Filed 3/27/18 Gamel v. Cal. Dept. of Justice 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ROBERT GAMEL,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF JUSTICE,

Defendant and Respondent.

F075132

(Super. Ct. No. 16CV03889)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Merced County. Brian L. McCabe, Judge.
Lisa M. Sciandra and Salvatore Sciandra for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Kerry Ramos, Deputy Attorneys General, for Defendant and Respondent.
-ooOoo-
California’s version of “Megan’s Law” allows persons convicted of specified sex crimes to apply to the California Department of Justice (Department) to have their names, pictures, and other identifying information excluded from the Internet Web site the Department maintains to make information about registered sex offenders available to the public. (Pen. Code, § 290.46, subd. (e); Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1101.) Under section 290.46, subdivision (e)(2)(C), a person convicted of violating section 311.11 (possession of child pornography) is eligible for exclusion from the Web site if “all victims involved in the commission of the offense were at least 16 years of age or older at the time of the commission of the offense.”
Petitioner and appellant, Robert Gamel, applied for exclusion from the “Megan’s Law” Web site on the ground that, although the image at issue was taken when the victim was under 16 years old, the victim was 17 years old when Gamel was charged with possession of that image. The Department denied Gamel’s application on the ground that he did not meet the criteria requiring all victims involved to be at least 16 years old.
Gamel petitioned the trial court to order the Department to remove his personal information from the Web site. The trial court denied Gamel’s petition finding that the victim was 15 years old at the time of the commission of the offense even though law enforcement did not discover Gamel’s actions until the victim was 17 years old.
On appeal, Gamel argues that, under the plain language of section 290.46, subdivision (e)(2)(C), the phrase “at the time of the commission of the offense” means the date the offender is alleged to have been found in possession of sexually explicit matter depicting a minor.
The trial court correctly denied Gamel’s petition for writ of mandate. Accordingly, the order is affirmed.
BACKGROUND
In August 2014, law enforcement received a report of suspicious behavior involving Gamel, a priest, and a minor male victim who Gamel had been counseling. During the course of the investigation, the victim informed police officers that when he was 15 years old he had taken nude photographs of himself and had sent those photographs to adult individuals. An unknown individual later posted these nude photographs on “Tumbler,” a social media Web site that permits users to download photographs. When the victim learned that his images were on “Tumbler,” he attempted to have them removed but was unsuccessful.
After the explicit photographs appeared online, the victim and his parents scheduled a meeting with Gamel for advice. At Gamel’s suggestion, Gamel and the victim held weekly “confession meetings.” According to the victim, Gamel’s behavior toward him became increasingly inappropriate. The victim was uncomfortable around Gamel and ended the “confession meetings” when he turned 17 years old.
The police detained Gamel for questioning relating to the victim and he agreed to talk to the officers. During the interview, Gamel admitted he learned there were nude photographs of the victim on the Internet. Gamel believed the victim was around 15 years old when the photographs were taken. Gamel further admitted that he searched the Internet for these photographs “years prior to him holding the confession sessions.”
Gamel pleaded no contest to one count of felony possession of sexually explicit matter depicting a minor in violation of section 311.11, subdivision (a). The complaint charged that Gamel did “knowingly and unlawfully possess and control” this matter on August 14, 2014. The trial court sentenced Gamel to a four-year term of felony probation. Under section 290, Gamel was required to register as a sex offender.
Gamel applied for exclusion from the Megan’s Law Web site under section 290.46. The Department denied Gamel’s application because he “did not meet the criteria that requires that all victims involved in the commission of a specified offense were at least 16 years of age or older at the time of the commission of the offense.”
DISCUSSION
Gamel asserts the Department erroneously denied his application for exclusion from the Megan’s Law Web site because the victim was 17 years old on August 14, 2014, the date the complaint charged him with committing the offense. According to Gamel, under the plain language of section 290.46, subdivision (e)(2)(C), he is eligible for exclusion. Gamel argues “[t]he phrase ‘at the time of the commission of the offense’ plainly means the date upon which the charging document states that the defendant committed the offense—or the date to which the defendant pleaded, or a date determined by the finder of fact.”
The burden was on Gamel to prove the facts that made him eligible for exclusion from the Web site. (§ 290.46, subd. (e)(1).) Gamel did not meet this burden.
The trial court concluded, “It is clear from the probation report in this case that the victim was 15 years of age at the time of the commission of the offense even though [Gamel’s] actions were not discovered by law enforcement until the victim was 17 years of age.” Based on this finding, the court denied Gamel’s petition for writ of mandate.
The record supports the trial court’s finding. Gamel admitted he understood the victim was around 15 years old in the images. Gamel further stated that he counseled the victim until the victim was 17 years old and that he possessed the images “years prior to him holding the confession sessions.” Thus, Gamel’s own statements belie his claim of eligibility for exclusion. He indirectly admitted that he possessed the images when the victim was under 16 years old. Accordingly, the trial court correctly denied Gamel’s petition.
DISPOSITION
The order is affirmed. No costs on appeal are awarded.