The opinion
Filed 7/26/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B328627
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. YA004627
v.
HARRY D. MALBRY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hector M. Guzman, Judge. Affirmed.
Richard B. Lennon and Peter Westacott, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising
Attorney General and Viet H. Nguyen, Deputy Attorney General,
for Plaintiff and Respondent.
____________________
Harry Malbry wants to stop registering as a sex offender.
He has this duty because, in 1991, he pleaded no contest to a
charge of a lewd act on a child. He penetrated an unrelated five
year old girl who called him “Daddy.” He repeated this conduct
on a daily basis during the work week, while the girl’s mother
was away at her job. He persisted for three years until the girl
eventually told her mother, after she turned eight. Malbry was
convicted, imprisoned for a six-year term, released, and required
to register annually as a sex offender. In 2022, Malbry petitioned
the trial court to terminate his registration duty, arguing his
crime-free record since 1991 showed he is no longer a danger to
the community.
The trial court correctly denied Malbry’s petition.
“[C]ommunity safety would be significantly enhanced by
requiring continued registration.” (Pen. Code, § 290.5, subd.
(a)(3).) The persistence and extent of Malbry’s offense conduct,
his lack of insight, and his willingness to exploit a trusting child
support the trial court’s ruling. Undesignated citations are to the
Penal Code.
I
The victim testified at a preliminary hearing in 1991, when
she was eight years old. She knew the difference between telling
the truth and telling a lie. If she told a lie, she testified, she
would be punished: “No TV, no juices, no going outside, no going
to birthday parties, you know, not having fun stuff.” Malbry did
not object to the competence of this eight-year-old witness. (See
Evid. Code, §§ 700, 701, subd. (a)(2).)
The girl was alone in the house with Malbry when she
came home from school during the work week.
2
“[W]hen my mom was at work, I would be sitting in my
room, sometimes I would be sitting in the living room, and he
would call me in his bedroom . . . .”
Malbry would “unzip his pants” and “pull out his private
. . . .” His “private” was “that part in front” where men go “to the
bathroom.”
“He would pull my panties over like this.”
“[H]e made me sit on his lap . . . .”
His “private” touched the “inside and outside” of the girl’s
“private.” Her “private” was “[w]hat I sit on.” The court noted
she “pointed to her vaginal area.”
The girl told police she could feel his “private parts” inside
her “private parts.”
The girl said Malbry would pant like a dog. She made a
panting sound to demonstrate.
“He would go run to the bathroom, and right before[,] the
stuff would be falling on the floor . . . .”
Afterward he told her, “If you tell anyone, I am going to do
something bad to your mom.”
The girl testified that, the first time this happened, she was
“[f]our or five” years old.
After the first time, it happened every day her mother was
working.
It did not happen on weekends because “my mom was off on
the weekends” and was home then.
When she was eight years old, in 1990, the girl told her
mother something was happening.
The mother contacted authorities. She and her daughter
cut contact with Malbry.
3
Prosecutors charged Malbry with a six-count information:
five counts of a lewd act on a child (§ 288, subd. (a)) and one
count of continuous sexual abuse of a child (§ 288.5). In each
count, the information accused Malbry of “penetration of vagina
of victim by the penis of said defendant.” Each count contained a
notice: “Conviction of this offense will require you to register
pursuant to Penal Code section 290. Willful failure to register is
a crime.”
In 1991, Malbry pleaded no contest to one count of lewd act
on a child. He checked a box about registering as a sex offender
under section 290 as part of his plea.
The prosecution agreed to a six-year prison term and
moved to dismiss the other five counts. Malbry was incarcerated
and released. He registered annually as a sex offender.
In 2022, represented by counsel, Malbry petitioned to
terminate his sex offender registration obligation. His petition
asserted he was a tier two offender eligible for termination
because he had registered for at least 20 years. (See §§ 290,
subd. (d)(2) [“A tier two offender is subject to registration for a
minimum of 20 years. A person is a tier two offender if the
person was convicted of an offense described in subdivision (c)
. . . .”], 290, subd. (c)(1) [listing § 288, which was Malbry’s offense
of conviction].)
We describe this three-tier system later, but first we
complete our procedural overview.
The prosecution opposed Malbry’s petition. Prosecutors
urged the court to deny Malbry’s petition, even though they
agreed convictions under subdivision (a) of section 288, like
Malbry’s, indeed were tier two offenses. Malbry thus was
“technically eligible” to apply for termination. But they argued
4
section 288 covered a wide range of conduct, and, while some acts
could be less serious, other conduct was highly dangerous. The
“egregious” facts of Malbry’s case were “more aggravated.”
Malbry “took advantage of a position of trust as the victim’s
‘daddy.’ ” Moreover, they argued, a single violation of section
288.7, which was enacted in 2006–after Malbry’s conviction–
covered Malbry’s conduct and mandated lifetime registration,
which showed Malbry posed a significant danger to the
community.
Malbry responded with a legal brief and four pieces of
evidence. This evidence was, first, a one-page letter from
Malbry’s sister-in-law of 25 years. This relative expressed her
and her family’s support for Malbry, whom she described as “an
outstanding citizen in a very upscale neighborhood . . . He is a
church going man, [and] he has donated toys and gifts to children
[in] hospitals for years with his wife . . . .” A second document
was a photocopy of Malbry’s business card for a carpet cleaning
company. Third, a one-page letter from a couple living across the
street described Malbry as a “fantastic neighbor” and a “model
neighbor” who, for 20 years, had taken out their garbage when
they needed it and had demonstrated traits of a good neighbor
and a good citizen. Fourth, Malbry’s wife, who was not the girl’s
mother, wrote a one-page letter confined to reporting how Malbry
had helped her pass out supplies to homeless people on two or
three days during a year.
Malbry himself offered no declaration or statement.
The trial court’s hearing transcript extended for some 40
pages. There was no live testimony; the hearing consisted
entirely of counsel discussing the case with the court.
5
The court concluded Malbry’s “risk, in my opinion, based on
the information that I have in front of me and my own years of
handling cases similar to this is that the risk of re-offense is
extremely elevated. In part, the registration, having a person
register has a beneficial effect in that it hopefully impresses upon
the individual that is registered that he is being watched, he is
being monitored, and that that in a way has a deterrent effect on
the individual . . . [T]here is some deterrent element to
registering . . . in addition to giving the community notice of a
potential risk.”
Malbry appealed the court’s denial of his petition.
II
The trial court rightly denied Malbry’s petition because
continuing his registration as a sex offender significantly
enhances community safety.
A
“The Legislature has long demonstrated a strong resolve to
protect children from sexually inappropriate conduct of all kinds,
including sexual intercourse and oral copulation. [. . .]
[C]onviction of a sexual contact crime may subject the offender to
incarceration, civil penalties, and other consequences. One of the
significant consequences includes application of the Sex Offender
Registration Act, which was enacted to prevent recidivism of sex
offenders and facilitate their surveillance by police.” (Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 874 (Johnson),
citation and footnote omitted.)
In 1947, California became the first state to require sex
offenders to register with law enforcement. (Off. of the Atty.
Gen., California Sex Offender Registry (2024) State of Cal. Dept.
of J. <https://oag.ca.gov/sex-offender-reg> (as of July 23, 2024),
6
archived at https://perma.cc/CX3C-FHYW.) As originally
enacted, the statute created a lifelong obligation to register
annually. (Johnson, supra, 60 Cal.4th at p. 877.)
A central goal of sex offender registration is to prevent
recidivism in sex offenders. This serves a “vital public purpose by
compelling registration of many serious and violent sex offenders
who require continued public surveillance.” (Johnson, supra, 60
Cal.4th at p. 877.)
Children in particular “require paramount protection” from
sex offenders. (Johnson, supra, 60 Cal.4th at p. 877.)
“[M]andating lifetime registration of those who prey on
underage victims serves to notify members of the public of the
existence and location of sex offenders so they can take protective
measures.” (Johnson, supra, 60 Cal.4th at p. 877, quotation
marks and citation omitted.)
Registration is not punishment for a crime. It is a
nonpunitive civil mechanism to protect the public from danger.
(Smith v. Doe (2003) 538 U.S. 84, 93, 96, 105–106; People v.
Mosley (2015) 60 Cal.4th 1044, 1050.) “Although the public
availability of the information may have a lasting and painful
impact on the convicted sex offender, these consequences flow not
from the Act’s registration and dissemination provisions, but
from the fact of conviction, already a matter of public record.”
(Smith v. Doe, supra, at p. 101.)
In 1996, Megan’s Law amended California’s sex offender
registration system. (Fredenburg v. City of Fremont (2004) 119
Cal.App.4th 408, 412 & fn. 1 (Fredenburg); see §§ 290.4, 290.45;
see also Smith v. Doe, supra, 538 U.S. at pp. 89–91 [background
on Megan’s Law].)
7
When enacting Megan’s Law, the California Legislature
declared sex offenders pose a high risk of engaging in further
offenses after release. Protecting the public from these offenders
is a paramount public interest. Members of the public have a
compelling and necessary interest in getting information about
released sex offenders to protect themselves and their children.
(Fredenburg, supra, 119 Cal.App.4th at p. 412.)
Released sex offenders have a reduced expectation of
privacy. The Legislature balanced the offenders’ rights against
the interests of public security and concluded that disclosing
some information about sex offenders would further the primary
government interest of protecting vulnerable populations from
harm. (Fredenburg, supra, 119 Cal.App.4th at p. 412.)
Megan’s Law provided for the collection and limited
disclosure of information about sex offenders who were required
to register by section 290. (Fredenburg, supra, 119 Cal.App.4th
at pp. 413–414.) Law enforcement could inform people or
organizations the offender was likely to encounter, including
schools, day care centers, and community members at risk. (Id.
at p. 416.) Information about registered sex offenders is available
online. (See Off. of the Atty. Gen., California Megan’s Law
Website (2024) State of Cal. Dept. of J. <https://www.meganslaw.
ca.gov/> [as of July 23, 2024], archived at <https://perma.cc/
73WS-LDDS>.)
In 2014, a state agency called the California Sex Offender
Management Board recommended reforms to this sex offender
registration system. (Cal. Sex Offender Management Bd., A
Better Path to Community Safety, p. 7 (2014) <https://casomb.org/
docs/Tiering%20Background%20Paper%20FINAL%20FINAL%20
4-2-14.pdf> [as of July 23, 2024], archived at <https://perma.cc/
8
9JBJ-J6KH> [Tiering Paper].)
The Board noted research showed “a registry can help law
enforcement apprehend the perpetrator more quickly.” (Tiering
Paper, supra, p. 2.)
The Board proposed streamlining to make the system more
effective. California’s undifferentiated list of sex offenders had
grown so large as to imperil its usefulness to law enforcement.
The state had been collecting registration information for more
than 60 years. Many crimes triggered registration. Together
with California’s large population, these forces meant that, over
time, the number of names on the sex offender registry had
become unwieldy. By 2014, the state list of sex offenders
numbered some 100,000 people—the largest in the nation by a
significant margin. (Tiering Paper, supra, pp. 3-6; see also Cal.
Sex Offender Management Bd., Recommendations Report, p. 50
(January 2010) <https://casomb.org/docs/CASOMB%20Report%
20Jan%202010_Final%20Report.pdf> [as of July 23, 2024],
archived at <https://perma.cc/L66V-MDGV>.)
The one-size-fits-all nature of the list unrealistically
equated the danger posed by all sex offenders, when in fact “[n]ot
all sex offenders are at equal risk to reoffend. Low risk offenders
reoffend at low rates, high risk offenders at much higher rates.”
(Tiering Paper, supra, p. 4.) “When everyone [on the list] is
viewed as posing a significant risk, the ability for law
enforcement and the community to differentiate between who is
truly high risk and more likely to reoffend becomes impossible.
There needs to be a way for all persons to distinguish between
sex offenders who require increased monitoring, attention and
resources and those who are unlikely to reoffend.” (Id. at p. 6.)
9
The Board recommended overhauling the state’s
registration system so that “the length and level of registration
matches the risk level of the offender.” (Tiering Paper, supra, p.
7.)
The Legislature responded with a 2017 law called Senate
Bill 384. (Stats. 2017, ch. 541, § 12, p. 31, eff. Jan. 1, 2018,
operative July 1, 2021 (S.B. 384).)
S.B. 384 enjoyed widespread law enforcement support and
no reported opposition. (Daniel Seeman, Enrolled Bill
Memorandum to Governor Edmund G. Brown re Sen. Bill No.
384 (2017-2018 Reg. Sess.), Sept. 22, 2017, p. 1.)
S.B. 384’s author wrote that California’s system of
requiring lifetime registration for many sex crimes, some of
which were relatively nonserious, had resulted in a registration
list “so bloated” that “law enforcement cannot effectively use it.”
(Sen. Wiener, sponsor of S.B. 384, letter to Governor Jerry
Brown, Sep. 16, 2017).
The Los Angeles County District Attorney’s Office was a
sponsor of S.B. 384. That office urged the Governor to sign the
bill. (District Attorney Jackie Lacey, letter to Governor Jerry
Brown, re S.B. 384, Sep. 27. 2017 (Lacey letter).) “California
urgently needs a new sex offender registration system that
focuses attention and resources on high risk and violent sex
offenders. [¶] The list of mandatory registration offenses . . .
includes relatively nonserious offenses, such as indecent exposure
. . . .” (Id. at p. 1.) “[B]ecause of the size of California’s Sex
Offender Registry, it has lost much of its value as an
investigatory tool.” (Id. at p. 2.)
S.B. 384 would “abolish” the current mandatory lifetime
registration and replace it with three tiers reflecting the
10
seriousness of the underlying offense. (Lacey letter, supra, at p.
2.) The bill amended section 290 to create this three-tier system.
“While it sounds contradictory, California will greatly
improve public safety by eliminating our current lifetime sex
offender registration requirement and moving to a system where
registered sex offenders are placed in a tiered system based on
the severity of the offense. Law enforcement is spending too
much of [its] finite sex offender supervision funding on
paperwork of low risk offenders instead of focusing on managing
and supervising high risk offenders that pose the greatest risk to
public safety. Our Sex Offender Registry has become so large
that it produces too many potential suspects when used to try
and solve a sex crime case in many situations. By eliminating
many of the low risk offenders from our registry both of these
issues can be solved.” (Lacey letter, supra, at p. 4.)
S.B. 384 keyed section 290’s three tiers to specified offenses
and established a minimum term of 10 years of registration for
tier one, a 20-year minimum for tier two, and lifetime
registration for tier three. (See § 290, subds. (d)(1)-(3).)
Under the amended system, the registration obligation
does not end automatically after the minimum term. Rather, the
sex offender must petition the court for termination. “The
proposed termination section provides the courts with the ability
to deny termination in certain circumstances (e.g., if continued
registration would enhance community safety).” (Lacey letter,
supra, at p. 3; see § 290.5, subd. (a)(1).)
A sex offender’s petition to end the registration duty can be
granted only after review by law enforcement, the district
attorney, and the court. (Cal. Sex Offender Management Bd.,
Year End Rep., p. 5 (2023) <https://casomb.org/pdf/2023_Year_
11
End_Report.pdf> [as of July 23, 2024], archived at <https://
perma.cc/8EJS-4937> (2023 Year End Rep.).)
In 2023, as a result of S.B. 384, some 5,431 sex offenders
successfully petitioned to have their registration duty
terminated, while only about 105 petitions were denied. (2023
Year End Rep., supra, at p. 10.) It appears that, in many cases,
prosecutors examined the situation and effectively stipulated to,
or did not oppose, the petitions to terminate registration.
We now turn to the law governing Malbry’s case, where the
prosecution opposed his petition, and did so successfully.
B
We affirm on any ground supporting the trial court’s order.
(Pep Boys Manny Moe & Jack of California v. Old Republic
Insurance Co. (2023) 98 Cal.App.5th 329, 334–335.) It is
unnecessary for the trial court to have stated the right rationale
if its result is legally proper. We review for an abuse of discretion
and affirm subsidiary factual findings based on disputed facts if
substantial evidence supports them. We independently review
legal findings, including questions of statutory construction.
(People v. Franco (2024) 99 Cal.App.5th 184, 192–193 (Franco).)
C
The governing statute is section 290.5. We quote its text,
adding bracketed numbers to highlight seven factors the
Legislature made relevant.
“If the district attorney requests a hearing, the 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: [1] the nature
and facts of the registerable offense; [2] the age and number of
12
victims; [3] whether any victim was a stranger at the time of the
offense (known to the offender for less than 24 hours); [4]
criminal and relevant noncriminal behavior before and after
conviction for the registerable offense; [5] the time period during
which the person has not reoffended; [6] successful completion, if
any, of a Sex Offender Management Board-certified sex offender
treatment program; and [7] 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), italics added.)
This provision identifies factors the trial court “shall”
consider, but no language bars consideration of other relevant
factors. This point becomes significant below, when we discuss
our disagreement with Franco.
The statute also does not say how a court should “consider”
these factors. The statute neither directs courts to weigh each
factor equally nor specifies a particular formula for the calculus.
The Legislature evidently delegated these decisions to the courts.
(Cf. Beebe, An Empirical Study of the Multifactor Tests for
Trademark Infringement (2006) 94 Calif. L.Rev. 1581, 1585–1586
[multifactor tests are common in law, prevailing in “wide and
diverse” settings that include trademark, copyright, takings,
evidence, conflict of laws, and criminal law].)
Typically, courts confronting a multifactor test treat the
individual factors as neither exhaustive nor dispositive, but
rather as useful guideposts. (E.g., Smith v. Doe, supra, 538 U.S.
at p. 97.)
D
We apply the seven statutory factors.
13
1
Factor one is “the nature and facts of the registerable
offense.” (§ 290.5, subd. (a)(3).)
Three features of the registerable offense dominate this
analysis: the number of Malbry’s violations; his compulsion to
continue daily until caught; and the Legislature’s post-conviction
determination that this kind of offense conduct is especially
dangerous.
a
The number of violations was large. Every weekday for
three years means hundreds of violations. A considerable
number of offenses suggests considerable danger.
b
As a separate matter, Malbry’s drive to offend daily proves
a strong sexual compulsion. Malbry did not govern his
compulsion, except to avoid detection on the weekends, when the
girl’s mother was home. Malbry did not moderate or stop until
police apprehended him. A high rate of offending suggests a high
level of danger.
c
The nature of Malbry’s offense shows special danger. The
Legislature said so. Malbry’s conduct would have violated section
288.7, which the Legislature passed years after Malbry’s
conviction. According to section 290 as it stands today, a
conviction under section 288.7 would have rendered Malbry a tier
three offender, which in turn would have required lifetime
registration.
The prosecution correctly argues this consideration
supports the trial court’s denial of Malbry’s petition.
14
We explain section 288.7, which is a significant factor in
this case.
Years after Malbry’s 1991 conviction, in 2006, the
Legislature enacted section 288.7. (Stats. 2006, ch. 337, § 9.)
The statute provides that adults who engage in sexual
intercourse with a child who is 10 years of age or younger are
guilty of a felony and shall be punished by imprisonment in state
prison for a term of 25 years to life. (§ 288.7, subd. (a).) People
convicted of violating section 288.7 are tier three offenders who
must register for life. (§ 290, subd. (d)(3)(C)(xiv).) This status
would preclude relief under section 290.5. (§ 290.5, subd. (a)(1)
[only tier one and two offenders may petition for relief].)
This post-conviction change in the law is relevant to an
assessment of Malbry’s current danger to the community because
it demonstrates heightened public concern about Malbry’s offense
conduct: adult sexual intercourse with a young child. Although
not decisive, this point is pertinent. It supports the trial court’s
order.
That Malbry’s penetrations of the girl may have been
partial does not mitigate Malbry’s danger to the community.
Young children are smaller than adults, meaning some acts are
physically difficult or impossible. The law treats partial
penetrations the same as other penetrations. (People v. Mendoza
(2015) 240 Cal.App.4th 72, 79 [“any penetration, no matter how
slight”].)
To summarize, factor one suggests Malbry is a community
risk. The weight of this factor is substantial, and distinguishes
this case from others involving isolated and less dangerous
conduct. (E.g., People v. Thai (2023) 90 Cal.App.5th 427, 430 [one
episode of masturbating a 12-year-old boy].)
15
2
Factor two is “the age and number of victims.” (§ 290.5,
subd. (a)(3).)
There was only one victim, but the child was very young:
in the range of kindergarten to third grade. Children this age
tend to be naive, vulnerable, and trusting. Malbry’s willingness
to prey upon a kindergartener increases the danger he poses,
because the very young are less likely to realize a situation is
perilous and are less able to extricate themselves. These
members of a community are among its most vulnerable.
Factor two suggests heightened risk to the community.
3
Factor three is “whether any victim was a stranger at the
time of the offense (known to the offender for less than 24
hours).” (§ 290.5, subd. (a)(3).)
Malbry was not a stranger. He was a member of the
household. The girl called him “Daddy.”
The California Sex Offender Management Board reported
that about 93% of sex offenses against children were committed
by people the victim knew, not by strangers. (Tiering Paper,
supra, at p. 2.) Malbry thus belonged to the category posing the
greatest danger to children.
This fact is descriptive. We are unsure it is predictive. We
give this factor no weight because its implications are ambiguous.
4
Factor four is “criminal and relevant noncriminal behavior
before and after conviction for the registerable offense.” (§ 290.5,
subd. (a)(3).) The offense of conviction is the only crime on
Malbry’s record. This factor mitigates risk.
16
5
Factor five is “the time period during which the person has
not reoffended.” (§ 290.5, subd. (a)(3).) Malbry has gone for more
than three decades without reoffending. This factor mitigates
risk.
6
Factor six is “successful completion, if any, of a Sex
Offender Management Board-certified sex offender treatment
program.” (§ 290.5, subd. (a)(3).)
Malbry has not sought counseling or therapy. He has made
no effort to gain professional or systematic help to understand
why he so persistently exploited a grade schooler. (Cf. Franco,
supra, 99 Cal.App.5th at p. 189 [petitioner showed “the progress
he made in psychotherapy sessions, completion of a counseling
program, and willingness to admit to the crimes and show
remorse”].)
This factor strongly suggests a risk to the community.
7
Factor seven 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.” (§ 290.5, subd. (a)(3).)
Malbry’s current risk of sexual reoffense is substantial
because he has demonstrated no insight into his misconduct.
Wrongdoers gain insight by fully appreciating the harm
they caused. Coupling that appreciation with acceptance of
responsibility and sincere regret can yield some confidence that
wrongdoers truly want to mend their ways.
Conversely, people may not change if they see no real
reason or need to change.
17
In re Shaputis (2011) 53 Cal.4th 192, 218, for instance,
spoke to these points in the context of parole determinations.
(Ibid. [“the presence or absence of insight is a significant factor in
determining whether there is a ‘rational nexus’ between the
inmate’s dangerous past behavior and the threat the inmate
currently poses to public safety”]; id. at p. 219 [“[L]ack of insight
pertains to the inmate’s current state of mind, unlike the
circumstances of the commitment offense. . . . Thus, insight
bears more immediately on the ultimate question of the present
risk to public safety posed by the inmate’s release”]; id. at p. 220
[“Rational people, in considering the likely behavior of others, or
their own future choices, naturally consider past similar
circumstances and the reasons for actions taken in those
circumstances. Petitioner’s argument that the inmate’s insight
should play no role in parole suitability determinations flies in
the face of reason.”].)
Further authorities are available but unnecessary. Insight
into wrongdoing is a commonsense factor in judging whether
someone is likely to do better.
Malbry has not admitted error, has not apologized, and has
not vowed to change. His plea was “no contest,” not “guilty.”
This absence of contrition and lack of a commitment to
change tend to counterbalance his decades of law-abiding
conduct.
This factor strongly suggests Malbry poses a risk to the
community.
Malbry’s papers prominently cite his age, obliquely
suggesting he is too old to cause social harm. The notion
someone in his seventies cannot, or is unlikely to, commit sexual
assault lacks a basis in the record.
18
The statute’s reference to SARATSO is to the State
Authorized Risk Assessment Tools for Sex Offenders, which
section 290.04 mandated in 2006. (See People v. Toussain (2015)
240 Cal.App.4th 974, 980–983 [reviewing SARATSO provisions].)
Malbry’s release from prison predated the SARATSO regime.
(Cf. § 290.06, subd. (a)(1) [assessment should take place at least
four months before release from incarceration].) Neither side
requested a SARATSO evaluation. Malbry’s appellate counsel
offers his own evaluation in his brief, but the prosecution rightly
responds this assessment is to be applied by trained and
impartial professionals and not by partisan advocates. (See
SARATSO, Training Information (2024) <https://saratso.org/
index.cfm?pid=1357> [as of July 23, 2024], archived at
<https://perma.cc/43ZZ-K384> [“SARATSO must certify all
scorers on the risk instruments”]; 2023 Year End Rep., supra, at
p. 24 [“All scorers and trainers must pass an initial training and
then be recertified every two years on the instrument(s) they
use.”].) In this situation, the absence of a SARATSO evaluation
does not weigh one way or the other.
* * * * *
Qualitatively, the record showed “community safety would
be significantly enhanced by requiring continued registration.”
(§ 290.5, subd. (a)(3).)
Weighty factors are the number of Malbry’s violations, his
compulsion to continue daily until caught, the Legislature’s
determination that this conduct is especially dangerous, and
Malbry’s willingness to prey on a vulnerable child. Important as
well is Malbry’s lack of effort to give a court confidence that he is
a changed person: no words of insight, and no deeds of therapy.
He has gone decades without reoffending, but Malbry refrained
19
from abusing the girl when her mother was home to avoid getting
caught; these assault-free weekends did not show Malbry then
was harmless. By the same token, the crime-free decades do not
now outweigh the signs that Malbry continues to pose a
significant community hazard.
E
The post-conviction passage of section 288.7 is relevant and
counts against Malbry’s petition. We respectfully disagree with
the recent Franco decision, which rejected the relevance of
section 288.7.
The prosecution in Franco argued the defendant there
“could have been charged—and likely convicted—of violating
section 288.7, a statute that was not enacted until 2006 . . . .”
(Franco, supra, 99 Cal.App.5th at p. 194.) The prosecution
contended “the nature of the offense by itself establishes a
perpetual likelihood of reoffending and thus may permissibly be
viewed as controlling.” (Id. at p. 195, italics added.)
This is similar, although not identical, to the argument the
prosecution makes in Malbry’s case. The prosecution here argues
this factor is relevant, not “controlling.” (See Franco, supra, 99
Cal.App.5th at p. 195.)
The Franco decision rejected the prosecution’s argument:
“Although this argument is not without some logical
gravity, we nevertheless reject it because sections 290 and 290.5
did not adopt this approach. These statutes hinge the
designation of tiers (and hence the minimum duration of
registration as a sex offender) on whether the defendant ‘was
convicted’ of certain crimes (§ 290.5, subd. (d)(2), (3)(C))—not on
whether the defendant ‘could have been convicted’ of other
crimes, including crimes that did not yet exist at the time the sex
20
offense was committed. Our Legislature has, in other contexts,
tasked the courts with independently determining whether a
criminal defendant previously convicted of a particular crime
under a particular theory might still be guilty of the same crime
under a different theory or, failing that, guilty of a different
crime. (See, e.g., § 1172.6.) By explicitly tying tier placement to
the offense of which the defendant ‘was convicted,’ our
Legislature in sections 290 and 290.5 opted not to follow this
other approach. We cannot gainsay our Legislature’s choice.”
(Franco, supra, 99 Cal.App.5th at p. 195, footnote and citations
omitted, italics added.)
The implicit premise was that sections 290 and 290.5 are
inconsistent with section 288.7: that the former adopted one
approach and section 288.7 adopted “this other approach.”
(Franco, supra, 99 Cal.App.5th at p. 195, italics added.)
We have a different perspective than our colleagues. In our
view, sections 288.7, 290, and 290.5 are consistent: they serve
the same purpose and can be read harmoniously. Section 288.7 is
a legislative judgment informing sections 290 and 290.5. Nothing
in these statutes renders section 288.7 irrelevant to analyses
under sections 290 and 290.5.
We interpret statutes to harmonize them. (E.g., Kaanaana
v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 175
[courts should construe statutes together and give effect to all
parts of the statutory scheme].)
This canon of interpretation is basic. (E.g., Lexin v.
Superior Court (2010) 47 Cal.4th 1050, 1090–1091 (Lexin); Scalia
& Garner, Reading Law: The Interpretation of Legal Texts
(2012) p. 252.)
21
These statutes have the same purpose, which is efficiently
protecting the public from sex offenders. (Cf. Apple Inc. v.
Superior Court (2013) 56 Cal.4th 128, 135 [when construing
statutes, the fundamental task is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute].)
To put the plain English into Latin, these statutes are in
pari materia. (Lexin, supra, 47 Cal.4th at pp. 1090–1091.)
The post-conviction passage of section 288.7 is relevant
because it demonstrates a changing public attitude about the
danger of sexual abuse of young children. When assessing the
current risk Malbry might pose, it is appropriate for courts to
take note of legislative actions bearing on the question.
Section 288.7 has expressed a new and significant
legislative judgment about dangerousness. When Malbry was
convicted, adult sexual intercourse with a child under 10 was
generally illegal but was not the target of focused and heightened
attention in California’s criminal law. The public view today,
however, is that adult intercourse with a young child is gravely
dangerous and must be deterred with the severe penalty of 25
years to life in prison. The Legislature passed section 288.7 to
express this magnified concern. Sections 288.7, 290, and 290.5
thus are complementary. They are not antithetical.
We do not hold Malbry’s petition should be denied because
he could have been convicted of violating section 288.7. Rather,
the enactment of section 288.7 is significant because the
Legislature, by increasing the penalty for adult sexual
intercourse with a child under 10, expressed its view that this
conduct posed a greater community hazard than previously
thought. This legislative assessment influences our view of
Malbry’s present risk to the community.
22
We depart from Franco’s analysis on this point.
In any event, Franco is distinguishable from Malbry’s case.
In Franco, the petitioner committed a single act of sexual
intercourse with a young girl. (Franco, supra, 99 Cal.App.5th at
p. 188.) Malbry offended hundreds of times, on a daily basis.
And the petitioner in Franco touted “the progress he made in
psychotherapy sessions, completion of a counseling program, and
willingness to admit to the crimes and show remorse” and other
factors that Malbry has omitted to mention. (Id. at p. 189.)
In sum, Franco does not show this trial court erred in
finding “community safety would be significantly enhanced by
requiring continued registration” by Malbry. (§ 290.5, subd.
(a)(3).)
E
In a one-sentence argument, Malbry contends that, for the
reasons he “discussed above” in his appellate brief, we should
“reverse the part of the court’s order precluding Mr. Malbry from
filing another petition for a three-year period and instead remand
with directions that Mr. Malbry be allowed to file a new petition
after the minimum one-year period.” Malbry’s opening brief
devoted no additional logic or authority to this point.
We decline to decide a separate issue on the basis of rote
incorporation of reasoning “discussed above.” Malbry’s single
sentence is insufficient to summon a further decision on a new
topic. (E.g., Tilbury Constructors, Inc. v. State Comp. Ins. Fund
(2006) 137 Cal.App.4th 466, 482.)
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DISPOSITION
We affirm the order.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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