People v. Tanner CA5

Filed 5/21/15 P. v. Tanner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F067713 Plaintiff and Respondent, (Super. Ct. No. CRM025721) v.

DAVID RAY TANNER, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Michael Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- David Tanner was tried by jury on felony charges of forcible rape, false imprisonment, making criminal threats, assault by means likely to produce great bodily injury, and furnishing methamphetamine. The jury returned guilty verdicts on the latter

three counts, but acquitted him of false imprisonment and hung on the forcible rape charge. Despite a mistrial on the allegations of rape, the trial court exercised its discretion under Penal Code section 290.006 to impose a sex offender registration requirement as part of Tanner’s sentence based on its finding that his crimes were committed for purposes of sexual gratification. This appeal concerns the constitutionality of the registration requirement. Tanner argues that he had a constitutional right to have a jury decide the factual prerequisites upon which the registration requirement was based. He further contends that sex offender registration has corollary effects which amount to cruel and unusual punishment. Both arguments are directly at odds with the California Supreme Court’s opinion in People v. Mosley (2015) 60 Cal.4th 1044 (Mosley), which was decided during the pendency of this appeal. In light of the holdings in Mosley, and for the additional reasons discussed below, we reject his constitutional claims. Tanner alternatively seeks remand for further sentencing proceedings on grounds that the trial court failed to provide a statement of reasons for imposing the registration requirement. Raised for the first time on appeal, this claim is subject to our district’s precedent regarding the rule of forfeiture for a routine procedural issue that should have been addressed at the time of sentencing. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The Merced County District Attorney charged Tanner by amended information with forcible rape (Pen Code,1 § 261, subd. (a)(2); Count 1), false imprisonment (§§ 236, 237, subd. (a); Count 2), criminal threats (§ 422; Count 3), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); Count 4) and furnishing methamphetamine (Health & Saf. Code, § 11379). An enhancement allegation was attached to Count 4 for personal infliction of great bodily injury (§ 12022.7, subd. (a)). It