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Name: San Nicholas v. Harris
Case #: D069769
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/28/2016
Summary

Defendant’s Washington state conviction for communicating with a minor for immoral purposes requires him to register as a sex offender in California. Defendant pleaded guilty in Washington to communicating with a minor for immoral purposes (RCW 9.68A.090), causing the California Attorney General to enroll him in the Department of Justice’s sex offender tracking program. He filed a petition for writ of mandate in the superior court directing the Attorney General to remove him from the tracking program and to obtain an order that he is not required to register as a sex offender in California (Pen. Code, § 290.005, subd. (a)). His petition was denied and defendant appealed. Held: Affirmed. Penal Code section 290.005, subdivision (a) requires sex offender registration for any person convicted of an offense enumerated in Penal Code section 290, subdivision (c), including out-of-state convictions, where the underlying crime meets all of the statutory elements of a registrable offense in California. Here the record regarding the facts of the Washington conviction was limited, so the least adjudicated elements test governs whether the offense requires registration in California. The Washington statute requires proof that the defendant communicated through words or conduct with a minor for the purpose of engaging in sexual misconduct. Penal Code section 288.3, subdivision (a) prohibits contact or communication with a minor, or with a person who reasonably should be known to be a minor, with the intent to commit an enumerated sex offense. It is irrelevant that the Washington statute does not require the defendant to have actual or constructive knowledge the victim was under the age of 18, because, by pleading guilty to that crime, defendant gave up the defense that he made a bona fide attempt to ascertain the true age of the victim.

Alternatively, defendant is required to register in California as a sex offender because the Washington state prior also constitutes the California offense of annoying or molesting a child under 18 years of age (Pen. Code, § 647.6, subd. (a)(1)). To establish the offense of annoying or molesting a child, the prosecution must show a defendant engaged in conduct directed at a child under the age of 18, that a normal person would have been disturbed, irritated or offended by the conduct, and the act was motivated by an abnormal sexual interest in children. The fact that the Washington statute does not require the offending conduct to be motivated by an abnormal sexual interest in children does not matter because the Washington statute requires that the act be motivated by a desire to engage in sexual misconduct. Because there can be no “normal” sexual interest in a child, the motivation element of section 647.6, subdivision (a)(1) is encompassed within the motivation element of the Washington offense. The fact that Penal Code section 647.6 requires proof that the defendant lacked a good faith belief the child was at least 18 years old is irrelevant because, based on his plea, the least adjudicated elements “in this particular case include [defendant’s] constructive knowledge the victim was a minor, which precludes him from having a good faith belief the victim was at least 18 years old.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069769.PDF