People v. Allexy

Opinion

ROBIE, J. —In this opinion we explain the procedure a trial court must follow if it chooses to impose sex offender registration on a defendant whose crime does not require registration.

The law allows a court to impose sex offender registration “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. . . .” (Pen. Code,1 § 290.006, italics added.)

Here, defendant pled guilty to child endangerment, the trial court imposed sentence but suspended execution of that sentence, placed her on probation, and told her if she violated that probation, it would order her to register as a sex offender. She violated probation and the court then ordered her to register.

The procedure the trial court followed was wrong. It failed to decide at the time it imposed sentence whether defendant would have to register. If a trial court wants to use the specter of sex offender registration as a basis for encouraging a defendant to comply with the terms of probation (as it appears the court here wanted to do), there is a way to do so without violating section 290.006. A trial court may suspend imposition of sentence and place a defendant on probation, thereby leaving any decision to impose sex offender registration to the time the court sentences the defendant. The court’s procedural error does not require reversal here, though, because any argument regarding the court’s error was forfeited or invited because counsel acquiesced to the court’s procedure.

FACTUAL AND PROCEDURAL BACKGROUND

A

Defendant’s Criminal Conduct

Defendant Toni Rae Allexy was a 38-year-old cheerleading coach and mother of a cheerleader when she invited to her house a 14-year-old football [1361]player (the victim) to whom she was attracted and encouraged him to drink alcohol with her and his friends.

After getting the victim drunk and becoming “beyond drunk” herself, defendant followed the victim into her computer room where she drew her initials in lipstick on the victim’s cheek. She then took the victim’s football jersey off of his body, put it on herself, and took a picture of herself sitting in the victim’s lap. She sent the picture to the victim’s ex-girlfriend with a text message saying, “Don’t you wish you were here?”