gno.law

San Nicolas v. Harris

California Court of Appeal · D069769 · 2016-12-28 · Published · 7 Cal. App. 5th 41 · 212 Cal. Rptr. 3d 279 · 2016 Cal. App. LEXIS 1146

TONY TAITANO SAN NICOLAS, Plaintiff and Appellant, v. KAMALA D. HARRIS, as Attorney General, Etc., Defendant and Respondent

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. 37-2015-00018724-CU-WM-CTL
Trial judge
Randa Trapp
Outcome
affirmed — Affirmed.
Area
civil
Panel
Judith D. McConnell (author), Patricia D. Benke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:38Z · confidence high

The trial court denied San Nicolas's petition for writ of mandate, determining that his Washington state conviction for communicating with a minor for immoral purposes satisfied the least adjudicated elements test for two registrable California offenses. The Court of Appeal affirmed the judgment, holding that the elements of the Washington conviction encompassed the elements of California Penal Code sections 288.3(a) and 647.6(a)(1).

Ruling reviewedStandardThe courtThe model
Denial of petition for writ of mandate challenging sex offender registration based on Washington conviction
“We disagree and affirm the judgment.”
de novocorrectagree with court
The appellate court correctly applied the least adjudicated elements test, which is the appropriate standard when the factual record of the foreign conviction is limited. The court properly analyzed the statutory elements of the Washington offense against the California registrable offenses and correctly concluded that the Washington elements subsumed the California elements, particularly noting that the guilty plea waived the age defense, thereby establishing the necessary knowledge element.

Authorities

  • relied: In re Rodden (2010) 186 Cal.App.4th 24 — Establishes the least adjudicated elements test for determining if a foreign conviction requires registration in California when the factual record is limited.
  • relied: People v. Knoller (2007) 41 Cal.4th 139 — Supports the principle that an opinion is not authority for propositions not considered, used to distinguish the unpublished Crofoot decision.
  • relied: People v. Valenti (2016) 243 Cal.App.4th 1140 — Defines the elements of Penal Code section 647.6(a)(1), including the requirement of motivation by an unnatural or abnormal sexual interest.
  • relied: People v. Phillips (2010) 188 Cal.App.4th 1383 — Supports the element analysis for Penal Code section 647.6(a)(1).
  • relied: In re D.G. (2012) 208 Cal.App.4th 1562 — Establishes that there can be no normal sexual interest in a child, supporting the conclusion that the motivation element of section 647.6(a)(1) is encompassed by the Washington statute.

The appellate opinion: sound — The opinion is sound because it correctly applies the least adjudicated elements test to compare the statutory elements of the Washington conviction with the California registrable offenses. It effectively addresses the appellant's arguments regarding the knowledge element and the motivation element by relying on the waiver of defenses through the guilty plea and the inherent nature of sexual misconduct with minors.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The San Diego Superior Court denied San Nicolas's petition for writ of mandate seeking removal from the Department of Justice sex offender tracking program, finding that his Washington conviction for communicating with a minor for immoral purposes (RCW 9.68A.090) satisfied the least adjudicated elements test for two registrable California offenses, Penal Code sections 288.3(a) and 647.6(a)(1). The Court of Appeal affirmed, holding the Washington offense's 'sexual misconduct' purpose is encompassed by both California statutes and that San Nicolas's guilty plea forfeited Washington's reasonable-attempt-to-ascertain-age defense, thereby supplying the California knowledge/good-faith-belief elements.

Ruling reviewedStandardThe courtThe model
Application of the least adjudicated elements test (rather than a fact-based inquiry) to determine whether the Washington conviction is registrable under Penal Code section 290.005(a).
“Because the factual record of the Washington conviction is limited, the least adjudicated elements test governs whether the conviction requires registration under section 290.005(a).”
unclearcorrectagree with court
The opinion never articulates a standard of review, but the question is one of statutory comparison reviewed independently. Section 290.005(a) permits reliance on 'the elements of the convicted offense or facts admitted,' and with a limited record the elements-only approach from In re Rodden is the appropriate framework. Both parties accepted this framework.
The Washington 'sexual misconduct' purpose element matches the section 288.3(a) element of intent to commit an enumerated sexual offense.
“we cannot conceive of a sexual misconduct purpose that would be covered by RCW 9.68A.090 and not by section 288.3(a).”
unclearcorrectunsure
The court relied on Washington authority (McNallie, Jackman) describing the statute's scope and on the breadth of the section 288.3(a) enumerated list, and noted appellant identified no gap. The reasoning is largely a burden-shifting observation ('San Nicolas has not identified') rather than an affirmative demonstration that every Washington 'immoral purpose' maps onto an enumerated California offense (e.g., communication with intent to expose oneself, Pen. Code § 314, which is not enumerated in § 288.3). The result is defensible on the arguments presented but the analysis is thin.
Section 288.3(a)'s element that defendant knew or reasonably should have known the victim was a minor is satisfied because the guilty plea forfeited Washington's affirmative defense of a reasonable bona fide attempt to ascertain age.
“By pleading guilty to violating RCW 9.68A.090, San Nicolas gave up this defense, effectively adjudicating it against him. Thus, the least adjudicated elements of RCW 9.68A.090 in this particular case include San Nicolas's constructive knowledge the victim was a minor.”
unclearcorrect (law misapplied)disagree with court
This step is doubtful under the test the court itself adopted from In re Rodden, which asks whether the foreign offense's statutory elements necessarily include all elements of the California offense. An affirmative defense that the defendant must prove is not an element, and a guilty plea does not 'adjudicate' the defense's factual predicate. More importantly, the Washington defense is far narrower than California's knowledge element: it applies only if the defendant demanded documentary identification. A defendant who had no reason to believe the person was a minor but did not demand ID would still be guilty under RCW 9.68A.090 yet would lack constructive knowledge under section 288.3(a). The Washington element as the court itself stated it ('a person under the age of 18, or believed to be under the age of 18') contains no knowledge requirement in its first alternative. The court therefore imported an element that the least adjudicated elements of the Washington offense do not necessarily contain.
Section 647.6(a)(1)'s element of motivation by an unnatural or abnormal sexual interest in a child is encompassed by the Washington 'sexual misconduct' purpose element.
“Because there can be no normal sexual interest in a child (In re D.G. (2012) 208 Cal.App.4th 1562, 1571), the motivation element of section 647.6(a)(1) is encompassed within the motivation element of RCW 9.68A.090.”
unclearcorrectagree with court
In re D.G. supports the proposition that any sexual interest in a child is abnormal for purposes of section 647.6. A communication for the purpose of engaging in sexual misconduct with a minor is necessarily motivated by sexual interest in the minor, so this element comparison is sound. The court did not separately analyze the objective 'annoy or molest' element, but appellant did not contest it.
Section 647.6(a)(1)'s requirement that defendant lacked a good faith belief the child was at least 18 is satisfied by the same forfeited-defense reasoning applied to section 288.3(a).
“the least adjudicated elements of RCW 9.68A.090 in this particular case include San Nicolas's constructive knowledge the victim was a minor, which precludes him from having had a good faith belief the victim was at least 18 years old.”
unclearcorrect (law misapplied)disagree with court
This ruling depends entirely on the forfeited-defense reasoning criticized above. If the Washington offense does not necessarily include constructive knowledge of minority, it likewise does not necessarily negate a good faith belief in majority. A Washington defendant who honestly and reasonably believed the person was an adult but never demanded identification would be guilty in Washington yet have a complete defense under California law. The least adjudicated elements test is therefore not satisfied on this element for the same reason.

Authorities

  • relied: In re Rodden (2010) 186 Cal.App.4th 24 — When the factual record of a foreign conviction is limited, the least adjudicated elements test governs whether the conviction requires sex offender registration under section 290.005; the foreign offense must meet all statutory elements of a registrable California offense.
  • relied: People v. Knoller (2007) 41 Cal.4th 139 — An opinion is not authority for propositions not considered; used to decline reliance on Crofoot v. Harris.
  • relied: In re D.G. (2012) 208 Cal.App.4th 1562 — There can be no normal sexual interest in a child, so sexual motivation toward a child satisfies section 647.6's abnormal sexual interest element.
  • relied: People v. Valenti (2016) 243 Cal.App.4th 1140 — Elements of annoying or molesting a child under section 647.6(a)(1).
  • relied: People v. Phillips (2010) 188 Cal.App.4th 1383 — Elements of annoying or molesting a child under section 647.6(a)(1).
  • relied: State v. McNallie (1993) 120 Wn.2d 925 — RCW 9.68A.090 prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.
  • relied: State v. Jackman (2006) 156 Wn.2d 736 — RCW 9.68A.090 incorporates a relatively broad range of sexual conduct involving a minor.
  • relied: State v. Falco (1990) 59 Wn.App. 354 — Elements of communicating with a minor for immoral purposes under RCW 9.68A.090.
  • relied: State v. Aljutily (2009) 149 Wn.App. 286 — Elements of communicating with a minor for immoral purposes under RCW 9.68A.090.

The appellate opinion: questionable — The opinion correctly identifies the least adjudicated elements framework and reasonably resolves the sexual-purpose and motivation comparisons, but its key move on the knowledge element treats a waived, narrowly drawn Washington affirmative defense (requiring a demand for documentary ID) as if it established the broader California mens rea of constructive knowledge, which the Washington elements as the court itself recited them do not require. Because both registrable offenses depend on that reasoning, the result rests on a questionable application of the court's own elements-based test, even though the outcome may be defensible under a facts-admitted approach the court did not use.

How this analysis was made · dispute it

Opinion — McConnell

Filed 12/28/16 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TONY TAITANO SAN NICOLAS, D069769

Plaintiff and Appellant, v. (Super. Ct. No. 37-2015-00018724- CU-WM-CTL) KAMALA D. HARRIS, as Attorney General, etc., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.

Randy Mize, Chief Deputy Primary Public Defender and Frank J. Barone, Deputy Public Defender, for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland Assistant Attorney General, A. Natasha Cortina and Seth M.

Friedman, Deputy Attorneys General, for Defendant and Respondent. I

INTRODUCTION

Tony Taitano San Nicolas appeals from a judgment denying his petition for writ of mandate challenging his placement in the California Department of Justice's sex offender tracking program. He contends the court erroneously determined his Washington state conviction for communicating with a minor for immoral purposes qualified under the least adjudicated elements test as a registrable offense in California. We disagree and affirm the judgment.

II

BACKGROUND

San Nicolas pleaded guilty to communicating with a minor for immoral purposes, a violation of Revised Code of Washington section 9.68A.090 (RCW 9.68A.090)

(Washington conviction). The California Attorney General assessed the Washington conviction, determined the conviction required San Nicolas to register as a sex offender, and enrolled him in the California Department of Justice's sex offender tracking program.

San Nicolas petitioned the superior court for a writ of mandate directing the Attorney General to remove him from the tracking program. He asserted he is not required to register as a sex offender in California because the offense underlying his Washington conviction does not include all of the elements of a registrable offense in California as required by Penal Code section 290.005, subdivision (a) (section 290.005(a)).

2 After considering the parties briefing and arguments, the court denied the petition.

The court found the Washington conviction satisfied the least adjudicated elements test for two registrable California offenses: contacting a minor with intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a) (section 288.3(a)) and annoying or molesting a child under age 18 (Pen. Code, § 647.6, subd. (a)(1) (section 647.6(a)(1)).

III

DISCUSSION

A

Section 290.005(a) requires sex offender registration for "any person who … has been … convicted in any other court, including any state … court, of any offense that, if committed or attempted in this state, based on the elements of the convicted offense or facts admitted by the person or found true by the trier of fact … would have been punishable as one or more of the offenses described in subdivision (c) of Section 290 …."

These offenses include violations of sections 288.3 and 647.6. (Pen. Code, § 290, subd. (c).)

Because the factual record of the Washington conviction is limited, the least adjudicated elements test governs whether the conviction requires registration under section 290.005(a). (See In re Rodden (2010) 186 Cal.App.4th 24, 39, superseded on another point by Stats. 2011, ch. 362, §§ 1–2.) Under this test, the Washington conviction is registrable if the underlying offense meets all of the statutory elements of a registrable California offense. (Id. at p. 36.)

3 B When the Washington conviction occurred, RCW 9.68A.090 provided, with exceptions not relevant here: "A person who communicates with a minor for immoral purposes is guilty of a gross misdemeanor." To establish a violation of RCW 9.68A.090, a prosecutor must prove a defendant: (1) communicated through words or conduct, (2)

with a person under the age of 18, or believed to be under the age of 18, (3) for purposes of engaging in sexual misconduct. (See State v. Falco (1990) 59 Wn.App. 354, 357–358 [796 P.2d 796]; State v. Aljutily (2009) 149 Wn.App. 286, 296 [202 P.3d 1004]; see also Doe v. State (2015) 158 Idaho 778, 783 [352 P.3d 500].)

The Attorney General contends these elements, as adjudicated in the Washington conviction, also constitute violations of section 288.3(a) and section 647.6(a)(1). We agree.1 1 Although the Attorney General relies in part on the decision in Crofoot v. Harris (2015) 239 Cal.App.4th 1125 (Crofoot), we do not find the decision helpful to our resolution of this appeal. The court in Crofoot concluded "[the appellant] is required to register as a sex offender in California based upon his Washington conviction of communicating with a child for 'immoral purposes of a sexual nature' (see Wn. Rev. Code § 9.68A.090)." (Crofoot, supra, at p. 1127.) However, the court did not publish the portion of its decision analyzing this point. In addition, unlike here, the appellant in Crofoot admitted specific facts related to his Washington conviction, making it unlikely the court had to utilize the least adjudicated elements test to reach its decision. (Id. at 1127-1128.) " ' "It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered." ' " (People v. Knoller (2007) 41 Cal.4th 139, 154–155.)

4 C Section 288.3(a) prohibits contact or communication with, or attempted contact or communication with, a minor, or a person who reasonably should be known to be a minor, with the intent to commit an enumerated sexual offense involving the minor, including rape, sodomy, lewd or lascivious acts, oral copulation, forcible sexual penetration, or distribution, possession, or creation of child pornography.2 To establish a violation of this statute, a prosecutor must prove a defendant (1) directly or indirectly communicated with or attempted to communicate with a person, (2) with the intent to commit an enumerated offense involving the person, and (3) knew or reasonably should have known the person was under the age of 18. (CALCRIM No. 1124.)

San Nicolas contends the least adjudicated elements test is not met as to this offense because RCW 9.68A.090 requires a communication for purposes of engaging in sexual misconduct and section 288.3(a) requires a communication for purposes of committing an enumerated sexual offense. However, the collection of enumerated offenses in section 288.3(a) covers a full range of sexual misconduct involving minors and San Nicolas has not identified a sexual misconduct purpose that would be covered by RCW 9.68A.090 and not by section 288.3(a). Indeed, given RCW 9.68A.090's intent and 2 Section 288.3(a) specifically provides: "Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense." 5 breadth, we cannot conceive of a sexual misconduct purpose that would be covered by RCW 9.68A.090 and not by section 288.3(a). (See State v. McNallie (1993) 120 Wn.2d 925, 933 [846 P.2d 1358] [RCW 9.68A.090 "prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct"]; State v. Jackman (2006) 156 Wn.2d 736, 748 [132 P.3d 136] [RCW 9.68A.090 "incorporates within its scope a relatively broad range of sexual conduct involving a minor"].)3 San Nicolas further contends the least adjudicated elements test is not met as to section 288.3(a) because section 288.3(a) requires the defendant to have actual or constructive knowledge the victim was under the age of 18 and RCW 9.68A.090 has no such knowledge element. Nevertheless, in a prosecution under RCW 9.68A.090, "[i]t is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense, the defendant made a reasonable bona fide attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper and did not rely solely on the oral allegations or apparent age of the minor." (Wn. Rev. Code 3 On this point at oral argument, San Nicolas's counsel directed us for the first time to State v. Wissing (1992) 66 Wn.App. 745 [833 P.2d 424]. However, this case does not aid our review. The case held RCW 9.68A.090 was unconstitutionally vague as applied to a defendant who showed a 12-year-old boy some "Playboy-type" magazines, asked if the boy knew how to masturbate, and asked to see the boy's pubic hair. (Wissing, supra, at pp. 747–748.) It is example of conduct not covered by RCW 9.68A.090. It is not example of conduct covered by RCW 9.68A.090, but not covered by section 288.3(a). Consequently, it is irrelevant to the issue of whether the least adjudicated elements test has been met as to these two statutes. 6 § 9.68A.110, subd. (3).) By pleading guilty to violating RCW 9.68A.090, San Nicolas gave up this defense, effectively adjudicating it against him. Thus, the least adjudicated elements of RCW 9.68A.090 in this particular case include San Nicolas's constructive knowledge the victim was a minor.

San Nicolas does not dispute the identity of the remaining elements of RCW 9.68A.090 and section 288.3(a). Accordingly, we conclude the court did not err in determining the least adjudicated elements of San Nicolas's conviction for violating RCW 9.68A.090 also constitute a violation of section 288.3(a).

Alternatively, section 647.6(a)(1) prohibits a person from annoying or molesting any child under 18 years of age.4 To establish a violation of this statute, a prosecutor must prove a defendant (1) engaged in conduct directed at a child; (2) a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the conduct; (3) the conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under the age of 18 years at the time of the conduct. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1158; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396; CALCRIM No. 1122.)

San Nicolas contends the least adjudicated elements test is not met as to this offense because section 647.6(a)(1) requires the offending conduct to be motivated by an 4 Section 647.6(a)(1) specifically provides: "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." 7 unnatural or abnormal sexual interest in the child and RCW 9.68A.090 requires no such motivation. To the contrary, a violation of RCW 9.68A.090 must be motivated by desire to engage in sexual misconduct. Because there can be no normal sexual interest in a child (In re D.G. (2012) 208 Cal.App.4th 1562, 1571), the motivation element of section 647.6(a)(1) is encompassed within the motivation element of RCW 9.68A.090.

Echoing an argument raised as to section 288.3(a), San Nicolas further contends the least adjudicated elements test is not met as to section 647.6(a)(1) because section 647.6(a)(1) requires proof beyond a reasonable doubt the defendant did not have a good faith belief the child was at least 18 years old while RCW 9.68A.090 requires no such mental state. However, as we previously explained, the least adjudicated elements of RCW 9.68A.090 in this particular case include San Nicolas's constructive knowledge the victim was a minor, which precludes him from having had a good faith belief the victim was at least 18 years old. As San Nicolas does not dispute the identity of the remaining elements of RCW 9.68A.090 and section 647.6(a)(1), we conclude the court did not err in determining the least adjudicated elements of San Nicolas's conviction for violating RCW 9.68A.090 also constitute a violation of section 647.6(a)(1).

8 IV

DISPOSITION

The judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.

Cites, in this corpus

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