P. v. Silberman

 

 

 

 

 

 

 

Filed 7/15/13 
P. v. Silberman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,        Plaintiff and Appellant,               v.   MARC ALAN SILBERMAN,        Defendant and Respondent.

G046591            (Super. Ct. No. 09NF3074)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Robert R. Fitzgerald, Judge. 
(Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) 
Reversed and remanded.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel, Marissa Bejarano and
Charles Ragland, Deputy Attorneys General, for Plaintiff and Appellant

                        Mark S. Devore for
Defendant and Respondent.

 

 

                        Defendant Marc Alan
Silberman pleaded guilty to felony sexual penetration by foreign object with a
person under 18 years of age, and misdemeanor annoying or molesting a
child.  The People contend the trial
court erroneously failed to impose mandatory lifetime sex offender registration
required under Penal Code section 290.href="#_ftn1" name="_ftnref1" title="">[1]  We agree and reverse the judgment.

 

FACTUAL BACKGROUND

 

                        The following facts are
taken from the preliminary hearing
transcript and are apparently not disputed.

 

>Victim No. 1 (count 1, §> 289,
subd. (h))

                        On October 22, 2009,
Silberman was working as a substitute teacher at a high school where Victim No.
1 was a student.  After seventh period,
when all the other students had left for the day, Silberman locked the
classroom door, kissed Victim No. 1, played with her breasts, and moved his
finger in and out of her vagina several times. 
Silberman also took his erect penis out of his pants, and asked Victim
No. 1 to put her mouth on it.  Victim No.
1 refused, but at Silberman’s request masturbated him until he ejaculated.  Silberman told her not to tell anybody what
had happened.  Victim No. 1 was born
December 27, 1992, and was about 16 years 10 months old.

 

>Victim No. 2 (count 2,> §647.6,
subd. (a))

                        On October 9, 2009,
Silberman was working as a substitute teacher at a high school where Victim No.
2 was a student.  Silberman engaged in a
conversation with Victim No. 2 by passing notes.  Silberman asked Victim No. 2 if she were to go
out with somebody, would she choose between students, staff, or faculty.  Victim No. 2 said faculty and staff were too
old.  Silberman said he was not so old.  Victim No. 2 said she had a girlfriend.  Silberman asked Victim No. 2 if she wanted to
“try something new.”  At some point,
Silberman came up behind Victim No. 2 and placed his hands on her waist while
she was sitting down during class. 
Victim No. 2 was born February 20, 1992, and was about 17 years 7 months
old.

 

>Victim No. 4 (count 4, § >647.6, subd. (>a))

                        In April or May 2009,
while Victim No. 4 was walking home from high school, she accepted a ride from
Silberman.  After she entered the vehicle
Silberman told Victim No. 4 that he wanted to stop by his mother’s house to
check on her.  When they arrived there
Victim No. 4 noticed nobody else was home. 
As Victim No. 4 walked towards the front door to leave, Silberman
grabbed her by the wrists, pulled her close to him, and tried to kiss her twice
over her objections.  Victim No. 4 said
she wanted to leave.  Silberman told her
not to tell anybody what happened, and then drove her home.  Victim No. 4 was born December 11, 1992, and
was about 16 years 4 or 5 months old.

 

>Victim No. 5 (count 5, §> 647.6, subd. (>a))

                        In early October 2009,
while Silberman was working as a substitute teacher at a high school.  Silberman asked Victim No. 5, a student, to
stay after class.  After all of the other
students had left, Silberman locked the door and asked Victim No. 5 if she had
a boyfriend, and whether she would be interested in dating an older man.  Silberman asked Victim No. 5 if she would be
interested in being “friends with benefits.” 
Silberman gave Victim No. 5 his cell phone number and asked her to reply
with a yes or no to his question but Victim No. 5 never responded.  Victim No. 5 was born December 31, 1991, and
was about 17 years 10 months old.

 

PROCEDURAL BACKGROUND

 

                         An information charged Silberman with one
count of sexual penetration by using a foreign object with a person under 18
years of age, in violation of section 289, subdivision (h), and four counts of
annoying and molesting a child in violation of section 647.6, subdivision (a).href="#_ftn2" name="_ftnref2" title="">[2]  Each count involved a separate alleged
victim.

                         Silberman initially pleaded not guilty and
filed a memorandum of law seeking a
ruling mandatory lifetime sex offender registration under section 290 in this
case would violate equal protection under People
v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier),
and People v. Ranscht (2009) 173
Cal.App.4th 1369 (Ranscht).

                        The People filed a
response asserting mandatory lifetime sex offender registration under section
290 would not violate equal protection because Hofsheier and Ranscht are
distinguishable.  Appellant also argued,
in the alternative, the court should impose discretionary lifetime sex offender
registration under section 290.006.

                        At a href="http://www.mcmillanlaw.com/">pretrial hearing on January 13, 2012 the
court announced in open court:  “The
court has read and considered the application by the defense and the opposition
by the prosecution for the issue of registration.  The tentative ruling is that the conduct is
too egregious for the court to grant relief under Hofsheier, and the court will require registration under 290.”

                        But, after listening to
the arguments of counsel the court ruled mandatory lifetime sex offender
registration for the alleged violations of section 289, subdivision (h) and
section 647 subdivision (a) would violate equal protection.  The court then adopted a “compromise”
proposed by defense counsel and stated “The court . . . will
require registration for settlement purposes on this case for a period of five
years.  Thereafter, the registration
provision will terminate upon successful completion of five years or an
extended period of probation.”

                        The minute order
describes the ruling in more detail. 
“Motion granted in part as follows: 
The Court orders defendant register pursuant to 290 Penal Code for the 5
years of Probation.  If defendant
successfully completes Probation, the registration requirement will end with
the end of Probation.  Motion denied in
part as follows:  The defendant NOT
registering at all pursuant to 290 Penal Code . . . .  [¶] Defendant must register pursuant to 290
Penal Code on Counts 2, 3 and 4 [§ 647.6, subd. (a)].  Counsel stipulated that registration on Count
1 [§ 289, subd. (h)] would deny defendant Equal Protection.  [¶] The People objected to the Court
requiring five years of registration and having it end when Probation is
successfully completed.”

                         A few minutes later Silberman accepted the
court’s indicated sentence and pleaded guilty. 
The court suspended imposition of sentence and placed him on five years
formal probation on various terms and conditions including sex offender
registration.  Specifically, the court
stated, “The court orders registration under 290 of the Penal Code for the
period of time of the five year probationary period.  Should probation terminate earlier, the
registration will terminate automatically . . . .  [¶]
Should probation be extended for one reason or another beyond the five year
period of time, the 290 registration condition continues until the actual
termination however long that be [sic]
of the probationary status.”

                        The standard sex
offender registration terms on the Tahl
form (In re Tahl (1969) 1 Cal.3d 122)
were modified to conform to the ruling and state, “I understand I will have to
register for the term of probation.”  The
sentencing minute order also states as a condition of probation, “Defendant
[is] ordered to register pursuant to 290 Penal Code for the duration of
Probation.  Defendant must successfully
complete Probation in order for the Registration to cease at the end of five years.”

                        The People appealed
from, “The trial court’s order of JANUARY 13, 2012, imposing an order affecting
the substantial rights of the People, as well as an unlawful sentence, after
defendant’s guilty plea in the above-captioned action.”

 

DISCUSSION

 

                        The
People contend the sentence is unlawful because lifetime sex offender
registration under section 290 is mandatory for any defendant convicted of
annoying or molesting a child under section 647.6, subdivision (a).  We agree. 


                        Section 290 requires mandatory lifetime sex
offender registration for all persons convicted of various enumerated offenses,
including section 647.6, subdivision (a). 
However, the mandatory registration requirement has been held to violate
equal protection for some of the enumerated offenses.  For example, in Hofsheier, our Supreme Court held “the statutory distinction in
section 290 requiring mandatory lifetime registration of all
persons . . . convicted of voluntary oral copulation with a
minor of the age of 16 or 17, but not someone convicted of voluntary sexual
intercourse with a minor of the same age, violates the equal protection clauses
of the federal and state Constitutions.”  (Hofsheier,
supra, 37 Cal.4th at p. 1207.)

                        “Following
Hofsheier, a number of appellate
courts have extended its holding to include additional felony offenses
involving voluntary sexual activity between adults and minors of various ages
and age differences.href="#_ftn3"
name="_ftnref3" title="">[3]  [Citations.] 
[¶]  Other appellate courts have
declined to extend Hofsheier’s holding
to defendants convicted of various sexual offenses with minors . . . .  [Citations.] 
[¶]  The appellate courts that
found no equal protection violation focused on the dissimilarity between the
two classes of offenders . . . .  In particular,
they noted the following distinctions: (1) the young age of the minor and/or
the age difference of more than 10 years between the defendant and the minor
and (2) the specific intent requirement of the relevant statutes.”  (People
v. Brandao (2012) 203 Cal.App.4th 436, 443-444 (Brandao).)

                        At the
time of sentencing here, no reported decision had considered the question of
whether the holding of Hofsheier
should be extended to persons convicted of annoying or molesting a child under
section 647.6, subdivision (a).  Less than
one month later, the question was answered in Brandao, and the appellate court declined to extend the holding of >Hofsheier to persons convicted of
annoying or molesting a child under section 647.6, subdivision (a).  (Brandao,> supra, 203 Cal.App.4th at p. 448.) 

                        We believe
the reasoning in Brandao is
sound.  The court there focused on the
abstract elements of the offense rather than the particular facts, because
“appellant’s equal protection challenge [was] a facial one . . . .”4  (Brandao,> supra, 203 Cal.App.4th at p. 442.) 
The Brandao court noted a
violation of section 647.6, subdivision (a), can involve mere words or conduct
much less overtly sexual than felony offenses found not subject to mandatory
registration under Hofsheier.  (Id.
at p. 445.)  â€œWhatever the nature of the
conduct, however, to be convicted under section 647.6, subdivision (a), [the]
conduct would need to have “‘unhesitatingly irritated or disturbed a reasonable
person . . . regardless of the defendant’s intent.’”
[Citation.]  Hence, section 647.6 is
distinguishable from Hofsheier-type
offenses, which do not include this requirement and which all involve voluntary
conduct between two willing parties.”  (>Ibid.)

                        The >Brandao court also focused on another
key difference between voluntary sex offenses in Hofsheier-type cases and involuntary section 647.6, subdivision (a)
offenses.  The “latter statute is limited
to a ‘comparatively narrow province,’ i.e., to offenders whose conduct, in
addition to being objectively irritating and disturbing, is motivated by an >unnatural or abnormal interest in children.”  (Brandao,
supra, 203 Cal.App.4th at p. 445,
italics added.)  “Finally, while older
minors may be victims under section 647.6, [subdivision (a)], and while the
perpetrator need not be more than 10 years older than the victim, the statute
also encompasses the youngest of minors as well as perpetrators who are much
older than their victims.”  (>Id. at p. 446.) 

                        Thus, the >Brandao court concluded there is a
rational basis for the statutory classification requiring lifetime sex offender
registration for persons convicted of violating section 647.6, subdivision
(a).  (Brandao, supra,> 203 Cal.App.4th at p. 446.)  “[F]or all these reasons, section 647.6,
subdivision (a), simply is not comparable to the voluntary sex offenses at
issue in Hofsheier-type cases, in
which the only difference between the crimes was the nature of the sexual act
and, in some cases, the ages of the defendant and the victim.”  (Ibid.)  We agree with these conclusions. 

                        Silberman contends the >Brandao court “erroneously dismissed
defendant’s reliance on Newland v. Board
of Governors (1977) 19 Cal.3d 705, 708.” 
We are not persuaded.  As the Brandao
court put it “Newland is not
particularly relevant to the present case in that the court’s focus there was
on the arbitrary distinction between misdemeanants and felons generally, for
purposes of eligibility to request a certificate of rehabilitation.”  (Brandao,
supra, 203 Cal.App.4th at p. 447.) 


                        Silberman
also contends Brandao does not apply
because the equal protection challenge there was a facial one whereas the equal
protection challenge here is to the mandatory lifetime sex offender
registration requirement as applied to the facts of this case.  However, as we will demonstrate, looking at
the facts of this case does not lead to a different result.

                        In this
context, of course we agree with Silberman’s statement that as a general
matter, “On appeal, factual findings made by the trial court must be accepted
if supported by substantial evidence.”  The problem is Silberman has not directed our attention to any such factual findings
and our independent review of the
record reveals none.  The trial court’s
only statement regarding the facts of this case was made in the tentative
ruling on the registration issue when the court announced, “The tentative
ruling is that the conduct is too
egregious for the court to grant relief under Hofsheier . . . .  â€  (Italics added.)

                        We agree
with the trial court Silberman’s conduct was egregious.  He annoyed or molested four separate victims
on four separate occasions.href="#_ftn4"
name="_ftnref4" title="">5  In
each instance, he took advantage of his position of trust and confidence as a
teacher to commit the offenses, and the victims were particularly vulnerable
because they were his students. 
Furthermore, the manner in which he carried out the crimes indicates
planning and sophistication.  He arranged
to be alone with Victim Nos. 1, 4 and 5, and locked the classroom doors before
committing the crimes against Victim Nos. 1 and 5.  In addition, the conduct was not voluntary on
the part of Victim Nos. 2, 4 and 5. 
Silberman even specifically instructed Victim Nos. 1 and 4 not to tell
anybody what happened.  Finally, the age
difference between Silberman and the victims was 10 years or more.  The victims were all 16 or 17 years old and
Silberman was 27 years old at the time. 

                        In sum,
the facts of this case demonstrate Silberman was “motivated by an unnatural or
abnormal sexual interest” in underage female students, something he expressly
admitted in the factual basis for his guilty pleas.  These facts further demonstrate Silberman has
a propensity to commit such offenses which presents a significant risk of
reoffending.

                        Under
these circumstances we perceive no equal protection violation in the mandatory
lifetime sex offender registration requirement under section 290 either on its
face or as applied to the facts underlying Silberman’s section 647.6,
subdivision (a) convictions.  This is true
even though he might not be subjected to mandatory lifetime registration under
section 290 for engaging in voluntary intercourse, oral copulation or digital
penetration with any one of these victims. 
None of the Hofsheier-type
cases cited by Silberman involved multiple victims like this case. 

                        Based on
all of the foregoing, we hold the trial court erred in failing to impose
mandatory lifetime sex offender registration pursuant to section 290 as a
result of Silberman’s convictions under section 647.6, subdivision (a).  It follows the sentence is not authorized and
the judgment must be reversed.  (People
v. Serrato (1973) 9 Cal.3d 753, 763, overruled on other grounds in >People v. Fosselman (1983) 33 Cal.3d
572, 583.)

                        With
regard to Silberman’s contention he must be allowed to withdraw his plea in
light of our holding, we note this is a matter which may involve disputed
factual questions and, it is more appropriately directed to the trial court in
the first instance. 

 

 

 

 

 

 

 

 

 

 

DISPOSITION

 

                        The
judgment is reversed and the case is remanded to the trial court for
resentencing or other proceedings consistent with this opinion.

 

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM, ACTING P. J.

 

 

 

BEDSWORTH, J.