Filed 3/7/24 P. v. Sanchez CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT SANCHEZ,

Defendant and Appellant.

F085926

(Super. Ct. No. 22CRST000043)

OPINION

APPEAL from an order of the Superior Court of Fresno County. Jonathan M.

Skiles, Judge.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin 

Doering, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

Defendant Robert Sanchez appeals from the court’s order denying his 2022 

petition filed pursuant to Penal Code section 290.5 to terminate his sex offender 
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registration requirement, which arose from a 1986 conviction for lewd and lascivious acts 

with a child under the age of 14. (Undesignated statutory references are to the Penal 

Code.) At the hearing on the petition, the parties agreed the evidence showed, following 

his 1986 conviction defendant was repeatedly arrested for similar conduct, including as 

recently as in 2018, but none of these charges resulted in convictions. The court denied 

defendant’s petition based on its safety concerns in light of the number of subsequent 

arrests for similar conduct, and it required defendant to continue to register for a period of 

two years before he could again petition for termination of the registration requirement.

On appeal, defendant argues the trial court abused its discretion in concluding 

community safety would be appreciably increased by requiring defendant to continue to 

register for two additional years. Rather, the prosecution failed to establish terminating 

the registration requirement would raise the threat to society because he might reoffend.

We affirm the court’s order denying defendant’s petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, defendant was convicted of committing a lewd or lascivious act upon a 

child who is under 14 years old, a violation of section 288, subdivision (a), in case 

No. 0334416-5, which required him to register as a sex offender in Fresno County. On 

June 1, 2022, defendant petitioned the superior court to terminate his sex offender 

registration requirement arising from his 1986 conviction pursuant to section 290.5. He 

asserted he was designated as “Tier 2,” had registered for at least 20 years, and had not 

previously filed a section 290.5 petition. Accordingly, he believed he had “met the 

requirements to register for the time period required by [his] tier designation as 

determined by the Department of Justice.” Thereafter, the Fresno County Sheriff’s 

Office filed a proof of defendant’s registration requirement and tier level as “Tier 2—

Adult.” It also filed a “Petition Checklist” in which it represented that defendant did not 

have any pending charges against him that could extend the time to complete the 

registration requirements of his tier or change his tier status (§ 290.5, subd. (a)(2)); he 
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was not on parole, probation or supervised release (§ 290.5, subd. (a)(2)); and he was not 

in custody (§ 290.5, subd. (a)(2)). The Fresno County District Attorney’s Office filed an 

objection to the granting of the petition on the grounds “[c]ommunity safety would be 

significantly enhanced by the petitioner’s continued registration.”

The court held a hearing on defendant’s petition on December 2, 2022. During the 

hearing, the parties agreed defendant had suffered an arrest for three counts of similar 

conduct in 1992. However, he was acquitted of the charges in 1993. In 1994, 2004, 

2012, and 2018, defendant also suffered additional arrests, but the charges were 

dismissed. The prosecutor affirmed the charges that were subsequently dismissed were 

all “288 type charges,” and expressed a concern that defendant was still “getting those 

arrests” in 2012 and 2018, noting the 2012 arrest was for the “same type of charges, 288”

and the 2018 arrest was for violations of sections 647.6 (annoying or molesting a child 

under 18) and 288. The prosecutor explained, “at the time of the original conviction, 

there w[ere] two separate reporting allegations” and “one of the cases went forward” with 

a nine-year-old victim. “There was also a long time with another victim [who] said that 

there w[ere] multiple events, penetration events,” but defendant was not convicted of that 

charge. “So similar conduct but it was not pled and proven.”

The court told defendant, though “those aren’t convictions, ... it is concerning ... 

that you have been arrested multiple times since having to register for conduct that’s 

similar to why you have to register.” The court noted, “[T]here’s a lot of different 

reasons why those cases end up getting dismissed. Sometimes it’s because people don’t 

cooperate with them. Sometimes it’s because there is just nothing to investigate. But 

having one of those happen while you are registering is concerning, but ... not unduly so. 

Having three, four, or five of them, it starts causing concerns.” The court further stated, 

“This is one of those rare type of procedures where it doesn’t necessarily have to be a 

conviction for the Court to have a concern raised.”
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Defense counsel responded, “[T]he nature of having people register as sex 

offenders” and having that information “publicly available on a website” is that neighbors 

“don’t like it,” and allegations are taken “more seriously than they normally would by 

police.” He asserted, “Ultimately, none of those ended up in a conviction,” and “[w]e 

don’t have the facts of those before us.” He argued, “It is the People’s burden to show 

that registration will assist in future crime prevention,” and there has not been a crime 

sustained since defendant’s conviction. In response to questioning by the court, 

defendant represented that he was 74 years old at the time of the hearing.

The court initially stated it was going to grant the petition, but the prosecutor then 

explained the subsequent arrests, including those in 2004, 2012, and two in 2018, were all 

for section 288 type charges. The court asked defendant to “shed light” on those arrests,

and defendant stated he was “just there at the wrong time” and they were “false 

accusations.” The court asked the prosecutor to pull the file regarding the 2018 arrests in 

Fresno County to determine “what that was all about,” but the district attorney was 

unable to provide much information. The court stated it wanted “to know a little bit of 

background on these cases and why they were just arrests but weren’t sustained, whether 

it was because the victim couldn’t be found.” The court asserted it was “factoring in the 

fact that these are arrests, not convictions.” But, it explained, defendant was registering 

for “a serious sex crime” and had “been arrested for ongoing serious sex crimes about 

every two to three years.” Accordingly, the court continued the matter to permit the 

parties to look into the circumstances of defendant’s prior arrests.

The court held another hearing on February 24, 2023. At that hearing, the court 

explained it was unaware of any convictions defendant had sustained, but it had 

“significant concerns about the fact that there were multiple arrests for same or similar 

conduct.” The People stated they confirmed “at some point cases [were] filed,” but there 

was no further information as to why they were not pursued. Defense counsel again 

asserted it was the People’s burden and they failed to meet it; so, “the petition must be 
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granted.” The court stated defendant’s “multiple arrests for similar offenses” provides a 

basis for a “finding that he poses an ongoing risk even if they’re not convictions, given 

that conduct even if it doesn’t result in a conviction.”

Defense counsel agreed the court records showed defendant had been arrested, but 

he argued the arrests should not be held against defendant, asserting there is “such a low 

standard for initiation of a case.” He also asserted registration was not “protecting the 

public ... in any way, shape or form.” He again argued the People had not met their 

burden as they had not provided any information.

The court denied defendant’s petition to terminate his adult sex offender 

registration requirement because it found “[c]ommunity safety would be significantly 

enhanced by the petitioner’s continued registration.” It found the “multiple arrests while 

registering for similar alleged conduct that he was registering for ... provide[d] a basis ... 

to find that it will not be appropriate to terminate registration.” Rather, defendant “poses 

an ongoing risk given the fact that, repeatedly, he’s being arrested for same or similar 

conduct.” The court reasoned, “somebody can be arrested one time and it’s just bad luck 

if somebody is arrested three, four times for a similar type of charge; that’s enough for 

this Court to find that there’s a reason to have concerns about public safety going 

forward.” The court ruled defendant could not file another petition for termination for 

two years in order to see if he was arrested again for similar conduct.

DISCUSSION

The Court Did Not Err in Denying Defendant’s Section 290.5 Petition

Defendant argues the trial court erred in denying his petition to terminate his sex 

offender registration requirement pursuant to section 290.5 from his 1986 conviction in 

case No. 0334416-5. We disagree.
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A. Standard of Review and Applicable Law

California law requires persons convicted of specified sex crimes against a child, 

including violations of section 288, to register as a sex offender while they live, work, or 

attend school in California. (§ 290, subds. (b), (c); People v. Mosley (2015) 60 Cal.4th

1044, 1048.) “For many years, California took a one-size-fits all approach to sex 

offender registration: If registration was required, registration was always for life. (Stats.

1947, ch. 1124, § 1, p. 2562.)” (People v. Franco (2024) 99 Cal.App.5th 184, 190.)

However, commencing January 1, 2021, Senate Bill No. 384 (2017–2018 Reg. Sess.)

restructured the sex offender registration requirement, establishing three tiers of 

registration for sex offenders, primarily based on the offense of conviction, for periods of 

at least 10 years (tier one), at least 20 years (tier two), and life (tier three). (Stats. 2017, 

ch. 541, § 2.5; see § 290, subd. (d).) Defendant is a tier two sex offender subject to the 

20-year registration requirement. (§ 290, subd. (d)(2); see § 290.5, subds. (a), (b).) 

Commencing July 1, 2021, Senate Bill 384 also established procedures for a person to 

seek termination from the sex offender registry if the person meets certain criteria, 

including completion of the mandated minimum registration period. (§ 290.5, subds. (a)–

(c); People v. Thai (2023) 90 Cal.App.5th 427, 432.) Pursuant to the statute, the 

prosecution may request a hearing and present evidence to establish “community safety 

would be significantly enhanced by requiring continued registration.” (§ 290.5, subd.

(a)(2), (3).)

Section 290.5 does not define the phrase “community safety would be 

significantly enhanced.” (§ 290.5, subd. (a)(2); People v. Thai, supra, 90 Cal.App.5th at

p. 432.) The purpose of section 290 is to ensure police can surveil sex offenders at all 

times because they pose a “‘“‘continuing threat to society.’”’” (People v. Sorden (2005)

36 Cal.4th 65, 73.) In the absence of a statutory definition, words should be given their 

usual and ordinary meanings. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 376.) 

“‘Significant’ is defined as ‘having or likely to have influence or effect: deserving to be 
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considered: important, weighty, notable.’ (Webster’s 3d New Internat. Dict. (1981) p. 

2116, col. 2, capitalization omitted.)” (People v. Thai, supra, at p. 432.) “‘Enhanced’ is 

defined as to raise or lift. ([Webster’s, supra,] p. 753, col. 3.)” (Thai, at p. 432.) Thus, 

the prosecution must produce evidence establishing that requiring continued registration 

appreciably increased society’s safety. (Ibid.)

In making this determination, the trial court must consider: “the nature and facts 

of the registerable offense; the age and number of victims; whether any victim was a 

stranger at the time of the offense (known to the offender for less than 24 hours); criminal 

and relevant noncriminal behavior before and after conviction for the registerable 

offense; the time period during which the person has not reoffended; successful 

completion, if any, of a Sex Offender Management Board-certified sex offender 

treatment program; and the person’s current risk of sexual or violent reoffense, including 

the person’s risk levels on SARATSO static, dynamic, and violence risk assessment 

instruments, if available.” (§ 290.5, subd. (a)(3); People v. Thai, supra, 90 Cal.App.5th

at pp. 432–433.) The parties may submit, and the court may base its decision upon, 

affidavits, declarations, police reports or any other “reliable, material, and relevant”

evidence. (§ 290.5, subd. (a)(3).) If the court denies the petition, it must set the time 

period—one to five years, after which the petitioner can repetition for termination—and 

state its reasons. (§ 290.5, subd. (a)(4).)

An appellate court reviews the trial court’s ruling on a petition for termination 

from the sex offender registry for abuse of discretion. (Lewis v. Superior Court (2008)

169 Cal.App.4th 70, 79; People v. Thai, supra, 90 Cal.App.5th at p. 433; accord, People

v. Franco, supra, 99 Cal.App.5th at p. 192 [explaining whether defendant’s “‘continued

registration appreciably increase[s] society’s safety’” after weighing statutorily

enumerated factors is a “predominantly factual inquiry”].) To establish an abuse of 

discretion, a defendant must demonstrate the trial court’s decision fell outside the bounds 
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of reason, i.e., was arbitrary, capricious, or patently absurd. (People v. Johnson (2022)

12 Cal.5th 544, 605–606.)

“‘The abuse of discretion standard is not a unified standard; the deference it calls 

for varies according to the aspect of a trial court’s ruling under review. The trial court’s 

findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed 

de novo, and its application of the law to the facts is reversible only if arbitrary and 

capricious.’” (People v. Thai, supra, 90 Cal.App.5th at p. 433; see Haraguchi v. Superior

Court (2008) 43 Cal.4th 706, 711–712, fns. omitted.) A trial court abuses its discretion 

when its factual findings are not supported by the evidence, or its decision is based on an 

incorrect legal standard. (People v. Thai, supra, at p. 433.)

B. Analysis

Defendant asserts the prosecution failed to meet its burden to present “reasonable, 

credible, and solid evidence” that “community safety would be significantly enhanced”

by requiring him to register for an additional two years, noting he was 74 at the time of 

the hearing. He argues he had not sustained a conviction for a sex offense or failed to 

register as a sex offender since he was convicted of the offenses that required him to 

register as a sex offender. Accordingly, the court abused its discretion in denying his 

petition and its order should be reversed. The People respond that defendant’s “pattern of 

arrests for lewd and lascivious conduct inherently suggests that the reason for the 

dismissals here was not because [defendant] did not engage in any of the sexual 

misconduct.” They contend the court appropriately considered defendant’s pattern of 

arrests here, as a sentencing court may consider arrests that do not result in conviction in 

making sentencing decisions. We agree with the People; we cannot conclude the court 

abused its broad discretion in concluding community safety would be significantly 

enhanced by requiring defendant to continue registering as a sex offender for at least two 
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more years to permit additional time to assess whether defendant remains arrest and 

conviction free.

Our state Supreme Court has acknowledged that, “[w]hile a record of arrests not 

resulting in conviction is generally inadmissible at trial, it may serve significant functions 

in both pretrial and post-trial proceedings.” (Loder v. Municipal Court (1976) 17 Cal.3d 

859, 866.) The Loder court noted the particular value of an arrest record as an 

investigative tool for the discovery of further evidence where the “prior arrest is not an 

isolated event but one of a series of arrests of the same individual on the same or related 

charges,” especially “when the crime in question is typically subject to recidivism, such 

as ... child molesting ....” (Id. at p. 865.) “In these circumstances a pattern may emerge 

... which has independent significance as a basis for suspecting the arrestee if the crime 

is committed again.” (Id. at pp. 865–866.) The Loder court also explained an arrest 

record may be considered by the court in conjunction with all other relevant information 

in deciding whether to release a defendant on recognizance or in fixing the appropriate 

amount of bail. (Id. at p. 867.) It further noted that a court may also take a defendant’s 

arrest record into account in determining whether and upon what conditions to grant 

probation or when to release him on parole. (Id. at p. 868.) Notably, similar to an 

assessment as to whether a registration requirement should be terminated under section 

290.5, the relevant inquiry with regard to whether to permit release of an individual from 

pretrial detention or on parole relates to an assessment of the risk the individual poses to 

public safety. (See Cal. Const., art. I, § 28, subd. (f)(3) [“Public safety and the safety of 

the victim shall be the primary considerations” in setting, reducing or denying bail]; In re 

Lawrence (2008) 44 Cal.4th 1181, 1205 [“the Penal Code and corresponding regulations 

establish that the fundamental consideration in parole decisions is public safety”]; see 

also In re Humphrey (2021) 11 Cal.5th 135, 143 [noting in certain circumstances “the 

need to protect community safety may conflict with the arrestee’s fundamental right to 

pretrial liberty”].)
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Here, the People asserted, and the defense agreed, defendant had suffered 

numerous arrests for conduct similar to that for which he sustained the 1986 conviction 

requiring him to register as a sex offender. Indeed, the parties agreed defendant was 

arrested as recently as 2018 on similar charges, which the court confirmed. The court 

further acknowledged it was taking into account these were arrests and not convictions, 

but it emphasized the nature, number, and recentness of the arrests in rendering its 

decision. It also afforded defendant an opportunity to respond to the past arrests and 

assessed his response in rendering its conclusion.

Section 290.5 expressly permits the court to consider any reliable, material, and 

relevant evidence related, in part, to a defendant’s criminal and relevant noncriminal 

behavior after conviction for the registerable offense, the time period during which he 

had not reoffended, and his current risk of sexual or violent reoffense in determining 

whether a defendant’s continued registration “appreciably increased society’s safety.”

(See 290.5, subd. (b)(3); accord, Evid. Code, § 210 [evidence is relevant if it has “any 

tendency in reason to prove or disprove any disputed fact that is of consequence to the 

determination of the action”].) Additionally, as discussed, the California Supreme Court 

has acknowledged the admissibility as well as the relevance and potential value of arrest 

records in certain postconviction proceedings that involve an assessment of the potential 

danger an individual poses to public safety. (See Loder v. Municipal Court, supra, 17 

Cal.3d at pp. 866–868.)

And, here, the prosecution produced evidence of undisputed facts—namely, that 

defendant’s arrest record reflected numerous arrests over the course of three decades 

related to child molestation since his 1986 conviction, including a 2018 arrest—

supporting the trial court’s conclusion that terminating defendant’s registration 

requirement would considerably raise the threat to society because defendant is currently 

likely to reoffend. (See generally People v. Thai, supra, 90 Cal.App.5th at p. 433 [noting 

it is prosecution’s burden to produce evidence establishing terminating registration 
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requirement considerably raises threat to society because defendant is “currently likely to 

reoffend”].) Thus, under the circumstances, we cannot conclude the court’s denial of 

defendant’s petition to terminate his registration requirement pursuant to section 290.5 

and its imposition of a two-year requirement before defendant can petition again 

exceeded the bounds of reason. That is, the court’s factual finding that community safety 

would be significantly enhanced by defendant’s continued registration was grounded in 

the evidence presented at the hearing.

Accordingly, we reject defendant’s contention.

DISPOSITION

The court’s order denying defendant’s petition is affirmed.

PEÑA, J.

WE CONCUR:

DETJEN, Acting P. J.

SMITH, J.