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Filed 7/28/15 P. v. Reynolds CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

THE PEOPLE,

Plaintiff and Respondent,

v.

SPENCER DEAN REYNOLDS,

Defendant and Appellant.

C076937

(Super. Ct. No. CM035404)

Defendant Spencer Dean Reynolds pleaded no contest to one count of sexual 

penetration of a minor, having been originally charged with forcible rape, forcible sexual 

penetration, and two counts of sexual battery. The trial court ordered defendant to 

register as a sex offender pursuant to Penal Code section 290. Defendant appealed his 

registration as a sex offender, and this court remanded the matter to the trial court for the 

limited purpose of determining whether to exercise the court’s discretion to order 

defendant to register as a sex offender and to state all of the required reasons. 
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On remand the trial court exercised its discretionary power to order registration, 

and stated its reasons. Defendant appealed, and now argues: (1) the trial court abused its 

discretion making the findings on which it based its decision to impose registration; (2) 

the factual findings supporting discretionary registration were required to be submitted to 

a jury and proved beyond a reasonable doubt; and (3) the trial court violated the 

confrontation clause by admitting testimonial hearsay evidence.

We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, 16-year-old C.E., reported she was raped in a park by a man who 

threatened her with a knife and sodomized her. C.E. had just run away from home when 

she met defendant. They went to a house where she met a woman she thought was 

defendant’s mother. C.E. drank several glasses of alcohol. The woman gave them a 

sleeping bag, and C.E. and defendant went to a park. Defendant told C.E. he was 20. 

She led him to believe she was 18 or 19. When they got to the park, defendant put the 

sleeping bag down and grabbed C.E., forced her to the ground, took off her clothes, 

digitally penetrated her, and penetrated her vagina with his penis. C.E. struggled and 

tried to fight for a few minutes, then she blacked out and gave in. C.E. reported that 

defendant had threatened her with a folding knife.

When defendant was interviewed, he admitted to kissing and digitally penetrating 

C.E., but he denied having sex with her. He agreed to a cheek swab for DNA evaluation. 

Defendant’s DNA was not found in C.E.’s underwear, but DNA from his saliva was 

found on C.E.’s neck. C.E. would not allow a full sexual assault exam, so no DNA was 

recovered from her vagina or anus.1

 

1

 C.E. reported to medical personnel that defendant had penetrated her anus with his 

penis, but did not indicate this had occurred in any of her subsequent interviews.
3

Charged with forcible rape, forcible sexual penetration with a foreign object, and 

two counts of sexual battery, defendant pleaded no contest to one count of digitally 

penetrating a victim under the age of 18. (Pen. Code, § 289, subd. (h).)2 The trial court 

sentenced defendant to state prison for the midterm of two years and ordered him to 

register as a sex offender. Defendant appealed the judgment on the ground the trial court 

stated inadequate reasons for ordering him to register as a sex offender. (People v. 

Reynolds (Jan. 24, 2014, C072985) [nonpub. opn.].) We set aside the trial court’s order 

requiring defendant to register as a sex offender for the limited purpose of determining 

whether to order defendant to register as a sex offender, and stating the reasons for the 

determination.

On remand, the trial court ordered defendant to register as a sex offender, and 

made the following statement of reasons:

“In this case, there are a variety of reasons for and against making 

the findings required. The conduct alleged, and to which the defendant 

admitted, does include the digital penetration of the victim’s vagina.

“There was a Static-99, as I previously mentioned, completed. It 

resulted in a finding of moderate to high risk of reoffending.

“Also in favor of registration is the subsequent offense where the 

defendant was found by the police in the same park with another female 

juvenile, and he had a knife with him at the time. Those circumstances are 

substantially similar to the charged conduct.

“The juvenile also had in her possession a small amount of 

marijuana.

“In the charge offense, the victim’s allegations included the use of a 

knife or the placing of a knife on her stomach; the fact that the defendant 

threatened her, saying to her, If you don’t to this, you are going to have the 

worst time of your life.

 

2

 Further statutory references to sections of an undesignated code are to the Penal Code.
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“She alleged that the defendant held her arms and legs down. And 

additional conduct was alleged in her interviews that involve substantial 

sexual conduct, including penile-vaginal penetration/penile-anal 

penetration.

“Also in favor of registration is the fact that the victim was 

particularly vulnerable. She was a runaway. She had severe emotional and 

mental health issues which, according to the probation report, were 

apparent after a few minutes of conversation with the victim.

“On balance, the Court would note that there are factors that would 

not support the discretionary registration, including the fact that the 

defendant has no prior record. He is youthful. The victim led the 

defendant to believe she was 18 or 19 years old. And the fact that there 

was no DNA or physical evidence supporting the penile-vaginal penetration 

or penile-anal penetration allegations.

“The Court has balanced all of these factors for and against 

registration in this case. It is a significant burden on a person, and the 

Court recognizes that. However, in examining the facts and circumstances 

of this case, the allegations that the defendant has admitted to, the Court 

does find that there is a likelihood of the defendant reoffending and that the 

offense was committed as a result of sexual compulsion and for sexual 

gratification.

“For all of these reasons, the Court is ordering that the defendant 

register as a, under Penal Code Section 290.”

DISCUSSION

I

No Abuse of Discretion

Defendant argues the trial court abused its discretion in requiring him to register as 

a sex offender. The argument has no merit because registration was mandatory, but in 

any event the trial court did not abuse its discretion.

The crime of which defendant was convicted, foreign object penetration of a 

victim under the age of 18 (§ 289, subd. (h)), is a conviction which subjects defendant to 

mandatory registration pursuant to section 290. Our earlier opinion held that registration 

was discretionary because: “[e]ven though section 289 is listed in section 290, 

defendant’s offense is similar for equal protection purposes to unlawful sexual 
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intercourse which does not require mandatory registration. (People v. Picklesimer (2010) 

48 Cal.4th 330, 341-342; People v. Hofsheier (2006) 37 Cal.4th 1185, 1195, 1198-1199, 

1206-1207 (Hofsheier ); People v. Ranscht (2009) 173 Cal.App.4th 1369, 1372, 1375.)

Thus, registration for defendant’s offense is required only if ordered at sentencing (§ 

290.006).” (People v. Reynolds, supra, C072985.) Hofsheier held that section 290 

violated the equal protection clause of the Fourteenth Amendment and article 1, section 7 

of the California Constitution to the extent it required registration for an adult convicted 

of oral copulation with a minor, but did not require registration of an adult convicted of 

voluntary sexual intercourse with a minor. (People v. Hofsheier (2006) 37 Cal.4th 1185, 

1198 (Hofsheier).)

Subsequent to our earlier opinion, the Supreme Court revisited its holding in 

People v. Hofsheier, supra, 37 Cal.4th 1185. Johnson v. Department of Justice (2015) 60 

Cal.4th 871, 888 (Johnson) overruled Hofsheier, and disapproved the Court of Appeal 

decisions that “applied Hofsheier’s rational -- i.e., the absence of a rational basis for 

distinguishing, as to sex offender registration, between oral copulation with a minor and 

unlawful sexual intercourse -- to other sex offenses involving minors and other.” 

(Johnson, at p. 888.)

It is thus clear that registration is mandatory. What is not as clear is whether 

Johnson is retroactive in this case. “A decision of a court overruling a prior decision is 

typically given full retroactive effect. [Citation.] Despite this general rule, the federal 

and state Constitutions do not prohibit an appellate court from restricting retroactive 

application of an overruling decision on grounds of equity and public policy.” (Johnson, 

supra, 60 Cal.4th at p. 888.) 

Johnson is retroactive where the sex offender “has taken no action in justifiable 

reliance on the overruled decision.” (Johnson, supra, 60 Cal.4th at p. 889.) In Johnson, 

the defendant’s guilty plea was entered before the Hofsheier decision, and the plea

acknowledged the defendant’s obligation to register as a sex offender as a part of his plea 
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agreement. Because it was clear that the decision to plead guilty and the obligation to 

register a sex offender did not result from any reliance on the state of the law as 

articulated in Hofsheier, the law as stated in Johnson was retroactive. (Johnson, at p. 

889.) 

Here, Hofsheier was decided before defendant’s no contest plea, and defendant’s 

plea agreement acknowledged that one consequence of his plea was that he might be 

required to register as a sex offender. When entering his plea, he answered affirmatively 

when the court asked: “Do you also understand that one of the possible consequences 

would be a requirement that you register as a sex offender:” (Italics added.) At the time 

of his plea, the Fourth District Court of Appeal had held that the Supreme Court’s 

decision in Hofsheier was applicable to a violation of section 289, subdivision (h), and 

the Supreme Court had issued an opinion holding that a person convicted of violating 

section 289, subdivision (h) could file a petition for writ of mandate in the trial court to 

seek Hofsheier relief. (People v. Ranscht (2009) 173 Cal.App.4th 1369; People v. 

Picklesimer (2010) 48 Cal.4th 330, 340.)

Under these circumstances we cannot say with certainty that defendant did not rely 

of the state of the law as articulated in Hofsheier in entering his plea. 

Because Johnson is so recent, neither party has briefed whether it applies 

retroactively here. We need not determine whether it operates retroactively under the 

circumstances presented, because we conclude that the trial court’s decision to order 

registration was not an abuse of discretion. “A court abuses its discretion when its 

rulings fall ‘outside the bounds of reason.’ [Citation.]” (People v. Ochoa (1998) 19 

Cal.4th 353, 408.) Employing that test, we find no error. 

The trial court weighed the reasons for and against registration, and stated the 

reasons for requiring registration. The reasons given for registration were: (1) 

defendant’s Static-99 assessment that found a moderate to high risk of reoffending; (2) 

the subsequent offense for which defendant was arrested in the same park with another 
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female juvenile and a knife; (3) the fact that the charged offense included allegations that 

defendant used a knife and threatened the victim; (4) the fact that additional substantial 

sexual conduct was alleged; and (5) the fact that the victim was particularly vulnerable 

because she had severe emotional and mental health issues, and was a runaway.

The trial court also stated the following factors that did not support registration: 

(1) defendant’s lack of a prior record, (2) defendant’s youth, (3) the fact that the victim 

led defendant to believe she was over 18, and (4) the fact that there was no DNA or 

physical evidence supporting allegations of penile-vaginal penetration or penile-anal 

penetration.

On balance, the court ordered registration because it found there was a “likelihood 

of the defendant reoffending and that the offense was committed as a result of sexual 

compulsion and for sexual gratification.”

Defendant points to the conflicting evidence regarding his use of a knife, and 

regarding whether there was any sexual conduct other than that to which he pleaded. He 

also points to the report of his expert, who found no physical evidence to support 

additional sexual conduct. However, the trial court recognized that there was no physical 

evidence to support the victim’s other allegations of sexual conduct, and recognized that 

such conduct, as well as the use of a weapon, was merely alleged.

Defendant also objects to the court’s characterization of his later arrest in the park 

with another juvenile girl. He claims there is no evidence he was in the park with the 

girl, other than that he was in the park and the girl was nearby. However, the trial court 

could infer from the fact that the report indicated the female was the one who was in 

possession of the marijuana, and that defendant was arrested and charged with

misdemeanor possession of marijuana, that the two were together. Moreover, defendant 

admitted in his statement to the probation officer that he was with the juvenile.

Defendant also argues there was no evidence he knew that C.E. had severe 

emotional and mental health issues, especially since she had been drinking, and he was 
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strung out on methamphetamine. However, Detective Woodby, who interviewed C.E.,

testified at the preliminary hearing that C.E. acted like a 12 year old, and defendant’s 

initial conversation with C.E. occurred before she started drinking, so he had an 

opportunity to assess her demeanor. C.E.’s mother told police that C.E. was 

schizoaffective, bipolar, had Tourette’s, had the mental capacity of a 12 year old, and 

would get in the car with anyone.

The Static-99 assessment alone, which found a moderate to high risk that 

defendant would reoffend, was sufficient by itself to justify a determination by the trial 

court that there was a likelihood defendant would reoffend. The trial court gave 

appropriate weight to the remaining evidence in support of registration, and properly 

considered the factors opposed to requiring registration. The trial court’s findings were 

not baseless, and were not an abuse of discretion. 

II

Findings Supporting Registration Need Not Be Submitted to Jury

California voters passed an initiative in 2006 preventing any person who is 

released on parole after being imprisoned for an offense for which registration is required 

pursuant to section 290, from residing within 2,000 feet of a public or private school, or 

park where children regularly gather. (§ 3003.5.) Defendant argues these residency 

restrictions are punitive, and the facts supporting the registration requirement must 

therefore be found beyond a reasonable doubt by a jury pursuant to Apprendi v. New 

Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].

The Supreme Court recently rejected this claim. (People v. Mosley (2015) 60 

Cal.4th 1044.) A defendant has no right to jury trial on the factual findings underlying a 

discretionary sex offender registration order. (Id. at p. 1048.) 
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III

Confrontation Clause 

Defendant argues that because the registration requirements are punitive, any 

testimonial evidence adduced at the registration hearing must conform to the 

confrontation clause of the Sixth Amendment. He argues the victim’s statements about 

her interaction with defendant were testimonial, and because they were used in a 

proceeding against him, they were required to be subject to confrontation.

Preliminarily, the premise of defendant’s argument is incorrect. The Supreme 

Court has held that neither the registration requirements, nor the resulting residency 

restrictions are punitive. 

People v. Castellanos (1999) 21 Cal.4th 785, 796 held: “The sex offender 

registration requirement serves an important and proper remedial purpose, and it does not 

appear that the Legislature intended the registration requirement to constitute 

punishment. Nor is the sex offender registration requirement so punitive in fact that it 

must be regarded as punishment, despite the Legislature’s contrary intent. Although 

registration imposes a substantial burden on the convicted offender, this burden is no 

more onerous than necessary to achieve the purpose of the statute.” (Fn. omitted.)

People v. Mosley, supra, 60 Cal.4th at p. 1062 held that “the residency restrictions 

of Jessica’s Law are not, on their face, an added ‘penalty’ for [the defendant’s] conviction 

to which Apprendi applies. Like sex offender registration requirements, the restrictions 

are not intended as punishment or retribution for the offense or offenses that led to their 

imposition. Rather, their purpose is to serve a legitimate regulatory goal—reducing the 

opportunity for persons convicted of sexually related crimes, who are at large in the 

community but still deemed dangerous, to reoffend in the future. The restrictions may 

lead to significant disabilities in individual cases, but in the abstract, they do not so 

resemble traditional forms of punishment, and are not so clearly punitive in effect, as to 

override their regulatory aim.”
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A. Failure to Object

Defendant objects to the use of C.E’s statements “about her various observations 

of, and interactions with” him. He did not assert an objection to the court’s consideration 

of this evidence at the hearing. Failure to object to the introduction of evidence below on 

the ground it violated defendant’s constitutional rights under the confrontation clauses of 

the federal and state Constitutions forfeits the claim on appeal. (People v. Tafoya (2007) 

42 Cal.4th 147, 166.) Anticipating this, defendant claims his trial counsel was ineffective 

for failing to assert the objection below.

B. Ineffective Assistance of Counsel

To succeed on his claim of ineffective assistance of counsel, defendant has the 

burden of showing both that his counsel’s performance was deficient and that the 

deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 

668, 687 [80 L.Ed.2d 674, 693].) To show prejudice, defendant must show there is a 

reasonable probability that but for counsel’s performance, the result of the proceeding 

would have been different. (Id. at p. 694.) If defendant fails to show prejudice, we need 

not determine whether counsel’s performance was deficient. (People v. Weaver (2001) 

26 Cal.4th 876, 961.) 

Defendant cannot establish prejudice. A trial court’s decision to impose a 

discretionary sex offender registration requirement is a sentencing decision. (See People 

v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved on another point by Johnson, 

supra, 60 Cal.4th at p. 888.) The Sixth Amendment right to confrontation does not 

extend to sentencing. (People v. Arbuckle (1978) 22 Cal.3d 749, 754; People v. Cain

(2000) 82 Cal.App.4th 81, 86.) Consequently, the trial court would have properly 

rejected an objection to the evidence based on confrontation clause grounds, and 

defendant is unable to show prejudice. 
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DISPOSITION

The judgment is affirmed.

 BLEASE , Acting P. J.

We concur:

 HULL , J.

 RENNER , J.