that the court state on the record all the reasons
for requiring or not requiring registration, or all factors that weighed into the court's
decision, it could have done so. It did not. (Hofsheier, at p. 1197.)
Third, even if the court's decision to "ignore" the evaluation amounted to an abuse
of discretion, this court could not interfere with the ruling unless it found the court
"exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20
Cal.4th 1, 9.) Given the circumstances, Dimacali has not established that he poses a
minimal risk of reoffending, or that the court imposed the registration requirement
arbitrarily, capriciously or in a manner that resulted in manifest injustice.
DISPOSITION
The order denying the petition is affirmed. McDONALD, J.