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Discretionary Order to Register as a Sex Offender

The Reader’s Digest Version: A judge may exercise his or her discretion to order that a person register as a sex offender under Penal Code § 290 as long as the judge states on the record “(1) whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification and state the reasons for these findings; and (2) the reasons for requiring lifetime registration as a sex offender.”
On October 11, 2014, a woman, J., went to a wedding in Madera County and drank alcohol.  After the wedding, she then asked her best friend, Kacie, to pick her up and go to a bar.  Kacie instead invited J. to her friend Brittany's house in Madera Ranchos.  J. accepted the invitation and Kacie picked her up.

Brittany lived with Guadalupe Contreras, Jr., her fiancé.  When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras.  They had about four of five shots. 

About 30 to 45 minutes later, J. went to the bathroom and vomited and Brittany and Kacie went to the bathroom to help her out.  Britany got a pair of sweatpants and a shirt for J. to change into.  J. then got into Britany and Contreras’ bed to sleep.

Meanwhile, Britany, Kacie and Contreras sat on the back patio and Britany fell asleep.

Contreras said something to Kacie like, “I’m going to get that bitch out of my bed” and went into the house.

J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her.  She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis.  J. then opened her eyes and saw it was Contreras.

J. said “no” and Contreras put his hand on J.’s neck.  J. again said “no” and Contreras then inserted his penis into J.’s vagina.  J. again told him to stop and after several minutes of intercourse, he did and forced J.’s head down toward his penis and inserted it into her mouth.

Kacie then entered the room and yelled, “What the fuck?”  Kacie testified at trial that after Contreras left he patio, she remained on the patio waiting for Contreras to return until she started to hear J.  and Contreras moaning; the moaning sounded pleasurable.  She then went into the house.  After she entered the room and yelled, J. hid under the covers and would not let them go as Kacie tried to pull them off her.

J. eventually let go of the covers and ran out of the house, crying and saying, “He made me.  He made me.  I didn’t want to.  He made me.”  J. then walked to her mother’s house and told her mother what happened.  Her mother took her to the emergency room and law enforcement was contacted. 

Contreras was charged with rape (Penal Code § 261(a)(2)) and forcible oral copulation (Penal Code § 288(a)(2)(A)), but was found not guilty of rape and was acquitted of forcible oral copulation.  However, he was convicted of only misdemeanor battery, Penal Code § 242, as a lesser included offense of the rape charge.

Before sentencing, the judge ordered that the probation department prepare a STATIC 99 risk assessment as well as a State-Authorized Risk Assessment Tool for Sex Offenders (“SARATSO”), which is for male sex offenders, which both evaluate the risk that the subject will commit further sex offenses. 

Contreras’ score of 4 placed him as an “above average risk,” just one level below the highest category of “well above average risk,” meaning Contreras had an above average risk of being charged or convicted of another sex offense within five years of being released on probation.

The trial court judge placed him on probation and exercised its discretion to require him to register as a sex offender for life (then it was life, prior to SB 384), finding that the battery was committed for the purpose of sexual gratification.

Contreras appealed to the Fifth Appellate District Court the order that he register as a sex offender on three grounds, but this article will only cover his argument that the judge abused his discretion in ordering registration because there was “no evidence” he was likely to reoffend.

The Fifth Appellate District denied Contreras’ appeal on this issue and affirmed the trial court order, finding that Penal Code § 290.006, permitting the judge discretion to order sex offender registration, was satisfied.  The appellate court explained that the trial court adequately stated its reasons on the record why it found that Contreras committed the offense as a result of sexual compulsion or for purposes of sexual gratification.

The appellate court explained that for a court to exercise its discretion under 290.006, it must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender.”

The appellate court explained further that a judge does not abuse his discretion “unless its decision is so irrational or arbitrary that no reasonable person could agree with it.”  People v. Carmony (2004) 33 Cal. 4th 367, 375.

Here, the appellate court found that the trial court judge properly explained its reasons and rejected Contreras' argument that the judge must find that defendant is likely to reoffend.  The appellate court held that the court does not need to find this to order that he register as a sex offender.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Guadalupe Contreras, Jr. (5th App. Dist., 2021) 70 Cal. App. 5th 247, 285 Cal. Rptr. 3d 283.

For more information about registering as a sex offender, please click on the following articles:
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