People v. Howardkidd CA1/1 ( 2021 )

Filed 3/25/21 P. v. Howardkidd CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A159924
v. (San Francisco County Super.
TEANDRE HOWARDKIDD, Ct. No. SCN 230852)
Defendant and Appellant.
During a trial in which Teandre Howardkidd was charged with felony
burglary with intent to commit a sexual assault (Pen. Code,1 §§ 220, subd. (b),
460, subd. (a), count one), felony first degree residential burglary (§ 459,
count two), felony attempted rape by force, violence, or threat of bodily injury
(§§ 261, subd. (a)(2), 664, count three), and misdemeanor elder abuse (§ 368,
subd. (c), count four), the jury found Howardkidd guilty of two misdemeanors:
simple battery, a lesser included offense of count one, and elder abuse, count
four. The trial court sentenced Howardkidd to credit for time served.
Although Howardkidd was not convicted of a crime requiring that he
register as a sex offender (§ 290, subd. (c)), the trial court found that he had
All statutory references are to the Penal Code unless otherwise
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specified.
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committed the crimes “as a result of sexual compulsion or for purposes of
sexual gratification,” and ordered that he register as a sex offender pursuant
to its discretionary authority under section 290.006, subdivision (a).
Howardkidd’s sole contention on appeal is that the trial court abused its
discretion by ordering sex offender registration in this case. He specifically
asserts that substantial evidence does not support either that he committed
the offense for purposes of sexual gratification or that he was likely to
reoffend. Seeing no merit to these claims, we affirm.
BACKGROUND
A. Evidence Presented at Trial
The victim in this matter, Ms. Y., was 101 years old when she testified
at trial in December 2019 with the assistance of an interpreter. She did not
speak English. According to Ms. Y., on December 31, 2018, she opened her
door in response to a knock, believing the person was a fellow resident of the
restricted-access building. A stranger walked inside, washed his hands, laid
down on her bed, and pulled out his erect penis. He then pulled down her
pants and underwear and pushed his penis towards her. She repeatedly
screamed and yelled at him to get out. She grabbed his penis to try and stop
him. She pulled on his arm and his clothing to get him off the bed and he
eventually left. A surveillance video showed a man climbing the wall of the
apartment building and entering the building at around 12:30 p.m. on the
day of the incident.
Howardkidd was arrested the next day and admitted he was the man
in the surveillance video. Howardkidd’s audio interview with the police was
played for the jury. Howardkidd claimed he had visited the apartment
previously, at which time an Asian lady—whom he described as around 70—
told him to come in and invited him to return. When he returned on the day
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of the incident, she allowed him inside and, after he washed his hands, he
gave her a hug. She told him that he was getting her “horny,” and they were
close to having sex. Howardkidd reported that he touched her leg and her
vagina over her clothes but stopped when she said that was enough. He also
stated that he put his hands under her pants and that she held his hand
while it touched her vagina. Howardkidd claimed he spoke to Ms. Y. in
English and she spoke to him in English.
Howardkidd’s uncle testified for the defense that he lived on the same
floor near Ms. Y. and that Howardkidd would sometimes visit him without
calling first. Howardkidd’s sister testified that Howardkidd seemed to
develop mental health issues after his mother died when he was 17, and that
his behaviors appeared to get worse over the course of the prior 10 years. Dr.
Laeeq Evered diagnosed Howardkidd as suffering from schizophrenia, which
can impair problem-solving and inhibiting behavior. On the day of the
incident, Dr. Evered believed Howardkidd’s schizophrenia could have been
exacerbated by drug use.
Dr. John Greene testified in rebuttal that he had evaluated
Howardkidd in October 2019 and concluded that he suffered from substance
abuse issues rather than schizophrenia. He opined that neither substance
abuse nor mental illness substantially affected Howardkidd’s behavior with
Ms. Y. on the date of the incident. Dr. Evered testified on surrebuttal,
challenging Dr. Greene’s interpretation of certain test results and the efficacy
of his interview techniques.
B. Jury Verdict and Sentencing
The jury began its deliberations in the afternoon of December 6, 2019.
On the next court day, December 9, 2019, the jury convicted Howardkidd of
the lesser included offense of misdemeanor battery on count one and of
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misdemeanor elder abuse on count four. Howardkidd was found not guilty of
assault with intent to commit rape (count one), burglary (count two), and
attempted rape (count three).
Prior to sentencing, the prosecutor filed a request for the court to order
Howardkidd to register as a sex offender pursuant to section 290.006. The
prosecutor argued that Howardkidd had clearly committed the offenses of
battery and elder abuse “as a result of a sexual compulsion or for purposes of
sexual gratification.” (§ 290.006, subd. (a).) Moreover, according to the
prosecutor, Howardkidd’s criminal, substance abuse, and medical histories,
the circumstances of the offense, and Howardkidd’s “ ‘well-above average’ ”
risk of recidivism all supported imposition of a registration requirement.
Defense counsel opposed the request, arguing that the burdens of
registration—such as difficulty in finding housing and employment—
outweighed the “slight chance” Howardkidd might re-offend. Defense counsel
also challenged the prosecutor’s conclusion that the offenses were sexually
motivated, claiming they were the result of Howardkidd’s delusional belief
that Ms. Y. wanted to have sex with him.
According to the probation department’s presentence report,
Howardkidd’s criminal history reflected ten convictions as an adult, including
“six theft-related offenses, two weapon-related offenses and one drug-related
offense.” Howardkidd had accrued multiple arrests and revocations while on
probation, leading to unsuccessful terminations and a prison commitment.
He was convicted of felony automobile theft with a prior (§ 666.5, subd. (a))
and felony evading a police officer with disregard for safety (Veh. Code, §
2800.2, subd. (a)), after leading law enforcement on a high-speed chase in
which he reached speeds of up to 120 miles per hour and forced other vehicles
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off the road. He received a 44-month prison sentence and was on parole for
these offenses when he committed the instant crimes.
The presentence report further detailed a significant substance abuse
history. Howardkidd reported daily use of marijuana since 2006, identifying
it as his drug of choice. He also reported weekly use of cocaine and
methamphetamine since the age of 19, with his last use just days prior to the
incident with Ms. Y. Howardkidd used heroin sporadically from 2011 to 2015
but stopped using it due to its side effects. He admitted being under the
influence of marijuana and another controlled substance during the
commission of these offenses.
Probation scored Howardkidd using the Static-99R, an actuarial
measure for risk of sexual offense recidivism. Howardkidd received a score of
six, which correlates to a well above average risk of being charged or
convicted of another sexual offense within five years of release. In addition,
Howardkidd scored “ ‘High’ ” for violent and general recidivism risk using the
COMPAS risk probability scale assessment. According to probation, “[t]he
assessment identified criminal opportunity and criminal personality as top
criminogenic needs requiring immediate attention. These results are
consistent with [Howardkidd’s] impulsive decision-making and substance
use.”
Probation identified five aggravating factors concerning the instant
offenses: a particularly vulnerable victim, numerous prior convictions, a prior
prison term, commission of current offenses while on post release community
supervision, and unsatisfactory prior performance on parole and probation—
and no factors in mitigation. Since Howardkidd had already fulfilled the
maximum sentence on each misdemeanor count for which he was convicted,
probation recommended that Howardkidd be sentenced to serve one year in
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county jail, with credit for 733 days served, and that he register as a sex
offender pursuant to section 290.
At the sentencing hearing on March 6, 2020, the prosecutor rested on
her briefing. Defense counsel stressed the isolated nature of the incident,
stating: “He has zero prior similar acts or behaviors in his entire history.”
She also challenged the finding of the Static-99R that Howardkidd was at
well above average risk for sexual re-offense. And she suggested that, if
Howardkidd had really wanted to satisfy his sexual needs, he would not have
left when Ms. Y. objected to his advances. Finally, defense counsel asked
that any registration requirement be limited to ten years and that the court
consider suspending the registration requirement while closely monitoring
Howardkidd on probation.
The trial court sentenced Howardkidd to 180 days in county jail on
counts one and four each, with credit for time served. In determining that
sex offender registration was appropriate in the case, the trial court first
found that Howardkidd committed the acts for purposes of sexual
gratification. The court noted that, while it did not necessarily disagree with
the jury’s verdicts based on a reasonable doubt standard, that was not the
standard applicable to the court’s registration decision, explaining: “I’m
allowed to consider everything I heard and apply a preponderance of the
evidence standard and look at the overall factors in the case.”
The trial court then discussed its reasons for imposing the registration
requirement, stating: “I think there’s very little dispute that [Howardkidd],
regardless of whether the etymology [is] his drug use or a delusional system
based on late onset schizophrenia or a combination of them both,
[Howardkidd] on this particular date thought that the 99-year-old victim was
coming on to him and was sexually interested in him.” The court concluded it
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was unnecessary for it to determine the underlying cause or causes, focusing
instead on Howardkidd’s behaviors. It cited evidence that Howardkidd had
suffered from auditory hallucinations and psychosis during the previous
several years; he had engaged in “extremely impulsive” behavior with the car
chase; he was described by Dr. Evered as exhibiting poor planning, limited
capacity to cope, and cognitive distortions; he had disclosed to Dr. Greene
that he was high on “crystal and weed” on the day of the incident; and he
showed an above average risk of recidivism according to the Static-99R. The
court also highlighted evidence from family members that Howardkidd’s
functioning level had been declining since his mother’s death and responded
to the argument that this was his first incident of sexually acting out as
follows: “We don’t know how [Howardkidd’s] past behavior really is a
predictor of his future behavior. This is the first time that he has, as far as
the court knows, sexually act[ed] out in an extreme way like he did here.
That’s because he unfortunately is getting more ill and his needs for
treatment are even greater than when he was previously undiagnosed.”
Based on the foregoing factors, the court deemed sex offender
registration appropriate. However, while lifetime registration was required
at the time of sentencing, the trial court acknowledged that changes to the
law effective January 2021 would allow for a tiered registration requirement.
(See §§ 290, subds. (d) & (g), 290.006, subds. (b)-(d).) The court suggested
that a limited registration period for Howardkidd would be appropriate in the
future, stating: “My plan would be to impose the registration requirement
according to law now, which is lifetime registration. I’d recommend a ten-
year registration period. These are misdemeanors. It’s discretionary
whether to impose it at all. Whether the Department of Justice decides to
follow that or not, that’s really up to them. [¶] I certainly would recommend
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that it be a limited non-lifetime registration, obviously, if there’s no issues in
the next ten years.” This appeal followed.
DISCUSSION
A. The Sex Offender Registration Act (§ 290 et seq. (Act))
“California law has long required persons convicted of certain specified
sex crimes . . . to register as sex offenders as long as they live or work in
California.” (People v. Mosley (2015) 60 Cal.4th 1044, 1048 (Mosley).)2
“ ‘ “ ‘The purpose of section 290 is to assure that persons convicted of the
crimes enumerated therein shall be readily available for police surveillance
at all times because the Legislature deemed them likely to commit similar
offenses in the future. [Citation.] ’ ” ’ ” (People v. Hofsheier (2006) 37 Cal.4th
1185, 1196 (Hofsheier), overruled on other grounds in Johnson v. Department
of Justice (2015) 60 Cal.4th 871, 888; see also Lewis v. Superior Court (2008)
169 Cal.App.4th 70, 78 (Lewis) [noting “the purpose of sex offender
registration is to keep track of persons likely to reoffend”].) Thus, the
registration requirement is regulatory rather than punitive. (See Mosley, at
pp. 1059-1060, 1062; Hofsheier, at p. 1197.)
Section 290, subdivision (c) lists the crimes for which sex offender
registration is mandatory. It does not include either battery (§ 242) or elder
abuse (§ 368, subd. (c)). The mandatory registration provisions of the Act
therefore do not apply to Howardkidd. A trial court, however, has discretion
to order “[a]ny person . . . to register pursuant to the [A]ct who is not required
to register pursuant to Section 290 . . . if the court finds at the time of
conviction or sentencing that the person committed the offense as a result of
2 Effective January 1, 2021, this registration requirement may be for 10
years, for 20 years, or for life depending upon the circumstances of the
underlying case. (See §§ 290, subds. (d) & (g), 290.006, subds. (b)-(d).)
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sexual compulsion or for purposes of sexual gratification.” (§ 290.006, subd.
(a).) Should the trial court exercise its discretion to require registration
under this provision, the court is required to “state on the record the reasons
for its findings and the reasons for requiring registration.” (Ibid.)
“[D]iscretionary registration does not depend on the specific crime for which a
defendant was convicted. Instead, the trial court may require a defendant to
register under section [290.006] even if the defendant was not convicted of a
sexual offense.” (Hofsheier, supra, 37 Cal.4th at pp. 1197-1198.)
When ordering discretionary sex offender registration, “ ‘the trial court
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 . . . registration as a sex offender.’ ” (People v. King
(2007) 151 Cal.App.4th 1304, 1308, quoting Hofsheier.) “By requiring a
separate statement of reasons for requiring registration even if the trial court
finds the offense was committed as a result of sexual compulsion or for
purposes of sexual gratification, the statute gives the trial court discretion to
weigh the reasons for and against registration in each particular case.”
(Hofsheier, supra, 37 Cal.4th at p. 1197.) The trial court makes its findings
in this context by a preponderance of the evidence. (People v. Marchand
(2002) 98 Cal.App.4th 1056, 1058; see also Mosley, supra, 60 Cal.4th at p.
1052, fn. 4; People v. McCullough (2013) 56 Cal.4th 589, 598.) Moreover,
“ ‘the trial court logically should be able to consider all relevant information
available to it at the time it makes its decision.’ ” (Lewis, supra, 169
Cal.App.4th at p. 79.)
On appeal, we review the imposition of sex offender registration under
section 290.006 for abuse of discretion. (See, e.g., People v. Eastman (2018)
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26 Cal.App.5th 638, 648.) “To establish an abuse of discretion, defendants
must demonstrate that the trial court’s decision was so erroneous that it ‘falls
outside the bounds of reason.’ [Citations.] A merely debatable ruling cannot
be deemed an abuse of discretion.” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 390.) However, “[t]he abuse of discretion
standard is not a unified standard; the deference it calls for varies according
to the aspect of a trial court’s ruling under review. The trial court’s findings
of fact are reviewed for substantial evidence, its conclusions of law are
reviewed de novo, and its application of the law to the facts is reversible only
if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th
706, 711-712.) Accordingly, to the extent Howardkidd challenges the
evidentiary basis for the trial court’s imposition of the registration order, we
apply a substantial evidence standard of review to those evidentiary findings.
B. The Trial Court Did Not Err in Imposing Sex Offender
Registration
Howardkidd argues that the trial court abused its discretion in
imposing a sex offender registration requirement because he committed the
offenses as a result of his psychotic delusions rather than for purposes of
sexual gratification. He argues further that the evidence did not support the
trial court’s conclusion that he was likely to reoffend. Substantial evidence,
however, supports both of these determinations.
Howardkidd challenges the trial court’s finding that he committed the
offenses at issue for purposes of sexual gratification by arguing that his
behavior was instead motivated by his delusional state. His argument
assumes that being subject to delusions somehow precludes him from acting
for purposes of sexual gratification. Howardkidd cites no authority for this
proposition. Here, substantial evidence supports the court’s finding that
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Howardkidd committed the offenses for sexual gratification. He pulled down
Ms. Y.’s pants and underwear and exposed his erect penis. That he may have
done so under the delusion that Ms. Y was interested in his sexual advances
does not change the intent behind his behavior. One can reasonably presume
that Howardkidd would not have responded in this way had he not been
interested in his own sexual gratification.
Next, Howardkidd asserts that evidence he was likely to commit
another sexual offense was lacking in his case. Howardkidd relies on Lewis,
supra, 169 Cal.App.4th 70, which states: “Since the purpose of sex offender
registration is to keep track of persons likely to reoffend, one of the ‘reasons
for requiring registration’ under section 290.006 must be that the defendant
is likely to commit similar offenses . . . like those listed in section 290 . . . in
the future.” (Id. at p. 78.) The Attorney General argues that nothing in the
statutory language requires a trial court, at the time of sentencing, to
speculate as to the likelihood that a defendant will sexually reoffend. (But
see Mosley, supra, 60 Cal.4th at p. 1048 [“If the conviction is for an offense
other than those automatically requiring registration, the court may
nonetheless exercise its discretion to impose a registration requirement if the
court finds the offense was sexually motivated or compelled, and that
registration is justified by the defendant’s risk of reoffense.”].) We need not
resolve this disagreement because substantial evidence supports a finding
that Howardkidd was likely to commit a similar sexual offense in the future.
Although this was Howardkidd’s first sexual offense, the trial court
explained that it could be viewed as part of Howardkidd’s escalating
impulsive behaviors. The probation report identified impulsive decision-
making as part of Howardkidd’s top criminogenic needs requiring immediate
attention. Dr. Evered described Howardkidd as exhibiting poor planning and
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cognitive distortions. Contrary to Howardkidd’s contention, these general
character traits are also relevant to a determination whether he was likely to
re-offend sexually. Indeed, as the trial court explained to defense counsel,
such factors are included in the Static-99R analysis precisely because “they
correlate with reoffense.”
The trial court also expressed concern that Howardkidd’s level of
functioning was declining and that he was increasingly in need of treatment.
Although Howardkidd argues there is no evidence that he was getting more
ill, the court’s conclusion was supported by escalating criminal behaviors, the
testimony of his sister, and his history of psychiatric contacts over the
previous several years. Further, while appellate counsel posits that
Howardkidd, having been diagnosed, would likely now seek treatment and
improve, the record suggests otherwise. Howardkidd had resisted the idea of
getting help in the past, and, although the trial court encouraged him to seek
treatment, it recognized that it had no power to compel him to do so.
Finally, the trial court took into account the Static-99R score and its
finding that Howardkidd represented a “well above average” risk of sexual
reoffense. The court noted that the score HowardKidd received on the
instrument, a six, translates into a recidivism rate of “20 percent over five
years.” An elevated risk of reoffense under the Static-99R supplies further
evidentiary support for the trial court’s finding that Howardkidd was likely to
reoffend. Howardkidd argues that his Static-99R score was entitled to very
little weight because it is only moderately predictive and is simply a
“ ‘starting point’ ” for an analysis of the likelihood of sexual recidivism. (See
People v. Therrian (2003) 113 Cal.App.4th 609, 615-616.) As the trial court
noted, however, the Static-99R is a validated risk instrument that has long
been accepted in judicial proceedings. And, there is no indication in the
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record that the trial court placed undue emphasis on this analytical tool.
Rather, the court’s focus was on Howardkidd’s untreated and increasingly
dysfunctional behaviors. Under these circumstances, we see no abuse of
discretion in the trial court’s decision to mandate sex offender registration in
this case.
DISPOSITION
The judgment is affirmed.
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SANCHEZ, J.
We concur.
HUMES, P.J.
BANKE, J.
(A159924)
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