People v. Elam CA4/1 ( 2022 )

Filed 4/14/22 P. v. Elam CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078749
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD288004,
SCD287627, SCD285168)
DESHAWN RAMON ELAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Theodore M. Weathers, Judge. Affirmed.
Deanna L. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Charles Ragland, Assistant Attorneys
General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General,
for Plaintiff and Respondent.
INTRODUCTION
A 16-year-old rape victim fleeing her assailant approached Deshawn
Ramon Elam, who had an admitted history of pimping, for help. When the
minor victim told 27-year-old Elam she had been raped and was lost, Elam
responded by saying, “ ‘Good, you don’t know where you are. You’re my bitch
now.’ ” He offered to pay her for sex, and although she resisted because she
was still in pain from the rape, she eventually consented. Elam pled guilty to
sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (c).)1
Elam appeals the trial court’s discretionary decision to require him to
register as a sex offender. (§ 290.006, subd. (a).)2 He contends the record
contained insufficient facts to support the conclusion that he committed the
offense for sexual gratification or as the result of a sexual compulsion, factual
findings that must be made when ordering discretionary sex offender
registration. He also contends the trial court violated section 290.006 by
failing to state these findings on the record. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Elam’s Guilty Plea to Sexual Intercourse with a Minor
This appeal arises from a sentence imposed in one of three unrelated
cases involving different criminal conduct (SCD285168, SCD287627, and
1 Unspecified statutory references are to the Penal Code.
2 Section 290.006, subdivision (a), provides: “Any person ordered by any
court to register pursuant to the act, who is not required to register pursuant
to Section 290, shall so register, if the court finds at the time of conviction or
sentencing that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification. The court shall state on
the record the reasons for its findings and the reasons for requiring
registration.”
2
SCD288004).3 Elam was on formal probation in the first case when the
second and third cases were filed. Pursuant to a negotiated plea deal
resolving all three cases, he agreed to plead guilty in the second and third
cases, and to admit violating the terms of probation in the first case, in
exchange for a total custodial term of five years in state prison.
The sexual offender registration requirement that Elam challenges on
appeal was imposed in the third case, case number SCD288004. Elam was
charged in that case with a single count of unlawful sexual intercourse with a
minor more than three years younger. (§ 261.5, subd. (c).)4 In the written
plea agreement, Elam agreed to plead guilty to this charge in exchange for
the stipulated total prison term of five years imposed in all three cases. He
agreed to admit as a factual basis for the plea that he “[u]nlawfully engage[d]
3 In the first case, number SCD285168, Elam was convicted of willfully
violating a domestic violence protective order (§ 273.6, subd. (a)) and
maliciously damaging a vehicle (§ 594), based on an incident in which he
fought with an ex-girlfriend and smashed the windshield and side windows of
her car. On August 5, 2020, he was granted three years of formal probation
with the condition that he serve 365 days in prison, with credit for 321 days
served.
The second case, number SCD287627, was filed on October 15, 2020,
after Elam was caught robbing a bank and driving stolen vehicles. He was
charged with two counts of robbery (§ 211) and two counts of unlawfully
taking and driving a vehicle (Veh. Code, § 10851).
4 Section 261.5, subdivision (a), provides, “Unlawful sexual intercourse is
an act of sexual intercourse accomplished with a person who is not the spouse
of the perpetrator, if the person is a minor.” Under subdivision (c) of section
261.5, “Any person who engages in an act of unlawful sexual intercourse with
a minor who is more than three years younger than the perpetrator is guilty
of either a misdemeanor or a felony, and shall be punished by imprisonment
in a county jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170.”
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in an act of sexual intercourse with Jane Doe, a minor who was not the
spouse of the defendant, and who was more than three years younger than
the defendant.” The plea agreement stated that registration as a sex offender
was a possible consequence of the plea.
At the change of plea hearing, the prosecutor and defense counsel
advised the trial court that in connection with the third case, they would “be
arguing at sentencing regarding any discretionary registration.” The court
accepted Elam’s guilty pleas upon finding they were knowingly and
voluntarily made, revoked his probation, and set the matter for sentencing.
II.
Probation Report in Case Number SCD288004
A probation report was prepared for sentencing. Based on Elam’s date
of birth set forth in the report, he was 27 years old when he committed the
charged offense.
A. Facts of Charged Offense
The probation report gave a detailed summary of the facts of the
offense based on the associated police report.
On August 6, 2020, Jane Doe, a 16-year-old resident of the Polinsky
Children’s Center (Polinsky), walked away from the center without
permission. Her male friend, “Ron,” paid for her Uber ride to a park, where
they “drank alcohol and ‘chilled.’ ” At around 1:00 in the morning, Jane and
Ron got into an argument, and Ron left her at a fast-food restaurant. Jane
got a ride from a stranger, who dropped her off near a Mexican restaurant in
an unknown part of town.
Jane saw a vehicle in the drive-through of the Mexican restaurant. She
approached it and asked the male driver if she could use his phone charger.
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He told her no, but after she started crying, he told her to get in his car. He
said she could stay at his house and “he would keep her safe.”
He drove Jane to a residential neighborhood in an unknown location.
Jane and the male entered a room behind a main house. The male told Jane
to take off her clothes. When she refused, he put both of his hands around
her throat, held her down on the bed, and forcibly raped her. When he got up
to use the bathroom, Jane escaped out the front door and ran down the street
looking for help. The male got in his vehicle and followed her.
Jane waved down a passing car and told its male driver, later identified
as Elam, that she had just been raped and needed help. She asked Elam to
drive her back to Polinsky, and he agreed. When Jane told Elam she was
lost, he replied, “ ‘Good, you don’t know where you are. You’re my bitch now.
We are going to make some money now.’ ” He told Jane he was going to
purchase a phone for her from a mobile phone store.
As they were driving, Elam offered Jane $40 to have sex with him. She
told him she did not want to have sex because she had just been raped and
she was still in pain. They drove around for a while and then stopped in a
parking structure in an unknown location. Jane reported that “she ended up
having sexual intercourse with [Elam],” adding that “she agreed because [he]
asked nicely.”
The probation report stated: “The two [then] continued driving until
[Elam] stopped to purchase a phone. While they were stopped, [Elam] told
[Jane] multiple times to ‘suck my dick,’ to which [she] repeatedly told him no.
As [Elam] entered the phone store, [Jane] was able to enter a [convenience]
store, where she approached an unknown female and told the female she was
in a bad situation, she needed help and to call the police. [Jane] remained in
the store until police arrived.”
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Jane underwent a SART [Sexual Assault Response Team] exam, and
DNA evidence was collected. According to the probation report, “[m]ale DNA
located in numerous locations of [Jane’s] SART kit matched [Elam].” Jane
complained of pain in her vaginal area.
B. Elam’s Criminal History
The probation report summarized Elam’s history of prior convictions,
which included felony convictions for transportation of undocumented
persons, identity theft, escape from a Residential Re-entry/ Work Furlough
Center, and auto theft, and misdemeanor convictions for fighting in public,
possession of drug paraphernalia, and evading a peace officer.
The report also summarized incidents when Elam had contact with the
police but was not convicted of an offense. During an October 2012
prostitution sting operation at a hotel, Elam was observed interacting with a
female prostitute who was there to meet an undercover officer. Elam
admitted to being a pimp since age 14. He also admitted knowing about the
prostitution, although he denied any involvement in the woman’s
prostitution. He said he was acting as her lookout because she was his baby’s
mother and he did not want anything bad to happen to her. Charges were
filed, but were reportedly dismissed “for discretionary reasons.”
C. SARATSO (State Authorized Risk Assessment Tool for Sex Offenders)
Results
Elam’s risk of sexual offense recidivism was determined by scoring him
on the Static-99R, described by the probation report as “an actuarial measure
of risk for sexual offense recidivism.” Elam’s score was a “6,” placing him in
the highest risk category of a “[w]ell above average risk” of reoffending. The
probation report recommended requiring Elam to register as a sex offender.
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D. Sentencing Hearing and Judgment
At the sentencing hearing, the prosecutor urged the trial court to order
Elam to register as a sex offender based on probation’s recommendation and
“the facts in this case.”
Defense counsel opposed the request. He argued the facts in the
probation report did not demonstrate that Elam committed the offense as the
result of sexual compulsion or sexual gratification, as required to impose
discretionary sex offender registration under section 290.006. Defense
counsel claimed the facts merely indicated “he offered her money for sex” and
“there was no indication that this was for any kind of compulsion[.]” The
trial court responded: “She said she had just been raped by someone else.”
Defense counsel acknowledged that “[y]es, unfortunately, she was
raped,” but argued Elam had “courted” the victim and offered to “drive her
around” and “buy her a phone,” and that “[t]his wasn’t a situation where he
would have a compulsion to take advantage of an underage girl.” The trial
court responded, “What do you think he meant by, ‘You’re my bitch now’?”
Defense counsel asserted that, “to be completely honest,” it “look[ed]
like a situation in which he might have been inviting her, to work for her [sic]
by going to buy her a phone.” The court agreed. Defense counsel argued that
even so, Elam was “not trolling around looking for underage women,” that he
merely offered Jane a ride and did not show any pre-disposition, sexual
compulsion or gratification.
At the conclusion of counsel’s argument, the trial court ordered Elam to
register as a sex offender. The court stated: “The Court does note it has
discretion to order or not order registration under [section] 290. Based upon
the Court’s review of the facts of this case, as well as the contents of the
probation report, the Court believes that on [section] 290, registration is
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appropriate and . . . is requiring Mr. Elam to register under Penal Code
[section] 290.”
Later in the sentencing hearing, defense counsel asked the court to
“state for the record the reasons [for] the registration requirement[.]” The
trial court responded, “As I indicated before, . . . the Court referenced all of
the facts contained in the pre-sentence report related to this crime, the
incident crime, as well as your client’s background in coming to the
conclusion that [section] 290 registration is appropriate.”
After the hearing, the trial court entered an abstract of judgment that
included the sex offender registration requirement. Elam timely appealed.
DISCUSSION
Elam contends the trial court abused its discretion by requiring him to
register as a sex offender, because the record failed to support the conclusion
he committed the offense of sexual intercourse with a minor for sexual
gratification or as the result of sexual compulsion. In a supplemental brief,
he further contends the court failed to make the required findings of sexual
gratification or sexual compulsion. No abuse of discretion appears on this
record.
I.
Discretionary Sex Offender Registration Under Section 290.006
The purposes of California’s Sex Offender Registration Act (Act),
sections 290 to 290.024, are to assure that persons convicted of the
enumerated crimes “ ‘ “ ‘shall be readily available for police surveillance at all
times because the Legislature deemed them likely to commit similar offenses
in the future’ ” ’ ” and “to notify members of the public of the existence and
location of sex offenders so they can take protective measures.” (People v.
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Hofsheier (2006) 37 Cal.4th 1185, 1196 (Hofsheier), overruled on other
grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888.)
The Act contains mandatory and discretionary provisions. (People v.
Mosley (2015) 60 Cal.4th 1044, 1048.) Section 290 requires anyone convicted
of specified offenses to register as a sex offender. (§ 290, subd. (b).) Section
261.5 is not one of the offenses listed in section 290. (See § 290, subd. (c).)
Under section 290.006, a trial court has discretion to order a defendant
convicted of an unlisted offense to register as a sex offender. The relevant
part of the statute states: “Any person ordered by any court to register
pursuant to the act, who is not required to register pursuant to Section 290,
shall so register, if the court finds at the time of conviction or sentencing that
the person committed the offense as a result of sexual compulsion or for
purposes of sexual gratification. The court shall state on the record the
reasons for its findings and the reasons for requiring registration.”
(§ 290.006, subd. (a), italics added.)
In Hofsheier, the California Supreme Court observed that “to
implement the requirements of section 290, [former] subdivision (a)(2)(E)
[now § 290.006, subd. (a)], 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 lifetime
registration as a sex offender.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) “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.” (Ibid.)
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II.
Substantial Evidence Supports the Conclusion Elam Committed the Offense of
Sexual Intercourse with a Minor for Purposes of Sexual Gratification
We first consider Elam’s contention that there was insufficient record
support for the conclusion he committed the crime of sexual intercourse with
a minor “as a result of sexual compulsion or for purposes of sexual
gratification.” (§ 290.006, subd. (a).) Elam’s challenge requires us to examine
the record to determine whether it contains substantial evidence to support
either of these conclusions. (See People v. Coleman (1989) 48 Cal.3d 112, 162;
People v. Brents (2012) 53 Cal.4th 599, 618.) Under this standard of review,
we “ ‘presume the existence of every fact the trial court could reasonably
deduce from the evidence.’ ” (People v. Carter (2019) 34 Cal.App.5th 831, 841,
quoting People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Doing so, we
conclude that substantial evidence supports the court’s conclusion that Elam
committed the offense of sexual intercourse with a minor for purposes of
sexual gratification.
The parties agree the trial court relied on the probation report in
deciding to require Elam to register as a sex offender. Elam contends the
probation report did not support a finding that he had sexual intercourse
with Jane for purposes of sexual gratification. He claims his offer to buy her
a phone, and his statements “[y]ou are my bitch now” and “[w]e are going to
make some money now,” showed his “only” intent was “to exert control over
[Jane]” and “make a quick dollar.”
We disagree with Elam’s characterization of the record, which is
slanted and ignores facts unfavorable to his position. Elam’s argument
amounts to the assertion he was “only” trying to enlist Jane as an underaged
prostitute. Elam ignores the rather obvious fact that he did not limit himself
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to roping Jane into having sex with others. He also offered to pay her $40 to
have sex with him. He did not stand to make money from this transaction.
As the People point out, one can reasonably infer that the decision to have
sexual intercourse is motivated by a desire for sexual gratification. We
additionally observe that Elam’s genetic material was discovered in multiple
samples from Jane’s rape kit. The trial court could reasonably infer from
these facts that Elam had sexual intercourse with Jane “for purposes of
sexual gratification.” (§ 290.006, subd. (a).)
Having determined substantial evidence supports the conclusion Elam
committed the offense of sexual intercourse with a minor for sexual
gratification, we need not and do not address whether there was also
sufficient evidence he committed the offense as the result of a sexual
compulsion.
III.
The Trial Court Did Not Fail to Make the Findings Required
by Section 290.006
Elam contends the trial court violated section 290.006 when ordering
discretionary sex offender registration because it purportedly failed to find
that he committed the offense of sexual intercourse with a minor for purposes
of sexual gratification or as a result of sexual compulsion. We disagree, for
several reasons.
First, Elam’s argument rests on the assumption that the trial court
could only comply with the statute by making the required findings explicitly.
Not so. Although section 290.006, subdivision (a), requires the findings of
sexual gratification or sexual compulsion to be made, it does not specify that
they must be stated on the record. Rather, the statute requires only that the
court “state on the record the reasons for its findings and the reasons for
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requiring registration.” (§ 290.006, subd. (a).) A factfinder makes a
particular finding because it concludes the finding has sufficient evidentiary
support. While a court may naturally, and ordinarily, state the findings
themselves when articulating its reasons for those findings, the statute does
not mandate that it do so.
Elam also cites dicta from Hofsheier, but it does not support a different
result. In Hofsheier, our high court stated that when ordering discretionary
sex offender registration, the trial court “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.” (Hofsheier, supra, 37
Cal.4th at p. 1197.) This quote simply tracks the language of the statute, and
specifies only that the trial court must state the reasons for its findings,
without indicating that the findings themselves must be stated on the record.
In the absence of a legislative or judicial mandate that the findings
required by section 290.006, subdivision (a), must be made expressly, we
conclude the court complied with the statutory preconditions for discretionary
registration because it made the required findings impliedly. People v. Clair
(1992) 2 Cal.4th 629 (Clair) is the controlling authority on this point. In
Clair, the California Supreme Court addressed a contention that the
defendant’s serious felony enhancement had to be set aside because the trial
court failed to make a finding on the underlying prior conviction allegation.
(Id. at p. 691, fn. 17.) The Supreme Court disagreed. The defendant
stipulated that in deciding the issue, the trial court could consider the
prosecution’s evidence, including certified copies of the conviction. (Ibid.)
The question of whether the prior conviction allegation was true was
subsequently argued to the court. The trial court did not render an express
finding, but at sentencing it imposed the relevant sentencing enhancement.
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(Ibid.) The Court held: “At sentencing, the court impliedly--but sufficiently--
rendered a finding of true as to the allegation when it imposed an
enhancement expressly for the underlying prior conviction. Contrary to
defendant’s claim, there is no failure of proof. Neither is there any reason to
vacate the enhancement--and less reason still to disturb the penalty of
death.” (Ibid.)
In People v. Chambers (2002) 104 Cal.App.4th 1047 (Chambers), the
Second District, following Clair, reached a similar result. In Chambers, the
trial court imposed a prison term based on a firearm-use enhancement
without expressly finding that the firearm use allegation was true. (Id. at
p. 1050.) The Court of Appeal disagreed with the defendant’s contention that
the trial court’s failure to make an express finding operated as a finding the
special allegation was not true. It observed that the trial court’s “oral
pronouncement of judgment ‘speaks’ to impliedly affirm the truth of the use
of a firearm allegation.” (Ibid.) Relying on Clair, it held that “ ‘[a]t
sentencing, the trial court impliedly--but sufficiently--rendered a finding of
true as to the allegation when it imposed an enhancement expressly for the
underlying prior conviction.’ ” (Chambers, at p. 1051.)
Here, as in Clair and Chambers, the record of the sentencing hearing
supports the conclusion the trial court made the requisite findings. The court
debated with defense counsel whether the facts in the probation report
supported the conclusion Elam committed the offense for reasons of sexual
gratification or sexual compulsion. At more than one juncture during the
hearing it disagreed with defense counsel and offered facts that refuted
defense counsel’s assertions. It was plain from these exchanges the trial
court was readily familiar with the facts of the offense, and that the court
13
viewed the facts as supporting the conclusion opposite to the one advocated
by defense counsel.
The court went on to rule: “Based upon the Court’s review of the facts
of this case, as well as the contents of the probation report, the Court believes
that . . . registration is appropriate and . . . is requiring Mr. Elam to register
under Penal Code [section] 290.” From this ruling, particularly given the
lengthy exchange with defense counsel that preceded it, it was apparent the
court had concluded, albeit impliedly, that Elam’s offense conduct met the
factual prerequisites for discretionary sex offender registration. In the words
of Clair, though the court did not state its findings explicitly, it nevertheless
“impliedly--but sufficiently” found Elam’s offense conduct satisfied the factual
prerequisites for discretionary sex offender registration. (Clair, supra, 2
Cal.4th at p. 691, fn. 17.) Accordingly, we reject Elam’s contention that the
trial court failed to make the findings required by section 290.006,
subdivision (a).5
5 In his reply brief on appeal, Elam asserts the trial court not only “failed
to make the necessary findings as to sexual compulsion and sexual
gratification” but also “failed to state the reasons for those findings.” He does
not develop the point further. He includes the same, perfunctory and
undeveloped assertion in his supplemental brief. Elam’s failure to present a
developed argument on this point, under a separate heading, forfeits the
issue. (People v. Aguayo (2019) 31 Cal.App.5th 758, 768 [failure to present a
sufficiently developed argument supported with citations to legal authority
results in forfeiture of issue on appeal]; Cal. Rules of Court, rule
8.883(a)(1)(A) [appellate briefs must state each point under a separate
heading].) Even if not forfeited, the argument lacks merit. The trial court
stated the reasons for its findings both in the course of responding to defense
counsel’s assertions that the offense conduct did not reveal a sexual
compulsion or sexual gratification, and later, when it stated, “the facts of this
case, as well as the contents of the probation report,” made registration
appropriate. Although the court appeared to refer back to this quoted
statement later, when defense counsel asked it to give its reasons for
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Additional reasons exist for rejecting Elam’s assertion of error,
including that he failed to raise this issue in the trial court. Had he done so,
the trial court could have easily satisfied his concern by stating its findings
on the record then and there. Elam’s failure to raise the issue during the
sentencing hearing forfeits the matter on appeal. (People v. Scott (1994) 9
Cal.4th 331, 353 [forfeiture doctrine applies “to claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing
choices,” including cases where the court “failed to state any reasons”].)
Also, Elam makes no effort to demonstrate prejudice from the asserted
error. (See People v. Watson (1956) 46 Cal.2d 818, 836.) We have already
concluded the record contained sufficient facts supporting the conclusion
Elam’s offense conduct brought him within the purview of the statute. To
remand the matter to require the trial court to set out its findings would
place form over substance. (See Civ. Code, § 3528 [“The law respects form
less than substance.”].)
requiring registration, the court was not prohibited from relying on the same
or similar reasons for its findings and for ordering registration. We disagree
that the trial court failed to comply with section 290.006 by stating the
reasons for its findings on the record.
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DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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