Preview
3/6/2014 3:49:26 PM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
D-1-GN-14-000698 D-LON 14000888
No.
JON STANGEL s untae 2018T oy
§
Petitioner, §
:
vm § JUDICIAL DISTRICT COURT
§
TEXAS DEPARTEMENT OF §
PUBLIC SAFETY, 8
§
§
Respondent. § TRAVIS COUNTY, TEXAS
APPEAL OF DETERMINATION REQUIRING LIFETIME SEX OFFENDER
REGISTRATION FOR OUT OF STATE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Petitioner, Jon Stangel, and moves this honorable Court to make a
deiermination that Petitioner's prior convictions do not require lifetime registration in Texas on
Equal Protection grounds, and under the Full Faith and Credit Clause of the United States
Constitution. U.S st. art. IV, §1. The U.S. Constitution requires “Full faith and credit ought
to be given in each state to the public acts, records, and judicial proceedings, of every other state;
and the legislature shall, by general laws, prescribe the manner in which such acts, records, and
proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in
another.” Jd. The Equal Protection Clause of the Fourteenth Amendment “is essentially a
direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v, Doe, 457 U. S. 202, 216 (1982). As
argued in more detail below, we respectfully plead to the court to determine that Equal
Protection requires the removal of Mr. Stangel’s name from the Texas Sex offender registry
because he has been rehabilitated and his original state of California no longer requires him to
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page |
Josue Garcia v, Texas Department af Public Safetyregister. Any requirement that Mr. Stangel register violates his fundamental right to travel within
the United States and should be reconsidered by this honorable court. Furthermore, it has long
been held that foreign judgments are entitled to greater respect than foreign laws. Accordingly,
his out of state judgment rendering him rehabilitated following a California offense and eligible
(1813).
Petitioner files this Appeal of Determination Requiring Lifetime Sex Offender
Registration (this “Appeal”) and respectfully states as follows:
1, BACKGROUND
i. In April 2001, in the County of Placer, California, Petitioner Jon Antony Stangel
engaged in consensual sexual intercourse and consensual oral copulation with a 15
year old girl. Petitioner was 25 years old at the time. Petitioner was subsequently
arrested and charged in Placer County Superior Court case number 62-21856 with a
number of Penal Code violations relating to this incident.
ie}
On September 4, 2001, Petitioner pled no contest to a violation of California Penal
Code §288a(b)(2), Oral Copulation of a Person Under 16 Years of Age by a Person
Over 21 Years of Age, a felony, as well as to a specified misdemeanor charge of
violating Penal Code §261.5(d), Unlawful Sexual Intercourse with a Minor Under 16
by a Person Over 21.
3. On October 2, 2001, Petitioner was placed on four years formal probation. He was
ordered to serve 210 days in Placer County Jaii, pay miscellaneous fines and fees,
participate in substance abuse treatment and register as a sex offender pursuant to
Penal Code §290.
‘Exhibit L.
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 2
Jon Stangel v. Texas Department of Public Safety4. Petitioner completed his Placer County Jail commitment, paid all fines and fees, and
successfully completed a substance abuse treatment program at Skyway House in
Chico, California.
3. In November 2002, Petitioner was arrested in Sacramento County and subsequently
pled no contest to a felony violation of Penal Code §261.5(c), Unlawful Sex with a
Minor More Than Three Years Younger Than Defendant, and was sentenced to state
prison for two years on December 24, 2002 (Sacramento County Superior Court case
number 02F09807). The Sacramento County case involved the same minor involved
in the earlier Placer County case.
In fact, with her mother’s knowledge and consent, Mr. Stangel had been living with
the minor involved at her mother’s home and was involved in a long-term romantic
relationship with her. The couple also had a child together. Reasons for the formal
police report of Mr. Stangel’s relationship with the young woman include threats
against her mother that she should go along with the complaint or face CPS charges.
Both Mr. Stangel and his then-girlfriend were troubled by drag addiction, and she is
currently not allowed to see their child due to her ongoing addiction to
methamphetamine. Despite their differing ages, the couple had been in love and he
was not a violent rapist preying on women.
6. Petitioner’s probation in the Placer County case was revoked as a result of his
conviction in Sacramento County. On February 18, 2003, petitioner admitted he had
violated probation and was sentenced to an additional eight months in state prison for
the Penal Code section 288a(b)(2) conviction.
7. Petitioner was released from prison in 2004 but continued to struggle with substance
abuse issues, returning to prison on multiple parole revocations over the next several
years. Petitioner did not suffer any subsequent convictions for new offenses,
however.
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 3
Jon Stangel v. Texas Department of Public Safety8. Early in 2008 petitioner entered a residential drug treatment program at Narconon
South Texas, located in Harlingen, Texas, and remained in that program
approximately five months.
9. In 2009 petitioner worked as a volunteer at a Narconon program in Indio Hills,
California, He then moved to Palm Springs, California and, after suffering a relapse,
returned to Narconon South Texas for additional treatment in April 2010. After two
months in treatment petitioner became a volunteer with that program, continuing in
that capacity for approximately ten months (see February 11, 2011 letter from
Narconon South Texas executive director Joseph Sauceda, attached hereto as Exhibit
A).
10. Since April 2011 petitioner has been ermployed as a cashier at Stripes Gas Station in
Harlingen, Texas.
li. Petitioner has a pending offer for a paid position at Narconon South Texas. That
offer is contingent on petitioner obtaining relief from his sex offender registration
requirement.
12. Petitioner’s California duty to register was set aside as a result of California law,
specifically, People v. Hofsheier (2006) 37 Cal. 4th 1185. This case, and its progeny
have established that it is a violation of equal protection to continue to require
registration pursuant to Penal Code §290 for individuals convicted of certain
violations of the California Penal Code, Petitioner believes that California residents
should be treated the same in Texas as they are in California and that California's
recognition of his rights entitles him to relief in Texas.
WHEREFORE, Petitioner prays that:
1 An alternative writ of mandate issue under the seal of the court commanding
respondent to remove Petitioner from the state Sex Offender Registry, or to show cause before
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 4
Jon Stangel y. Texas Department of Public Safetythis court at a date, time and place hereafter to be specified by the court why it has not done so,
and why a peremptory writ should not issue;
2. For peremptory writ of mandate to the same effect as the alternative except for the
order to show cause;
3. For such other and further relief as the court deems just and proper.
Dated:
The Barrera Firm
Ricardo A Barrera
Attorney for Petitioner
iL, ARGUMENT
A. EQUAL PROTECTION REQUIRED THE REMOVAL OF PETITIONER FROM
THE SEX OFFENDER REGISTRY IN THE STATE OF THE ORIGINAL OFFENSE
As demonstrated to the California court which ordered Mr. Stangel’s removal from its
registry, his conduct, committed in California, was not subject to mandatory registration or
discretionary registration based on Equal Protection grounds, as well as on his complete and total
rehabilitation from drug abuse that led to his relationship with the minor in question. California
based its decision requiring Mr. Stangel’s removal’ from its registry on the following arguments:
THE EQUAL PROTECTION CLAUSE PROHIBITS
CLASSIFICATIONS THAT AFFECT TWO OR MORE
SIMILARLY SITUATED GROUPS IN AN UNEQUAL
MANNER
“The Equal Protection Clause requires more of a state law than nondiscriminatory
application within the class it establishes. It also imposes a requirement of some
rationality in the nature of the class singled out.” (Rinaldi v. Yeager (1966) 384 U.S.
? See Exhibit 1, attached: California Writ of Mandate requiring removal from registry.
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 5
Jon Stangel v. Texas Department of Public Safety305, 308-309.) A meritorious claim under the Equal Protection Clause requires a
showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner. (Un re Eric J. (1979) 25 Cal.3d 522, 530;
Cooley v. Superior Court (2002) 29 Cal. 4" 228.)
IMPOSING A MANDATORY LIFETIME
REGISTRATION REQUIREMENT FOR A VIOLATION
OF PENAL CODE SECTION 288a(b)(2) VIOLATES THE
EQUAL PROTECTION CLAUSE
In People v. Hofsheier the California Supreme Court held that the mandatory
lifetime registration requirement imposed by Penal Code section 290 on persons
convicted of voluntary oral copulation with a minor 16 or 17 years of age, in
violation of Penal Code section 288a(b)(1), violates the equal protection clauses of
the federal and state Constitutions. People _y. Hofsheier (2006) 37 Cal. 4” 1185,
1207.
As the Supreme Court in Hofsheier explained, there is no rational basis for
distinguishing between persons who engage in oral copulation with 16 or 17 year
olds, and those who have sexual intercourse with minors of the same age in violation
of Penal Code section 261.5, since offenders in the latter category are not subject to
mandatory registration under section 290:
We perceive no reason why the Legislature would conclude that persons
who are convicted of voluntary oral copulation with adolescents 16 to 17
years old, as opposed to those who are convicted of voluntary intercourse
with adolescents in that same age group, constitute a class of “particularly
incorrigible offenders” (Newland v. Board of Governors (1977) 19 Cal.3d at
p-712, 139 Cal Rptr. 620, 566 P.24 254) who require lifetime surveillance as
sex offenders. We therefore conclude that the statutory distinction in section
290 requiring mandatory lifetime registration of all persons who, like
defendant here, were convicted of voluntary oral copulation with a minor of
the age of 16 or 17, but not of someone convicted of voluntary sexual
intercourse with a minor of the same age, violates the equal protection
clauses of the federal and state Constitutions. (People v. Hofsheier (2006)
37 Cal.4® 1185, 1206-1207.)
The court determined that the proper remedy was to invalidate the mandatory
registration requirement for persons in Hofsheier’s classification. 1d. at 1208.
People v. Garcia (2008) 161 Cal.App.4th 475 extended the holding of Hofsheier to
convictions for violation of Penal Code section 288a(b)(2), which penalizes
voluntary oral copulation involving a 14 or 15 year old victim when the perpetrator
is more than 21 years of age. In Garcia the 26 year old defendant pled guilty to
voluntary oral copulation with a 14 year old and was subjected to mandatory
lifetime registration under Penal Code section 290.
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION — Page 6
Jon Stangel v. Texas Department of Public SafetyFollowing publication of the California Supreme Court’s decision in Hofsheier, the
defendant in Garcia petitioned the trial court for relief from his registration
requirement, which was denied. The Court of Appeal reversed, noting that the
“crucial issue before the court (in Hofsheier) was whether there is any rational basis
for making a distinction between oral copulation and sexual intercourse when
determining who must register as a sex offender, all other factors being equal.”
Garcia, supra, 161 Cal. App.4” at 482.
Noting that a person over 21 convicted of unlawful sexual intercourse with a minor
was not subject to mandatory registration, regardless of whether the victim was 16
or 14, the court explained its holding as follows:
if there is no rational reason for this disparate treatment when the
victim is 16 years old, there can be no rational reason for the
disparate treatment when the victim is even younger, 14 years old.
Accordingly, Hofsheier applies whether the conviction is under
(2008) 161 Cal.App.4" 475, 482.
Subsequent appellate decisions have agreed with Garcia’s analysis and the extension
of Hofsheier to Penal Code section 288a(b)(2), concluding that subjecting
individuals convicted of a violation of that statute to mandatory sex offender
registration violates equal protection. See, ¢.g., People v. Hernandez (2008) 166
Cal. App.4" 641,650; People msing (2009) 176 Cal. App.4” 676,685.
Only one appellate decision, People v. Manchel (2008) 163 Cal. App.4® 1108, has
declined to extend the Hofshe: a to those convicted of violations of section
288a(b\(2). The court in Manchel reasoned that because the defendant was more
than 10 years older than his 15 year old victim, he could have been convicted of
lewd conduct in violation of Penal Code section 288(c)(1), which requires
mandatory registration for any lewd conduct, including both oral copulation and
sexual intercourse. This possibility, the court felt, “fundamentally alter[ed]” the
equal protection analysis of Hofsheier, and rendered its holding inapplicable to the
anchel, supra, 163 Cal. App.4" at 1114.
Manchel is an anomaly, however, and subsequent cases have consistently rejected
its analysis. See, e.g. People v. Luansing, supra, 176 Cal. App.4" 676,683-685;
People v. Ranscht (2009) 173 Cal Appa? 1369,1373-1375; In re JP. (2009) 170
Cal. App.4" 1292, 1297-1299.
In Ranscht, the 18 year old defendant pied guilty to sexually penetrating a 12 or 13
year old victim in violation of Penal Code section 289(h). The Court of Appeal
determined that mandatory lifetime sex offender registration under these
circumstances violated the defendant’s constitutional right to equal protection.
People v. Ranscht, supra, 173 Cal_App.4” 1369,1375.
APPEAL OF DETERMINATION REQUIRING SEX GFFENDER REGISTRATION — Page 7
Jou Stangel v. Texas Department of Publie SafetyIn rejecting Manchel the court in Ranscht reasoned as follows:
Ultimately, the Manchel court’s logic eludes us. It would have us
completely ignore the crime of which a defendant is convicted and look
instead to all of the crimes of which a defendant could have been convicted
which focused on “persons who are convicted of voluntary oral
copulation..., as opposed io those who are convicted of voluntary
intercourse with adolescents in [the] same age group[.]” (Hofsheier, supra,
37 Cal.4® at pp.1206-1207, 39 Cal Rptr.3d 821, 129 P.3d 29, italics added.)
Consistent with Hofsheier, we think the more appropriate course is to focus on the
offense of which the defendant was convicted, as opposed to a hypothetical offense
of which the defendant could have been convicted based on the conduct underlying
the charge. “This approach jibes with the mandatory registration statutes themselves,
which are triggered by certain convictions ...., and not by the underlying conduct of
those offenses per se.” (citations omitted) People v. Ranscht, supra, 173 Cal.App.4®
1369,1374-1375.
THERE IS NO BASIS FOR THE COURT TO IMPOSE A
DISCRETIONARY REGISTRATION REQUIREMENT ON
PETITIONER
The only remaining issue is whether there is any basis for the court to impose a
discretionary registration requirement on Petitioner pursuant to Penal Code §
290.006. As set forth below, there is not.
As the Supreme Court explained in Hofsheier, in cases in which equal protection
principles prohibit the mandatory imposition of a lifetime registration requirement,
the trial court still must determine whether a discretionary registration requirernent
should be imposed. Hofsheier, supra, 37 Cal4® at 1208-1209. In exercising its
discretion in the context of a Hofsheier hearing, the trial court must consider the
defendant’s behavior since the time of his original sentencing, including evidence of
good behavior and rehabilitation. People v. Garcia, supra, 161 Cal.App.4" at 485.
As another appellate court has explained, the reason why a defendant’s post-
conviction behavior is relevant to the court’s determination is because “one of the
‘reasons for requiring registration’ under §290.006 must be that the defendant is
likely to commit similar offenses ~ offenses like those listed in section 290 — in the
future.” Lewis v. Superior Court (2008) 169 Cal.App.4" 70, 78.
* §290.006 permits a sentencing trial court to exercise its discretion to impose a registration requirement, regardless
of the nature of the conviction. Before it may do so the court must find that the offense was commitied as result of
sexual compulsion or for purposes of sexual gratification. The court must also state on the record the reasons for its
findings and the reasons for requiring registration, Penal Code § 290.006.
Jon Stangel v. Texas Department of Public SafetyIn Lewis, the defendant had suffered at least seven additional criminal convictions in
the 20 years since his registration requirement had been
imposed. None of those convictions, however, were for offenses requiring
registration or for offenses similar to those requiring registration. The court
concluded that the trial court had erted in ordering defendant to continue to register
since there was nothing in the record to support a finding that “it is likely Lewis will
start committing such offenses now.” Id. At 79.
The reasoning of the courts in Garcia and Lewis is applicable here and compels a
finding that Petitioner should be granted relief from his registration requirement.
Aside from a similar conviction for conduct involving the same alleged victim in
2002, Petitioner has suffered no additional convictions of any kind. Petitioner has
also successfully confronted his substance abuse issues and now has an opportunity
to work in that field helping others. It is apparent that, ten years after his conviction
in this case, there is no basis for concluding it is likely Petitioner will now start
committing registerable offenses. Consequently registration pursuant to Penal Code
§ 290.006 should not be imposed.
CONCLUSION
Consistent with the foregoing authorities, the existing requirement that petitioner is
subject to mandatory lifetime regisiration based on his conviction for a violation of
Penal Code section 288a(b)(2) constitutes a denial of his right to equal protection
under the federal and state Constitutions, Petitioner is therefore entitled to relief
from that mandatory obligation. Additionally, there is no basis for concluding that
Petitioner is likely to commit registerable offenses in the future, and consequently
Petitioner should not be subjected to a discretionary registration requirement.
8. DISPARATE TREATMENT BY TEXAS BASED SOLELY ON THE STATE OF THE
ORIGINAL OFFENSE VIOLATES EQUAL PROTECTION
It shocks the conscience to think that an offender can be completely rehabilitated and
even removed from the registry in one state, only to learn that another state which has stricter
laws will require him to register. Unlike most sex offenders, Mr. Stangel was involved in a
romantic relationship with the minor in question. There is no danger to the community that he
would commit similar offenses again.
In fact, had Mr. Stangel been a resident of Texas at the time of the offense, he likely
would have met every requirement for common law marriage to his “victim,” including parental
consent of her mother, providing him with an affirmative defense to any sexual crime which
APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 9
Jon Siangel v. Texas Department of Public Safetywould have kept him from prison time. However, this was not the case in California, which has
no common law marriage tradition.
Aside from that, but perhaps most importantly, although Texas has a rehabilitation
program allowing for early release of offenders from its sex offender registry, this is only
available for offenders who committed offenses in Texas. Texas’s continuing registration
yequirement and disparate treatment of a California offender who has been relieved from a
Amendment, which is incorporated against the states. The Equal Protection Clause of the
Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction
the equal protection of the laws,” which is essentially a direction that all persons similarly
L.Ed.2d 786 (1982).
By treating California offenders disparately, Texas violates the offender’s fundamental
right to move about, a protected liberty interest. That is, the California offender who has been
relieved of registration may not reside in Texas without being subjected to a registration
requirement that he is not subject to in the state in which the offense occurred. Incredibly,
offenders in Texas who are similarly situated have the option of proving rehabilitation, whereas
out of state offenders do not.’
C. REFUSAL TO HONOR OUT OF STATE JUDGMENT VIOLATES THE FULL
FAITH AND CREDIT CLAUSE
*“Only Texas convi
convictions or adjudications are cligible even though the prospective coplcant
Offender Treatment ~ Eligibility Checklist for Early Termination.
accessed on January 8, 2014.
dow Stangel v. Texas Department of Public SafetySimilarly and perhaps most importantly, any action by Texas to deny petitioner his right
to be governed by the judgments of the court of original jurisdiction over his offense is in direct
conflict with the Full Faith and Credit Clause of the United States Constitution. Baker v. General
Motors, 522 U.S. 222 (1998). If the legal pronouncements of one state conflict with the public
policy of another state, federal courts in the past have been reluctant to force a state to enforce
the pronouncements of another state in contravention of its own public policy. In cases of out-of-
state judgments, the Court has stated that there may be exceptions to the enforcement and
jurisdiction of out-of-state judgments, but maintains that there is no public policy exception to
the Full Faith and Credit Clause for judgments. Id.
UL PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner Jon Stangel prays that the Court
make a determination that Petitioner’s prior convictions no longer require registration and that he
is entitled to be removed from the Texas Sex Offender Registry on Equal Protection grounds.
Respectfully submitted,
THE BARRERA FIRM
1314 E, Harrison Street
Harlingen, TX 78550
(956) 428-2822
An
By: LE A SS
Ricardo A. Barrera
SBN 24071959
Attorney for JON STANGEL,
CERTIFICATE OF SERVICE
1 hereby certify that a true and correct copy of the above and foregoing Appeal of
are\tara bar
Determination Requiring Sex Offender Registration was sent via firsteieas-mmail on the (6 __ of
Merc
lanwass, 2014 to the following:
Jon Stangel v. Texas Depariment of Public SafetyScott Merchant
Texas Department of Public Safety
P.O, Box 4087
Austin, Texas 78773-0001 L_
_ x
Ricardo A. Barrera
APPEAL OF DETERMINATION REQUIRING SEX OF FENDER REGISTRATION — Page 12
Jon Stangel v. Texas Department af Public SafetyExnbhA |
Timothy S. Woodall
Leupp & Woodall
149 Court Street
Auburn, CA 95603
Phone: (530) 888-1100
SBN: 114407
Attorney for Petitioner
SUPERIOR COURT OF THE STATE OF CALIFORNIA
OUNTY OF PLACER :
JON STANGEL, No. scvz9347
Petitioner, ORDER GRANTING WRIT. ‘OF
MANDATE
Vv.
CALIFORNIA DEPARTMENT OF
JUSTICE,
Raspondent;
THE PEOPLE OF THE STATE OF '
CALIFORNIA, y
Real Party In Interest.
pn rid
ov Petitioner on
As prayed for in the Patitlon for Writ of M
june 8, 2011, and for good cause appearing:
IT IS HERESY ORDERED that:
Department of J. ed to ramove
Petitioner from Callfornia’s sex offender registry forthwith, and Petitioner is
no longer required to ragister as a sex offender pursuant to Cailfornia Pena!
Code section 290 et seqi
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Preview
3/6/2014 3:49:26 PM Amalia Rodriguez-Mendoza District Clerk Travis County D-1-GN-14-000698 D-LON 14000888 No. JON STANGEL s untae 2018T oy § Petitioner, § : vm § JUDICIAL DISTRICT COURT § TEXAS DEPARTEMENT OF § PUBLIC SAFETY, 8 § § Respondent. § TRAVIS COUNTY, TEXAS APPEAL OF DETERMINATION REQUIRING LIFETIME SEX OFFENDER REGISTRATION FOR OUT OF STATE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Petitioner, Jon Stangel, and moves this honorable Court to make a deiermination that Petitioner's prior convictions do not require lifetime registration in Texas on Equal Protection grounds, and under the Full Faith and Credit Clause of the United States Constitution. U.S st. art. IV, §1. The U.S. Constitution requires “Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another.” Jd. The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v, Doe, 457 U. S. 202, 216 (1982). As argued in more detail below, we respectfully plead to the court to determine that Equal Protection requires the removal of Mr. Stangel’s name from the Texas Sex offender registry because he has been rehabilitated and his original state of California no longer requires him to APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page | Josue Garcia v, Texas Department af Public Safetyregister. Any requirement that Mr. Stangel register violates his fundamental right to travel within the United States and should be reconsidered by this honorable court. Furthermore, it has long been held that foreign judgments are entitled to greater respect than foreign laws. Accordingly, his out of state judgment rendering him rehabilitated following a California offense and eligible (1813). Petitioner files this Appeal of Determination Requiring Lifetime Sex Offender Registration (this “Appeal”) and respectfully states as follows: 1, BACKGROUND i. In April 2001, in the County of Placer, California, Petitioner Jon Antony Stangel engaged in consensual sexual intercourse and consensual oral copulation with a 15 year old girl. Petitioner was 25 years old at the time. Petitioner was subsequently arrested and charged in Placer County Superior Court case number 62-21856 with a number of Penal Code violations relating to this incident. ie} On September 4, 2001, Petitioner pled no contest to a violation of California Penal Code §288a(b)(2), Oral Copulation of a Person Under 16 Years of Age by a Person Over 21 Years of Age, a felony, as well as to a specified misdemeanor charge of violating Penal Code §261.5(d), Unlawful Sexual Intercourse with a Minor Under 16 by a Person Over 21. 3. On October 2, 2001, Petitioner was placed on four years formal probation. He was ordered to serve 210 days in Placer County Jaii, pay miscellaneous fines and fees, participate in substance abuse treatment and register as a sex offender pursuant to Penal Code §290. ‘Exhibit L. APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 2 Jon Stangel v. Texas Department of Public Safety4. Petitioner completed his Placer County Jail commitment, paid all fines and fees, and successfully completed a substance abuse treatment program at Skyway House in Chico, California. 3. In November 2002, Petitioner was arrested in Sacramento County and subsequently pled no contest to a felony violation of Penal Code §261.5(c), Unlawful Sex with a Minor More Than Three Years Younger Than Defendant, and was sentenced to state prison for two years on December 24, 2002 (Sacramento County Superior Court case number 02F09807). The Sacramento County case involved the same minor involved in the earlier Placer County case. In fact, with her mother’s knowledge and consent, Mr. Stangel had been living with the minor involved at her mother’s home and was involved in a long-term romantic relationship with her. The couple also had a child together. Reasons for the formal police report of Mr. Stangel’s relationship with the young woman include threats against her mother that she should go along with the complaint or face CPS charges. Both Mr. Stangel and his then-girlfriend were troubled by drag addiction, and she is currently not allowed to see their child due to her ongoing addiction to methamphetamine. Despite their differing ages, the couple had been in love and he was not a violent rapist preying on women. 6. Petitioner’s probation in the Placer County case was revoked as a result of his conviction in Sacramento County. On February 18, 2003, petitioner admitted he had violated probation and was sentenced to an additional eight months in state prison for the Penal Code section 288a(b)(2) conviction. 7. Petitioner was released from prison in 2004 but continued to struggle with substance abuse issues, returning to prison on multiple parole revocations over the next several years. Petitioner did not suffer any subsequent convictions for new offenses, however. APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 3 Jon Stangel v. Texas Department of Public Safety8. Early in 2008 petitioner entered a residential drug treatment program at Narconon South Texas, located in Harlingen, Texas, and remained in that program approximately five months. 9. In 2009 petitioner worked as a volunteer at a Narconon program in Indio Hills, California, He then moved to Palm Springs, California and, after suffering a relapse, returned to Narconon South Texas for additional treatment in April 2010. After two months in treatment petitioner became a volunteer with that program, continuing in that capacity for approximately ten months (see February 11, 2011 letter from Narconon South Texas executive director Joseph Sauceda, attached hereto as Exhibit A). 10. Since April 2011 petitioner has been ermployed as a cashier at Stripes Gas Station in Harlingen, Texas. li. Petitioner has a pending offer for a paid position at Narconon South Texas. That offer is contingent on petitioner obtaining relief from his sex offender registration requirement. 12. Petitioner’s California duty to register was set aside as a result of California law, specifically, People v. Hofsheier (2006) 37 Cal. 4th 1185. This case, and its progeny have established that it is a violation of equal protection to continue to require registration pursuant to Penal Code §290 for individuals convicted of certain violations of the California Penal Code, Petitioner believes that California residents should be treated the same in Texas as they are in California and that California's recognition of his rights entitles him to relief in Texas. WHEREFORE, Petitioner prays that: 1 An alternative writ of mandate issue under the seal of the court commanding respondent to remove Petitioner from the state Sex Offender Registry, or to show cause before APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 4 Jon Stangel y. Texas Department of Public Safetythis court at a date, time and place hereafter to be specified by the court why it has not done so, and why a peremptory writ should not issue; 2. For peremptory writ of mandate to the same effect as the alternative except for the order to show cause; 3. For such other and further relief as the court deems just and proper. Dated: The Barrera Firm Ricardo A Barrera Attorney for Petitioner iL, ARGUMENT A. EQUAL PROTECTION REQUIRED THE REMOVAL OF PETITIONER FROM THE SEX OFFENDER REGISTRY IN THE STATE OF THE ORIGINAL OFFENSE As demonstrated to the California court which ordered Mr. Stangel’s removal from its registry, his conduct, committed in California, was not subject to mandatory registration or discretionary registration based on Equal Protection grounds, as well as on his complete and total rehabilitation from drug abuse that led to his relationship with the minor in question. California based its decision requiring Mr. Stangel’s removal’ from its registry on the following arguments: THE EQUAL PROTECTION CLAUSE PROHIBITS CLASSIFICATIONS THAT AFFECT TWO OR MORE SIMILARLY SITUATED GROUPS IN AN UNEQUAL MANNER “The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out.” (Rinaldi v. Yeager (1966) 384 U.S. ? See Exhibit 1, attached: California Writ of Mandate requiring removal from registry. APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 5 Jon Stangel v. Texas Department of Public Safety305, 308-309.) A meritorious claim under the Equal Protection Clause requires a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Un re Eric J. (1979) 25 Cal.3d 522, 530; Cooley v. Superior Court (2002) 29 Cal. 4" 228.) IMPOSING A MANDATORY LIFETIME REGISTRATION REQUIREMENT FOR A VIOLATION OF PENAL CODE SECTION 288a(b)(2) VIOLATES THE EQUAL PROTECTION CLAUSE In People v. Hofsheier the California Supreme Court held that the mandatory lifetime registration requirement imposed by Penal Code section 290 on persons convicted of voluntary oral copulation with a minor 16 or 17 years of age, in violation of Penal Code section 288a(b)(1), violates the equal protection clauses of the federal and state Constitutions. People _y. Hofsheier (2006) 37 Cal. 4” 1185, 1207. As the Supreme Court in Hofsheier explained, there is no rational basis for distinguishing between persons who engage in oral copulation with 16 or 17 year olds, and those who have sexual intercourse with minors of the same age in violation of Penal Code section 261.5, since offenders in the latter category are not subject to mandatory registration under section 290: We perceive no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of “particularly incorrigible offenders” (Newland v. Board of Governors (1977) 19 Cal.3d at p-712, 139 Cal Rptr. 620, 566 P.24 254) who require lifetime surveillance as sex offenders. We therefore conclude that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions. (People v. Hofsheier (2006) 37 Cal.4® 1185, 1206-1207.) The court determined that the proper remedy was to invalidate the mandatory registration requirement for persons in Hofsheier’s classification. 1d. at 1208. People v. Garcia (2008) 161 Cal.App.4th 475 extended the holding of Hofsheier to convictions for violation of Penal Code section 288a(b)(2), which penalizes voluntary oral copulation involving a 14 or 15 year old victim when the perpetrator is more than 21 years of age. In Garcia the 26 year old defendant pled guilty to voluntary oral copulation with a 14 year old and was subjected to mandatory lifetime registration under Penal Code section 290. APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION — Page 6 Jon Stangel v. Texas Department of Public SafetyFollowing publication of the California Supreme Court’s decision in Hofsheier, the defendant in Garcia petitioned the trial court for relief from his registration requirement, which was denied. The Court of Appeal reversed, noting that the “crucial issue before the court (in Hofsheier) was whether there is any rational basis for making a distinction between oral copulation and sexual intercourse when determining who must register as a sex offender, all other factors being equal.” Garcia, supra, 161 Cal. App.4” at 482. Noting that a person over 21 convicted of unlawful sexual intercourse with a minor was not subject to mandatory registration, regardless of whether the victim was 16 or 14, the court explained its holding as follows: if there is no rational reason for this disparate treatment when the victim is 16 years old, there can be no rational reason for the disparate treatment when the victim is even younger, 14 years old. Accordingly, Hofsheier applies whether the conviction is under (2008) 161 Cal.App.4" 475, 482. Subsequent appellate decisions have agreed with Garcia’s analysis and the extension of Hofsheier to Penal Code section 288a(b)(2), concluding that subjecting individuals convicted of a violation of that statute to mandatory sex offender registration violates equal protection. See, ¢.g., People v. Hernandez (2008) 166 Cal. App.4" 641,650; People msing (2009) 176 Cal. App.4” 676,685. Only one appellate decision, People v. Manchel (2008) 163 Cal. App.4® 1108, has declined to extend the Hofshe: a to those convicted of violations of section 288a(b\(2). The court in Manchel reasoned that because the defendant was more than 10 years older than his 15 year old victim, he could have been convicted of lewd conduct in violation of Penal Code section 288(c)(1), which requires mandatory registration for any lewd conduct, including both oral copulation and sexual intercourse. This possibility, the court felt, “fundamentally alter[ed]” the equal protection analysis of Hofsheier, and rendered its holding inapplicable to the anchel, supra, 163 Cal. App.4" at 1114. Manchel is an anomaly, however, and subsequent cases have consistently rejected its analysis. See, e.g. People v. Luansing, supra, 176 Cal. App.4" 676,683-685; People v. Ranscht (2009) 173 Cal Appa? 1369,1373-1375; In re JP. (2009) 170 Cal. App.4" 1292, 1297-1299. In Ranscht, the 18 year old defendant pied guilty to sexually penetrating a 12 or 13 year old victim in violation of Penal Code section 289(h). The Court of Appeal determined that mandatory lifetime sex offender registration under these circumstances violated the defendant’s constitutional right to equal protection. People v. Ranscht, supra, 173 Cal_App.4” 1369,1375. APPEAL OF DETERMINATION REQUIRING SEX GFFENDER REGISTRATION — Page 7 Jou Stangel v. Texas Department of Publie SafetyIn rejecting Manchel the court in Ranscht reasoned as follows: Ultimately, the Manchel court’s logic eludes us. It would have us completely ignore the crime of which a defendant is convicted and look instead to all of the crimes of which a defendant could have been convicted which focused on “persons who are convicted of voluntary oral copulation..., as opposed io those who are convicted of voluntary intercourse with adolescents in [the] same age group[.]” (Hofsheier, supra, 37 Cal.4® at pp.1206-1207, 39 Cal Rptr.3d 821, 129 P.3d 29, italics added.) Consistent with Hofsheier, we think the more appropriate course is to focus on the offense of which the defendant was convicted, as opposed to a hypothetical offense of which the defendant could have been convicted based on the conduct underlying the charge. “This approach jibes with the mandatory registration statutes themselves, which are triggered by certain convictions ...., and not by the underlying conduct of those offenses per se.” (citations omitted) People v. Ranscht, supra, 173 Cal.App.4® 1369,1374-1375. THERE IS NO BASIS FOR THE COURT TO IMPOSE A DISCRETIONARY REGISTRATION REQUIREMENT ON PETITIONER The only remaining issue is whether there is any basis for the court to impose a discretionary registration requirement on Petitioner pursuant to Penal Code § 290.006. As set forth below, there is not. As the Supreme Court explained in Hofsheier, in cases in which equal protection principles prohibit the mandatory imposition of a lifetime registration requirement, the trial court still must determine whether a discretionary registration requirernent should be imposed. Hofsheier, supra, 37 Cal4® at 1208-1209. In exercising its discretion in the context of a Hofsheier hearing, the trial court must consider the defendant’s behavior since the time of his original sentencing, including evidence of good behavior and rehabilitation. People v. Garcia, supra, 161 Cal.App.4" at 485. As another appellate court has explained, the reason why a defendant’s post- conviction behavior is relevant to the court’s determination is because “one of the ‘reasons for requiring registration’ under §290.006 must be that the defendant is likely to commit similar offenses ~ offenses like those listed in section 290 — in the future.” Lewis v. Superior Court (2008) 169 Cal.App.4" 70, 78. * §290.006 permits a sentencing trial court to exercise its discretion to impose a registration requirement, regardless of the nature of the conviction. Before it may do so the court must find that the offense was commitied as result of sexual compulsion or for purposes of sexual gratification. The court must also state on the record the reasons for its findings and the reasons for requiring registration, Penal Code § 290.006. Jon Stangel v. Texas Department of Public SafetyIn Lewis, the defendant had suffered at least seven additional criminal convictions in the 20 years since his registration requirement had been imposed. None of those convictions, however, were for offenses requiring registration or for offenses similar to those requiring registration. The court concluded that the trial court had erted in ordering defendant to continue to register since there was nothing in the record to support a finding that “it is likely Lewis will start committing such offenses now.” Id. At 79. The reasoning of the courts in Garcia and Lewis is applicable here and compels a finding that Petitioner should be granted relief from his registration requirement. Aside from a similar conviction for conduct involving the same alleged victim in 2002, Petitioner has suffered no additional convictions of any kind. Petitioner has also successfully confronted his substance abuse issues and now has an opportunity to work in that field helping others. It is apparent that, ten years after his conviction in this case, there is no basis for concluding it is likely Petitioner will now start committing registerable offenses. Consequently registration pursuant to Penal Code § 290.006 should not be imposed. CONCLUSION Consistent with the foregoing authorities, the existing requirement that petitioner is subject to mandatory lifetime regisiration based on his conviction for a violation of Penal Code section 288a(b)(2) constitutes a denial of his right to equal protection under the federal and state Constitutions, Petitioner is therefore entitled to relief from that mandatory obligation. Additionally, there is no basis for concluding that Petitioner is likely to commit registerable offenses in the future, and consequently Petitioner should not be subjected to a discretionary registration requirement. 8. DISPARATE TREATMENT BY TEXAS BASED SOLELY ON THE STATE OF THE ORIGINAL OFFENSE VIOLATES EQUAL PROTECTION It shocks the conscience to think that an offender can be completely rehabilitated and even removed from the registry in one state, only to learn that another state which has stricter laws will require him to register. Unlike most sex offenders, Mr. Stangel was involved in a romantic relationship with the minor in question. There is no danger to the community that he would commit similar offenses again. In fact, had Mr. Stangel been a resident of Texas at the time of the offense, he likely would have met every requirement for common law marriage to his “victim,” including parental consent of her mother, providing him with an affirmative defense to any sexual crime which APPEAL OF DETERMINATION REQUIRING SEX OFFENDER REGISTRATION ~ Page 9 Jon Siangel v. Texas Department of Public Safetywould have kept him from prison time. However, this was not the case in California, which has no common law marriage tradition. Aside from that, but perhaps most importantly, although Texas has a rehabilitation program allowing for early release of offenders from its sex offender registry, this is only available for offenders who committed offenses in Texas. Texas’s continuing registration yequirement and disparate treatment of a California offender who has been relieved from a Amendment, which is incorporated against the states. The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly L.Ed.2d 786 (1982). By treating California offenders disparately, Texas violates the offender’s fundamental right to move about, a protected liberty interest. That is, the California offender who has been relieved of registration may not reside in Texas without being subjected to a registration requirement that he is not subject to in the state in which the offense occurred. Incredibly, offenders in Texas who are similarly situated have the option of proving rehabilitation, whereas out of state offenders do not.’ C. REFUSAL TO HONOR OUT OF STATE JUDGMENT VIOLATES THE FULL FAITH AND CREDIT CLAUSE *“Only Texas convi convictions or adjudications are cligible even though the prospective coplcant Offender Treatment ~ Eligibility Checklist for Early Termination. accessed on January 8, 2014. dow Stangel v. Texas Department of Public SafetySimilarly and perhaps most importantly, any action by Texas to deny petitioner his right to be governed by the judgments of the court of original jurisdiction over his offense is in direct conflict with the Full Faith and Credit Clause of the United States Constitution. Baker v. General Motors, 522 U.S. 222 (1998). If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. In cases of out-of- state judgments, the Court has stated that there may be exceptions to the enforcement and jurisdiction of out-of-state judgments, but maintains that there is no public policy exception to the Full Faith and Credit Clause for judgments. Id. UL PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Petitioner Jon Stangel prays that the Court make a determination that Petitioner’s prior convictions no longer require registration and that he is entitled to be removed from the Texas Sex Offender Registry on Equal Protection grounds. Respectfully submitted, THE BARRERA FIRM 1314 E, Harrison Street Harlingen, TX 78550 (956) 428-2822 An By: LE A SS Ricardo A. Barrera SBN 24071959 Attorney for JON STANGEL, CERTIFICATE OF SERVICE 1 hereby certify that a true and correct copy of the above and foregoing Appeal of are\tara bar Determination Requiring Sex Offender Registration was sent via firsteieas-mmail on the (6 __ of Merc lanwass, 2014 to the following: Jon Stangel v. Texas Depariment of Public SafetyScott Merchant Texas Department of Public Safety P.O, Box 4087 Austin, Texas 78773-0001 L_ _ x Ricardo A. Barrera APPEAL OF DETERMINATION REQUIRING SEX OF FENDER REGISTRATION — Page 12 Jon Stangel v. Texas Department af Public SafetyExnbhA | Timothy S. Woodall Leupp & Woodall 149 Court Street Auburn, CA 95603 Phone: (530) 888-1100 SBN: 114407 Attorney for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA OUNTY OF PLACER : JON STANGEL, No. scvz9347 Petitioner, ORDER GRANTING WRIT. ‘OF MANDATE Vv. CALIFORNIA DEPARTMENT OF JUSTICE, Raspondent; THE PEOPLE OF THE STATE OF ' CALIFORNIA, y Real Party In Interest. pn rid ov Petitioner on As prayed for in the Patitlon for Writ of M june 8, 2011, and for good cause appearing: IT IS HERESY ORDERED that: Department of J. ed to ramove Petitioner from Callfornia’s sex offender registry forthwith, and Petitioner is no longer required to ragister as a sex offender pursuant to Cailfornia Pena! Code section 290 et seqi 2 34) I 4 | i I | ‘Dated: wi 1h) ‘ Se oe Coonan oF ‘the \Sunevor Court Approved-as to form, A <= if A f nthe. || « Ay nae! General Attorney for Re: spondent trict Attorney sea! Party in Interest Attorney for DER GRANTING WRIT OF MANDATE