Filed 6/8/23 P. v. Marion CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

PATRICK JOHN MARION,

 Defendant and Appellant.

 G061659

 (Super. Ct. No. M-19641)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Jeannie M. 

Joseph, Judge. Reversed and remanded with directions.

James M. Crawford for Defendant and Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora 

S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
2

Over 30 years ago, defendant Patrick John Marion was twice convicted of 

misdemeanor indecent exposure in violation of Penal Code section 314, subdivision (1), 

triggering a duty to register as a sex offender under section 290.1 In 2012, he suffered 

one misdemeanor conviction for failure to register, but he has otherwise dutifully 

registered for over two decades and been crime free since 2008. In 2022, Marion filed a 

petition to terminate his duty to register as a “tier one” offender under section 290.5 (the 

petition). While it is undisputed Marion met the statutory eligibility requirements, the 

People opposed the petition on the ground “community safety would be significantly 

enhanced by [Marion]’s continued registration.” (§ 290.5, subd. (a)(2).) Following a 

hearing, the trial court denied the petition.

Section 290.5, subdivision (a)(3) requires the consideration of seven factors

in determining whether community safety would be enhanced by continued registration. 

None of those factors, when applied to our record, supports required continued 

registration in this case. Our record contains no information regarding “the nature and 

facts of the registerable offense[s,] the age and number of victims[,] [or] whether any 

victim was a stranger at the time of the offense” (ibid.), much less shows any of those 

factors warrant continued registration. 

Although the record shows Marion suffered several criminal convictions

many years ago, it also shows he has not been convicted, or even arrested, for any 

criminal offense in the 14 years before he filed the petition, and he has not committed a 

registerable sex offense in 30 years. While there is no evidence he completed “a Sex

Offender Management Board-certified sex offender treatment program” (§ 290.5, 

subd. (a)(3)), there is no evidence such a program existed at relevant times, or that he was 

ever offered the opportunity to participate in one. Finally, there is no evidence, in the 

form of risk assessment instruments or otherwise, showing Marion posed a “current risk 

1

All further statutory references are to the Penal Code.
3

of sexual or violent reoffense.” (Ibid., italics added.) Because the court’s order denying 

the petition is not supported by substantial evidence, we reverse.

FACTS AND PROCEDURAL HISTORY

In the petition filed April 4, 2022, then 57-year-old Marion stated he (1) is

currently registered as a sex offender in Orange County; (2) has been designated by the 

Department of Justice to be a tier one offender; (3) has registered for at least 10 years; 

(4) has not previously filed a section 290.5 petition; (5) has no knowledge of any pending 

charges against him that could extend the time to complete the registration requirements 

of his tier; and (6) is not in custody, on parole, probation, postconviction supervised 

release, or any other form of supervised release. The petition was accompanied by proof 

of Marion’s current section 290 registration and tier one status, a report from the 

California Sex and Arson Registry, and a document entitled “petition checklist” 

(capitalization omitted) prepared by the Orange Police Department confirming Marion’s

statutory eligibility for the termination of his duty to register. 

The People requested a hearing and objected to the granting of the petition 

on the ground “[c]ommunity safety would be significantly enhanced by the petitioner’s 

continued registration” within the meaning of section 290.5, subdivision (a)(2). The 

People did not object to the granting of the petition on the ground Marion was otherwise 

statutorily ineligible for the sought after relief. In support of the opposition, the People

filed a summary of Marion’s criminal history and a copy of his record of arrests and 

prosecutions (RAP) sheet. 

After a hearing, the trial court denied the petition. The court’s order stated 

the petition was denied because “[c]ommunity safety would be significantly enhanced by 

the petitioner’s continued registration,” based on the court’s findings that were “stated 

orally on the record.” The court’s order also stated Marion may not file another petition 
4

for termination from the sex offender registry for two years from the date of the denial of 

the petition. 

Marion appealed. 

DISCUSSION

I.

OVERVIEW OF GOVERNING LEGAL PRINCIPLES

“The Penal Code has included a ‘comprehensive scheme’ regarding sex 

offender registration since 1947, when the Legislature first enacted section 290 to require 

sex offenders to register with local law enforcement by providing a written statement, 

fingerprints, and a photograph. [Citations.]” (People v. Nguyen (2014) 222 Cal.App.4th

1168, 1187.) Before January 1, 2021, the Sex Offender Registration Act (§§ 290-

290.024) required lifetime registration for defendants convicted of specified offenses, 

including for misdemeanor convictions for indecent exposure in violation of section 314, 

subdivision (1). (§ 290, former subd. (b) as amended by Stats. 2018, ch. 423, § 52; see 

People v. Kennedy (2011) 194 Cal.App.4th 1484, 1490.)

Effective January 1, 2021, the Legislature amended section 290’s lifetime 

registration requirement to provide for a tiered system of registration time periods

dependent on the offense for which the defendant was convicted. (See Stats. 2017, 

ch. 541, § 2.5; Stats. 2018, ch. 423, § 52; Stats. 2020, ch. 79, § 2.) A “tier one offender”

must register for a minimum of 10 years, a “tier two offender” must register for a 

minimum of 20 years, and a “tier three offender” must continue to register for life. 

(§ 290, subd. (d)(1)(A), (2)(A), (3), respectively.)

Section 290.5 provides: “(a)(1) A person who is required to register 

pursuant to Section 290 and who is a tier one or tier two offender may file a petition in 

the superior court in the county in which the person is registered for termination from the 

sex offender registry on or after their next birthday after July 1, 2021, following the 
5

expiration of the person’s mandated minimum registration period . . . .” That statute 

requires the person to serve the section 290.5 petition on the local law enforcement 

agency, which in turn, must report to the district attorney and the superior court in which 

the petition is filed “regarding whether the person has met the requirements for 

termination pursuant to subdivision (e) of Section 290.” (§ 290.5, subd. (a)(2); ibid.

[“The court may summarily deny a petition if the court determines the petitioner does not 

meet the statutory requirements for termination of sex offender registration or if the 

petitioner has not fulfilled the filing and service requirements of this section”].)

If the district attorney does not request a hearing on the petition to 

terminate registration, section 290.5, subdivision (a)(2) provides “the petition for 

termination shall be granted if the court finds the required proof of current registration is 

presented in the petition, provided that the registering agency reported that the person met 

the requirement for termination pursuant to subdivision (e) of Section 290, there are no 

pending charges against the person which could extend the time to complete the 

registration requirements of the tier or change the person’s tier status, and the person is 

not in custody or on parole, probation, or supervised release.” (Italics added.) 

There is no dispute here the petition was properly served and the other 

section 290.5, subdivision (a)(2) requirements quoted ante were met. But here, the 

People did request a hearing on the petition under section 290.5, subdivision (a)(2), 

which further provides “[t]he district attorney in the county where the petition is filed 

may . . . request a hearing on the petition if the petitioner has not fulfilled the requirement 

described in subdivision (e) of Section 290, or if community safety would be significantly 

enhanced by the person’s continued registration.” 

The People did not challenge the petition for failure to comply with section 

290.5, subdivision (e). Subdivision (e) of section 290 provides for an extension of 

minimum registration time periods to account for time the defendant spent in certain 

forms of custody: “The minimum time period for the completion of the required 
6

registration period in tier one or two commences on the date of release from 

incarceration, placement, or commitment, including any related civil commitment on the 

registerable offense. The minimum time for the completion of the required registration 

period for a designated tier is tolled during any period of subsequent incarceration, 

placement, or commitment, including any subsequent civil commitment, except that 

arrests not resulting in conviction, adjudication, or revocation of probation or parole shall 

not toll the required registration period. The minimum time period shall be extended by 

one year for each misdemeanor conviction of failing to register under this act . . . without 

regard to the actual time served in custody for the conviction. If a registrant is 

subsequently convicted of another offense requiring registration pursuant to the Act, a 

new minimum time period for the completion of the registration requirement for the 

applicable tier shall commence upon that person’s release from incarceration, placement, 

or commitment, including any related civil commitment. If the subsequent conviction 

requiring registration pursuant to the Act occurs prior to an order to terminate the 

registrant from the registry after completion of a tier associated with the first conviction 

for a registerable offense, the applicable tier shall be the highest tier associated with the 

convictions.”

The petition checklist, prepared by the Orange Police Department and filed 

in support of the petition, included appropriate extensions to Marion’s minimum 

registration period under section 290, subdivision (e), and confirmed Marion exceeded 

the minimum required registration period so adjusted. Specifically, in the petition 

checklist, the Orange Police Department added one year to the 10-year required 

minimum term for Marion’s 2012 misdemeanor conviction for failing to register and 

added another four years, five months, and 23 days to that sum to account for the time he 

spent in a period of subsequent incarceration, placement, or commitment. Consequently, 

the petition checklist stated Marion’s adjusted total minimum registration period was 15 

years, five months, and 23 days. The record shows Marion has been registering since at 
7

least 2001,2and thus the adjusted minimum registration period had long passed (in 2017) 

at the time he filed the petition in 2022. 

Instead, the People opposed the petition solely on the ground “community 

safety would be significantly enhanced by the person’s continued registration.” (§ 290.5, 

subd. (a)(2).) When, as in this case, the People request a hearing, subdivision (a)(3) of 

section 290.5 provides: “[T]he district attorney shall be entitled to present evidence 

regarding whether community safety would be significantly enhanced by requiring 

continued registration. In determining whether to order continued registration, the court 

shall 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 Boardcertified 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. Any judicial determination made 

pursuant to this section may be heard and determined upon declarations, affidavits, police 

reports, or any other evidence submitted by the parties which is reliable, material, and 

relevant.” (Italics added.)

2

 Our record does not show whether Marion began to register before 2001. At the 

hearing, the trial court asked the prosecutor if there was any information about that 

timing and the prosecutor confirmed she had no information. Our record does not 

explain what appears to have been a delay in Marion’s registration or the circumstances 

of any such delay. Any such delay, however, is immaterial to the issue presented in this 

appeal.
8

II.

INSUFFICIENT EVIDENCE SUPPORTS THE TRIAL COURT’S ORDER DENYING THE PETITION

Marion argues the record does not support the trial court’s finding 

community safety would be significantly enhanced by requiring him to continue to

register within the meaning of section 290.5. We agree.

“The fundamental task of statutory construction is to ‘ascertain the intent of 

the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to 

determine this intent, we begin by examining the language of the statute.’ [Citation.]” 

(People v. Cruz (1996) 13 Cal.4th 764, 774-775.) By enacting section 290.5, the 

Legislature effectuated its intent of creating a pathway for certain sex offenders to seek 

relief from a lifetime duty to register. As discussed ante, upon satisfying the eligibility 

requirements of section 290.5, subdivision (a)(2), a petitioner is presumptively entitled to 

such relief, unless and until the People request a hearing. In the event such a request is 

made, pursuant to section 290.5, subdivision (a)(3), the People “shall be entitled to 

present evidence regarding whether community safety would be significantly enhanced 

by requiring continued registration.” Consequently, section 290.5 imposes upon the 

People both the burden of producing evidence and the burden of proof in opposing the 

petition on the ground community safety would be significantly enhanced as a result. 

(See People v. Thai (2023) 90 Cal.App.5th 427, 435 [reversing order denying § 290.5 

petition because prosecution failed to meet its burden “to establish with reasonable, 

credible, and solid evidence ‘community safety would be significantly enhanced’” by 

requiring the petitioner’s continued registration].) After considering the factors set forth 

in subdivision (a)(3) of section 290.5, the trial court determines whether to order 

continued registration (ibid.). 

We review each of the section 290.5, subdivision (a)(3) factors against the 

record before us as follows.
9

A. First Through Third Factors: Circumstances of the Registerable Offenses

Our record contains no information regarding the first factor, “the nature 

and facts of the registerable offense”; the second factor, “the age and number of victims”;

or the third factor, “whether any victim was a stranger at the time of the offense.” 

(§ 290.5, subd. (a)(3).) In the opposition to the petition, the People reported (1) “[d]ue to 

the passage of time and purging of records, the People were unable to obtain the 

underlying police reports”; (2) “[t]he People were not able to ascertain the age or number 

of victims”; and (3) “[a]gain, due to the lack of police reports, it is unclear whether or not 

the victims were stranger[s] to [Marion].” 

At the hearing, the trial court confirmed “[w]e don’t have any details, it 

sounds like, regarding these crimes going off the RAP sheet. We just have indecent 

exposure. I’m just going to assume that’s the nature of the crime, which is, you know, in 

the scheme of offenses is not the most serious, I’ll just say.” The court continued: “The 

second factor is the age and number of victims. Again, something we don’t know. [¶] 

The third factor is whether any victim was a stranger at the time of the offense. We don’t 

know that either.”

3

 

3

 The court later added: “Although I would also say factor two, the number of victims, 

since we have a number of different of these same charges [sic] where he was arrested 

four times for indecent exposure, I would say the number of victims doesn’t weigh in his 

favor.” The trial court should not have considered Marion’s two arrests for indecent 

exposure that did not result in conviction in evaluating the second factor, which is 

focused on the age and number of victims of “the registerable offense[s].” (§ 290.5, 

subd. (a)(3), italics added.) Those arrests are relevant to the fourth factor, which we 

discuss post. The trial court also stated, with regard to the third factor, “But generally, I 

would say when you see the indecent exposure cases, they are strangers. But that would 

only be an assumption I could make based on the charge.” As discussed ante, nothing in 

the record supports such speculation regarding the nature or facts of the registerable 

offenses or the victims involved.
10

Given the statutory presumption in favor of granting the petition sans proof 

community safety would be significantly enhanced otherwise, the absence of evidence 

regarding factors one through three favors granting the petition.

B. Fourth and Fifth Factors: Other Criminal and Relevant Noncriminal Behavior and 

Period of Time During Which the Person Has Not Reoffended

The fourth factor identified in section 290.5, subdivision (a)(3) is “criminal 

and relevant noncriminal behavior before or after conviction for the registerable offense.” 

The fifth factor is “the time period during which the person has not reoffended.” (Ibid.) 

The record contains Marion’s RAP sheet and what is essentially a summary of the RAP 

sheet’s contents, which show that, in addition to committing the two counts of indecent 

exposure that triggered Marion’s duty to register, Marion also committed several offenses

and had also been arrested for others, up until 2008. 

That evidence shows in 1988 and again in 1994, Marion was convicted of 

committing misdemeanor disorderly conduct, further described in the RAP sheet as 

“solicit lewd act,” in violation of section 647, subdivision (a). Our record does not 

provide any information regarding the circumstances surrounding the commission of 

those offenses.

Years before Marion suffered those two convictions, the Legislature 

removed violations of section 647, subdivision (a) from the list of registerable offenses in 

section 290. (See In re Alva (2004) 33 Cal.4th 254, 268, fn. 8 [After the Supreme Court 

in In re Reed (1983) 33 Cal.3d 914 held registration was cruel or unusual punishment for 

one convicted of public lewd solicitation under § 647, subdivision (a), the Legislature 

amended § 290 to delete the registration requirement for persons convicted of that 

offense. (Stats. 1985, ch. 929, § 4, p. 2936; id., ch. 1474, § 1, p. 5403.)].) In any event, 

as acknowledged by the Attorney General in the respondent’s brief, the RAP sheet shows

for almost 30 years Marion has not been convicted of any type of sex offense, including 
11

violations of section 647, subdivision (a), even if they may still be properly characterized 

sex offenses for purposes of registration issues. 

Otherwise, the RAP sheet shows that in the 1990’s and the early to mid2000’s, Marion suffered criminal convictions for an array of drug-related and theft 

offenses. Our record does not contain any information regarding the circumstances of 

such offenses either. Significantly, the record shows Marion has not committed any 

offenses, or even been arrested or detained on suspicion of having committed a criminal 

offense, since 2008—a span of 14 years prior to the time the petition was filed. 

With regard to the fourth factor, the trial court stated it “doesn’t weigh 

really in favor of the defendant.” The trial court further observed Marion “ha[d] four 

arrests for indecent exposure, two convictions. They occurred between ’85 and ’94. [¶] 

But we do have, subsequent to that, a lot of other criminal conduct. And the defendant 

spent a lot of time in state prison as a result of the other conduct, which probably 

wouldn’t give him a lot of access to committing any further--this type of crime.” (Italics 

added.) 

But as discussed ante, pursuant to subdivision (e) of section 290, Marion’s 

minimum required registration time period was already adjusted from 10 years to over 15 

years to account for his misdemeanor conviction for failing to register in 2012, and for 

the amount of time he was incarcerated after committing the registerable offenses. 

As to the fifth factor, the court reiterated “it looks like our last criminal 

conviction was about 2008. So that is not an insignificant length of time, but it is 

certainly not that long considering his long criminal history.” For the reasons we have 

explained, we disagree. 

Given the temporal remoteness of Marion’s criminal history to the filing of 

the petition, such evidence does not show that community safety would be significantly 

enhanced at this point in time by requiring Marion to continue to register.
12

C. Sixth Factor: Completion of Sex Offender Treatment Program

Section 290.5, subdivision (a)(3) also required the court to consider 

whether the record showed “successful completion, if any, of a Sex Offender 

Management Board-certified sex offender treatment program.” While there is no 

evidence Marion completed “a Sex Offender Management Board-certified sex offender 

treatment program,” (ibid.) there is no evidence such a program existed at relevant times, 

much less that he was ever offered the opportunity to participate in one. 

As to this factor, the trial court acknowledged: “I probably wouldn’t have 

expected it back in the ‘80s when he was convicted of indecent exposure,” adding “but 

we have no knowledge that he did that.” As the People had the burden of producing 

evidence and proving community safety would be significantly enhanced by Marion’s 

continued registration, the dearth of evidence on this factor does not support denial of the 

petition.

D. Seventh Factor: Current Risk of Sexual or Violent Reoffense

The final and perhaps most important factor set forth in section 290.5, 

subdivision (a)(3) for the court to consider is “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.” (Italics added.) Here, there is no 

evidence, in the form of risk assessment instruments or otherwise, showing Marion posed 

a “current risk of sexual or violent reoffense.” (Ibid., italics added.) 

In the opposition to the petition, the People cited the California Sex and 

Arson Registry report submitted in support of the petition which showed in 2008, Marion 

scored a “6” on the Static-99, which the report noted to be a “high risk” level. No other 

information was provided regarding this test, the meaning of the score at that time, or 

how long the score might accurately predict risk. That evidence, therefore, is inadequate 

to show Marion’s current risk of sexual or violent reoffense in 2022. The trial court 
13

expressed concern about the 2008 Static-99 score “because I don’t see any history of 

treatment.” But nothing in the record shows how treatment would affect Marion’s risk 

level 14 years after the test was administered. 

E. The Trial Court’s Concluding Comments

The trial court summarized its findings: “So I think the strongest factors 

here are that he doesn’t have another conviction since 2008. But here is someone who 

has a history of multiple sex offenses and didn’t do any treatment that I know of. So 

based on that, I am going to find that community safety would significantly be enhanced 

by requiring continuing registration. I don’t know if that’s what’s kept him out of trouble 

since 2001 or 2008, whenever he started registering. I don’t know if he has turned his 

life around in some other way. I didn’t have any declarations explaining that he has 

received training or has changed in any way. [¶] So based on that, I will find that the 

People have met the standard. And I’m going to deny the motion and I will set three 

years for refiling. And I would recommend upon refiling that perhaps we hear more 

about anything that Mr. Marion has done to address and turn his life around. Because 

perhaps he has, I have no idea. I can’t tell. I’ve heard nothing. That will be the Court’s 

ruling.”4

For the reasons we have already discussed, the fact Marion committed the 

registerable offenses over 30 years ago in and of itself does not support denial of the 

4

 In response to Marion’s counsel’s subsequent request that Marion be permitted to refile 

a petition to terminate his duty to register in one year instead of three years, the court 

stated: “He has a long criminal history. I think he needs some time to make sure he is 

free of that.” After counsel pointed out Marion’s “long criminal history was all around 

the same time of the underlying offenses,” “[t]here has been no re-offending for 14 years 

now,” and “the underlying qualifying registering conviction was only a misdemeanor,” 

the court agreed to permit Marion to refile in two years. 
14

petition. Furthermore, the absence of evidence showing whether he ever received 

treatment does not support denial of the petition.

The Legislature has determined in section 290, subdivisions (d) and (e) the 

presumptive amount of time an offender should register following the commission of 

certain sex offenses. Whether Marion’s act of registering itself might have “kept him out 

of trouble” is not a statutory factor; if it were, the petition of any tier one offender could 

be denied on that basis in contravention of section 290.5.

Marion has registered for a time period longer than the required minimum

time period, as adjusted pursuant to section 290, subdivision (e). The People had the 

burden of producing evidence to prove community safety would be significantly 

enhanced by requiring Marion’s continued registration, but failed to carry its burdens.5 

Marion did not have the burden under the statute to affirmatively produce evidence 

showing that he has turned his life around—and in light of the People’s failure to produce 

evidence showing he posed a risk since 2008—had nothing to rebut in that respect.

Consequently, the trial court erred in denying the petition in this case.

5

As discussed ante, the evidence relied on by the People in opposition to the petition 

consisted entirely of a 14-year-old risk assessment and a criminal record which showed 

Marion had not committed any criminal offenses, or even been arrested or detained on 

suspicion of having committed a criminal offense, during the 14 years prior to the filing 

of the petition. While this appeal was pending, a panel of this court issued its opinion in 

People v. Thai, supra, 90 Cal.App.4th 427, in which the court clarified section 290.5 

imposed on the People the burden of producing evidence and the burden of proof to show 

community safety would be significantly enhanced by continued registration.
15

DISPOSITION

The order is reversed and the matter is remanded with directions to grant 

Marion’s petition.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.