People v. Salazar CA6

Opinion

Filed 9/14/26 P. v. Salazar CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052318 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2202308)

v.

ALFREDO RUIZ SALAZAR,

Defendant and Appellant.

Pursuant to a negotiated plea disposition, defendant Alfredo Ruiz Salazar pleaded no contest to felony false imprisonment and misdemeanor battery to resolve charges stemming from allegations that he committed two separate sexual acts against his then-14-year-old daughter S.D. At sentencing, the trial court exercised its discretion under Penal Code section 290.0061 to order Salazar to register as a sex offender. Salazar requests that we remand the matter for a new sex offender registration hearing, arguing that the trial court abused its discretion in ordering him to register as a sex offender because it did not adequately comply with the statutory requirements of section 290.006. For the reasons we explain below, we will affirm the judgment.

1 Unspecified statutory references are to the Penal Code. I. FACTS AND PROCEDURAL BACKGROUND A. Preliminary Hearing S.D. testified that her father, Salazar, committed two separate inappropriate sexual acts against her when she was 14 years old. S.D. stated that the first incident occurred in 2008. S.D. recalled that Salazar entered her room when her siblings were sleeping, and, without saying anything, crawled under her blanket, pulled down her pants and underwear, and opened her legs. S.D. testified that Salazar then laid on top of her and penetrated her vagina with his penis while firmly covering her mouth with his hand, leaving her unable to move or alert anyone. S.D. stated that “when [the assault] was over, [Salazar] just rolled back on his left side, laid on the bed for a few minutes, and then got up and walked out of the room.” Once Salazar left, S.D. hit herself in the stomach multiple times to prevent an unwanted pregnancy and realized that Salazar had taken her virginity when she found blood in her underwear. After S.D. finished recounting the first sexual assault incident, the trial court noted that she was “visibly shaking.” The prosecutor similarly observed that S.D. was upset stating, “I can see you’re crying again.” S.D. testified that the second incident occurred in 2009, just before she turned 15 years old. As to that incident, S.D. stated that Salazar pulled her towards him, sat her on his lap without her consent, and told her he was going to “show [her] how to kiss for when [she] had a boyfriend.” Salazar then used his hand to pull S.D.’s face towards him and kissed her on the lips. S.D. recalled feeling “disgusted,” “shaky,” and “anxious” during that incident. S.D. did not tell anyone about either incident because she was scared her family would not believe her. S.D. also recalled “[Salazar] making comments about not saying anything,[sic] that [she] wouldn’t want to hurt [her] mom’s feelings.” As an adult, S.D. disclosed the two incidents to her therapist which led to a police investigation.

2 B. Charges and Convictions The Santa Clara County District Attorney’s Office filed an information charging Salazar with forcible rape (§ 261, subd. (a)(2)) and lewd and lascivious act with a child 14 or 15 years of age by a person at least 10 years older (§ 288, subd. (c)(1)). The information further alleged aggravating circumstances as to each count, that Salazar took advantage of a position of trust and confidence to commit the offenses (§ 1170, subd. (b); Cal. Rules of Court, rule 4.421(a)(11)) and that he committed the offenses for the purposes of sexual compulsion and sexual gratification (§§ 296, subd. (a), 290.001). Pursuant to a negotiated plea agreement, Salazar pleaded no contest to misdemeanor battery (§ 243, subd. (e)(1)) and false imprisonment (§ 236) with an aggravating circumstance that he took advantage of a position of trust to commit the offense. Though these offenses did not subject Salazar to mandatory sex offender registration, the parties mutually agreed that the trial court would decide at sentencing whether discretionary sex offender registration was warranted. At the plea hearing, the trial court agreed to assess the sex offender registration issue at the sentencing hearing. The trial court also informed Salazar that it might rely on the preliminary hearing transcript, the victim’s statement, and other sources of information to help inform its decision on whether to impose discretionary sex offender registration pursuant to section 290.006. Salazar consented. The trial court accepted Salazar’s pleas and set a date for sentencing. C. Sentencing Hearing Before the sentencing hearing, the Probation Department filed a probation report. Relevant here, the probation report stated that Salazar’s criminal history consisted of 13 misdemeanor convictions but no felonies. The probation report also included a Static-99R evaluation, which it described as an “actuarial risk assessment tool that measures the risk of sexual offense recidivism.” The probation department’s Static-99R 3 assessment concluded that Salazar posed a below average risk2 of “being charged or convicted of another sexual offense within five years after he is released on probation.” The defense obtained an independent evaluation of Salazar’s psychological functioning from Carolyn Murphy, Ph.D., a clinical psychologist, to “help address whether [sex offender] registration [was] necessary for community safety.” Dr. Murphy conducted a Static-99R evaluation and determined that Salazar posed an “average risk” of re-offending, “which is associated with low risk for recidivism.” Dr. Murphy ultimately opined that Salazar did not “pose an identifiable risk of physical harm to the victim” and that “community safety would [not] be improved by . . . requiring Salazar” to register as a sex offender because he was “clearly not . . . considered a high-risk offender” given his recidivism risk was “quite low.” At defense counsel’s request, Dr. Murphy updated her original report to include the kissing allegation and concluded that the “additional consideration of kissing d[id] not alter the risk assessment, diagnostic considerations, or ultimate conclusions” in her evaluation report. The defense submitted a memorandum opposing sex offender registration, arguing that Salazar posed a low risk of recidivism and that registration would be detrimental as it would affect Salazar’s ability to secure housing for himself and his family. The People’s sentencing brief maintained that discretionary sex offender registration was appropriate because Salazar committed two inappropriate sexual acts against S.D. through sexual compulsion and for purposes of sexual gratification. (§ 290.006, subd. (a).) At the sentencing hearing, the prosecutor read into the record S.D.’s victim impact statement where she recounted the negative effects that the two incidents had on her life. Defense counsel acknowledged the alleged behavior was “absolutely horrific” but stated 2 The Static-99R has five risk level categories: Level I (Very Low Risk) for scores of -3 to -2; Level II (Below Average Risk) for scores of -1 to 0; Level III (Average Risk) for scores of 1 to 3; Level IVa (Above Average Risk) for scores of 4 to 5; and Level IVb (Well Above Average Risk) for scores of 6 or higher. 4 that “Salazar has denied those allegations from the beginning.” Defense counsel also noted that, to the extent it factored into the trial court’s analysis, Salazar was not S.D.’s biological father.3 After the parties submitted the matter, the trial court stated that it considered several sources of information to determine whether imposition of discretionary sex offender registration was appropriate in this case, including the parties’ extensive briefing, Salazar’s criminal record, S.D.’s victim impact statement, and the defense’s supplemental evaluation. The trial court acknowledged the defense had concerns about S.D.’s veracity given her admission at the preliminary hearing that she had filed a false report at Salazar’s behest, accusing the family’s then landlord of sexual assault to avoid eviction. However, the trial court determined it did “not doubt[] [S.D.’s] statements and her recitation of what happened to her many years ago.” Turning to the analysis, the trial court confirmed it had considered Dr. Murphy’s report but stated it “was concerned by her dismissive treatment of the [kissing incident], and that . . . cause[d] [it] to call into question her overall assessment of the situation.” The trial court found that “Salazar [did] not present a risk to the victim,” noting that the relevant offenses occurred “many years ago” and that the two Static-99R reports determined that Salazar presented a low to average risk of re-offending. With respect to the nature of the crimes and Salazar’s conduct during the sexual assault incidents, the trial court stated: “A rape of any kind is a violent act in and of itself, but here, in this situation, [Salazar] also acted forcefully in [the first incident by] prying open [S.D.’s] legs 3 It is unclear from the record whether Salazar was S.D.’s biological father or her stepfather. S.D. testified that Salazar was her biological father and referred to Salazar as her “father” throughout the preliminary hearing. During an interview with a defense investigator, S.D.’s brother asserted that he and S.D. “ha[d] different dads.” Dr. Murphy’s report states that Salazar has four children with his current partner, “three biological children and one stepchild”—presumably S.D.—who “he raised as his own and consider[ed] to be his own child[].” The record does not indicate whether the issue of paternity was resolved. 5 and gripping her mouth so she could not scream.” The trial court also determined that Salazar acted forcibly during the second incident because he “forc[ed] [S.D.] onto his lap[,] . . . telling her that he was going to teach her how to kiss her boyfriend.” The trial court concluded that “given these forceful, violent, sexual acts of a father . . . against . . . [his 14-year-old] daughter, it is clear that [Salazar] committed the acts as a result of sexual compulsion and for his own gratification.” After “weighing all of the circumstances and all of the considerations that [it was] able to take into account,” the trial court found that sex offender registration was appropriate. The trial court therefore ordered Salazar to register “as a [t]ier [one] offender pursuant to . . . [s]ection 290.006.”4 The trial court then suspended imposition of sentence, granted probation with the condition that Salazar serve 364 days of county jail, deemed the sentenced served, and released Salazar from custody. Before concluding the hearing, the trial court asked the parties if there “was anything else that . . . need[ed] to [be] address[ed]” to which defense counsel responded, “No, Your Honor.” Salazar timely appealed the trial court’s sex offender registration order. II. DISCUSSION Salazar contends the trial court abused its discretion by ordering him to register as a sex offender because the trial court: (1) did not provide sufficient reasons for its finding that he forcibly committed the sexual acts against S.D. and (2) failed to adequately consider all the relevant factors for ordering discretionary sex offender registration (§ 290.006). We conclude that Salazar did not preserve his section 290.006 claim for appeal, and in any event, remand for a new hearing on the matter is not warranted because the trial court properly exercised its discretion in ordering Salazar to register as a sex offender.

4 A tier one offender is subject to registration for a minimum of 10 years, a tier two offender is subject to registration for a minimum of 20 years, and a tier three offender is subject to registration for life. (§ 290, subd. (d).) 6 A. Legal Principles The California Sex Offender Registration Act (§ 290 et seq.) requires persons convicted of certain specified sex offenses while residing, attending school, or working in California, to register as sex offenders. (§ 290, subds. (b), (c).) Sex offender registration is designed to prevent recidivism, ensure sex offenders “ ‘ “ ‘ shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future’ ” ’ ” and “notify members of the public of the existence and location of sex offenders so they can take protective measures.” (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 (Johnson).) Section 290 contains mandatory and discretionary provisions. (People v. Mosley (2015) 60 Cal.4th 1044, 1048.) Section 290, subdivision (b) mandates lifetime registration for anyone convicted of an offense listed in subdivision (c) of the statute. However, section 290.006, subdivision (a) permits the trial court to impose discretionary sex offender registration if: “[T]he 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” and “state[s] on the record the reasons for its findings and the reasons for requiring registration.” (§ 290, subd. (a); see Mosley, at p. 1048 [when a “conviction is for an offense other than those automatically requiring registration, the [trial] 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 re[-]offense”].) “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, 7 37 Cal.4th at p. 1197.) We review a trial court’s order imposing discretionary registration for abuse of discretion. (People v. Eastman (2018) 26 Cal.App.5th 638, 648-650.) “[A] trial court does not abuse its 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, 377.) B. Forfeiture Preliminarily, we address the Attorney General’s contention that Salazar forfeited his section 290.006 claim by failing to object in the trial court on the same grounds asserted on appeal. We agree. A defendant cannot raise for the first time on appeal, “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which . . . the court purportedly erred because it . . . failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 352-353 (Scott).) The rationale behind the forfeiture rule is that such a failure “ ‘deprives the trial court of the opportunity’ to create a record and to ‘correct potential error in the first instance.’ [Citations.]” (People v. Romero and Self (2015) 62Cal.4th 1, 24.) “ ‘Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.’ [Citation.]” (Scott, at p. 355.) “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Scott, supra, 9 Cal.4th at p. 353.) The forfeiture rule applies so long as the defendant was afforded a meaningful opportunity to object. (Id. at p. 356.) “[A] meaningful opportunity to object means that the defendant [must] be given the opportunity to address the court on the matter of sentence and to 8 object to any sentence or condition thereof imposed by the court.” (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) In People v. Bautista (1998) 63 Cal.App.4th 865 (Bautista), the defendant appealed the trial court’s sex offender registration order on the ground that “the court failed to state reasons for requiring registration.” (Id. pp. 867-868.) The Bautista court concluded the defendant “waived” his claim on appeal by failing to object on the same grounds in the trial court. (Ibid.) The Court of Appeal reasoned that the trial court “clearly apprised [the defendant] before imposition of sentence that its reason for requiring registration would be that the offense was committed with the intent to commit rape.” (Id. at p. 871.) As such, the defendant was precluded from raising the alleged defect for the first time on appeal because he had “ample meaningful opportunity” to “object to the [trial] court’s failure to provide a more complete statement of reasons for its findings and for requiring registration.” (Id. at pp. 868, 871.) The Bautista court therefore affirmed the trial court’s sex offender registration order. (Id. at p. 871.) In this case, we conclude that Salazar forfeited his claim by failing to object.5 As in Bautista, here Salazar’s trial counsel “objected to the registration requirement, but did 5 Our Supreme Court recently noted: “The term ‘waiver’ has indeed been loosely used at times . . . to signify what is properly understood as a forfeiture. [Citations.] . . . ‘Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the “intentional relinquishment or abandonment of a known right.” ’ [Citations.] Although ‘the two terms on occasion have been used interchangeably’ [citation], ‘they are quite different’ [citation]. . . . ‘Waiver’ is not properly used to describe a circumstance other than when a party voluntarily relinquishes or abandons a known right. To dispel any possible lingering confusion, we stress once more that forfeiture ‘refers to a failure to object or to invoke a right.’ [Citation.] When a party does not raise an objection in the manner required, their failure to do so, without more, constitutes a forfeiture, not a waiver.’ [Citations.] We encourage courts and litigants to use precise terminology and avoid terms like ‘waiver’ . . . when discussing the potential consequence of failing to take timely action. . . .” (North American Title Co. v. Superior Court (2024) 17 Cal.5th 155, 177-178.) 9 not object to the [trial] court’s failure to provide a more complete statement of reasons for its findings and for requiring registration.” (Bautista, supra, 63 Cal.App.4th at p. 868.) Moreover, just like the defendant in Bautista, here, Salazar had a meaningful opportunity to object to the sex offender registration order in the trial court on the grounds he raises on appeal, but failed to do so. Indeed, after the trial court rendered its decision on the sex offender registration issue and before concluding the sentencing hearing, it provided the parties with an opportunity to address other matters by asking, “Now, anything else that we need to address this afternoon?” Salazar’s trial counsel did not raise any objections and instead responded, “No, your Honor.” Had Salazar raised a proper objection, these “[r]outine defects in the [trial]court’s statement of reasons [could have] easily [been] prevented and corrected. . . .” (Scott, supra, 9 Cal.4th at p. 353.) Therefore, Salazar is precluded from raising for the first time on appeal his challenges to the trial court’s sex offender registration order. Salazar argues that forfeiture does not apply here because he is raising a substantive claim as opposed to a procedural claim. We are not persuaded. “Whether there was an inquiry of the kind required by [a] statute is a procedural question.” (People v. Voit (2011) 200 Cal.App.4th 1353, 1369.) Whereas “[a] defendant who belatedly disputes the existence of evidence of [a finding or conviction] is making a substantive, not a procedural, claim.” (Id. at p. 1370.) Here, Salazar does not assert that there is insufficient evidence to support the trial court’s ultimate conclusion that discretionary sex offender registration was appropriate. Rather, Salazar challenges the procedure by which the trial court reached its ruling since he claims the trial court failed to follow the requirements of section 290.006. Consequently, Salazar requests that we examine the process by which the trial court determined that discretionary sex offender registration Here, Salazar failed to raise a timely objection the trial court’s statement of reasons. Thus, as our Supreme Court had made clear, “the correct term is ‘forfeiture’ rather than ‘waiver.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 1.) 10 was appropriate, not to engage in a substantive review of the trial court’s ruling. Thus, contrary to Salazar’s contention, he raises a procedural—not a substantive—claim. Accordingly, Salazar forfeited his section 290.006 claim by failing to object in the trial court. However, we will nonetheless address the merits of Salazar’s claim given the significance of the liberty interests involved. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”], citations omitted.) C. Abuse of Discretion A trial court may exercise its discretion to impose discretionary sex offender registration if it: (1) finds that the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification and states on the record reasons for its findings; and (2) states on the record its reasons for requiring sex offender registration. (§ 290.006, subd. (a).) “In order to make a discretionary determination as to whether or not to require registration [under section 290.006], the trial court logically should be able to consider all relevant information available to it at the time it makes its decision.” (People v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved on another ground in Johnson, supra, 60 Cal.4th at p. 888, disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th 330, 338-339, fn. 4.) If the trial court exercises its discretion under section 290.006 to impose a registration requirement, “[t]he person shall register as a tier one offender . . . unless the court finds the person should register as a tier two or tier three offender and states on the record the reasons for its finding.” (§ 290.006, subd. (b).) “ ‘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.’ [Citation.] A trial court abuses its discretion 11 when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard. [Citation.]” (People v. Thai (2023) 90 Cal.App.5th 427, 433.) We conclude that the trial court did not abuse its discretion by requiring Salazar to register as a sex offender because the trial court complied with the two requirements set forth in section 290.006, subdivision (a). In accord with the parties’ agreement, the trial court relied on several sources of information to guide its determination, including the preliminary hearing testimony, the parties’ extensive briefing, Salazar’s criminal record, S.D.’s victim impact statement, the Static-99R reports, and the defense’s supplemental evaluation. First, the trial court found that Salazar committed both alleged inappropriate sexual acts against S.D. through sexual compulsion and stated its reasons for its findings. At the preliminary hearing, S.D. testified that she was unable to move or call for help during the first incident because Salazar was lying on top of her and he had covered her mouth. S.D. also testified that she felt “shaky and anxious” when Salazar kissed her without her consent during the second incident. The trial court found credible S.D.’s “statements and her recitation” regarding the two sexual acts Salazar committed against her. (See People v. Maury (2003) 30 Cal.4th 342, 403 [“it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends”].) The trial court was also aware that Salazar admitted he took advantage of a position of trust in pleading no contest to false imprisonment to resolve the charges stemming from the sexual assault incidents. Thus, the trial court provided sufficient reasons to support its finding that Salazar committed the two inappropriate sexual acts against S.D. through sexual compulsion.6 6 Given our conclusion, we need not address whether the trial court stated sufficient reasons for its finding that Salazar committed the offenses for the purpose of sexual gratification. (See § 290.006, subd. (a) [to impose discretionary sex offender registration, the trial court must find that the defendant “committed the offense as a result of sexual compulsion or for purposes of sexual gratification”], italics added.) 12 Second, the trial court stated on the record its reasons for exercising its discretion to mandate sex offender registration. The trial court acknowledged that the sexual assault incidents occurred “many years ago,” that Salazar posed a low to average risk of re-offending, and did not currently “present a risk” to S.D. The record also indicates that the trial court implicitly determined Salazar had not been previously arrested for, or convicted of, a sexually motivated offense given Salazar had only been convicted of misdemeanor offenses and Dr. Murphy’s report stated that there were “no other reported victims.” Nevertheless, the trial court determined that Salazar committed “forceful” and “violent” sexual acts against his 14-year-old daughter, “biological or not,” and agreed with defense counsel’s assertion that the allegations against Salazar were “horrific.” The trial court also found that Salazar took advantage of the father-daughter relationship to commit the two incidents and that he “further inflicted fear by invoking [S.D.]’s relationship with her mother.” It is evident from the record that the trial court conducted an individualized assessment of the particular facts of this case and substantial evidence supports its findings of fact. Therefore, the trial court properly exercised its discretion in ordering Salazar to register as a sex offender under section 290.006, subdivision (a) because it stated on the record its reasons for: (1) finding that Salazar committed the two sexual acts against S.D. through sexual compulsion and (2) requiring Salazar to register as a sex offender. Accordingly, we affirm the trial court’s sex offender registration order. (See People v. Jordan (1986) 42 Cal.3d 308, 316 [a trial court’s discretionary ruling “must not be disturbed on appeal except on a showing that [it] exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice”].) III. DISPOSITION The judgment is affirmed.

13 _______________________________ Greenwood, P. J.

WE CONCUR:

______________________________________ Danner, J.

______________________________________ Bromberg, J.

H052318 People v. Salazar