People v. Olea

Opinion

When a defendant agrees to a plea bargain by which he pleads guilty to an offense not specifically included in the sex offender registration statute, and the registration requirement is not included in the bargain, may the sentencing court subsequently require the defendant to register based on the facts underlying the offense? Not without violating the plea agreement.

Armando Olea appeals from a judgment and sentence entered on his plea of guilty to burglary charges. He contends the sentencing court violated the plea bargain he had accepted when it ordered him to register as a sex offender under Penal Code section 290, subdivision (a)(2)(E).^[1] We agree the court failed to abide by the terms of the plea agreement. However, we do not consider appellant’s suggested remedy appropriate in this case. Rather than striking the registration requirement, we reverse and remand for resentencing.

Background

Appellant was charged by complaint with the following nine felony counts: (1) first degree burglary of Mildred G.’s residence, with intent to commit larceny; (2) first degree burglary of Carol R.’s residence, with intent to commit larceny; (3) first degree burglary of Florence G.’s residence, with intent to commit larceny; (4) first degree burglary of William J.’s residence,

The probation report recommended the maximum term of 10 years, a restitution fine, and sex offender registration under section 290, subdivision (a)(2)(E). The following facts underlying the counts admitted by appellant were before the sentencing court, including some details not disclosed by the probation report but provided by the prosecutor at the hearing. In the Mildred G. burglary, the victim awoke to find appellant on top of her, tearing at her adult diaper and attempting to spread her legs. She called for her son, although he did not live with her, and appellant fled. Her purse, wallet, jewelry box, and dresser drawers had been disturbed and money was missing. The police found paper napkins and human feces in the backyard, and the same kind of napkins inside the residence. In the Florence G. burglary, the victim was awakened by appellant, and engaged him in conversation. She went into the bathroom, from where she saw appellant begin to masturbate. She walked past appellant, pushing him away when he tried to grab her, and went to a neighbor’s to call the police. Money, a coin purse, and a videocassette recorder were taken, and the police found human feces in the backyard. In the William J. burglary, the victim was awakened by a noise in the middle of the night but went back to sleep. In the morning he found his wallet missing, and saw that his television and stereo were disconnected and moved away from the wall. In the Carol R. burglary, the victim came home to discover that food and bottles of wine and vodka were missing, and her nightgown and panties had been moved and apparently urinated or ejaculated on. Later, she found that a picture of her grandmother and items near it had also been stained by urine.

Discussion

Appellant contends the requirement that he register as a sex offender exceeded the terms of his plea bargain and therefore must be stricken. He points out the complaint did not notify him that conviction on the burglary charges would subject him to the registration requirement, nor was he so notified at the plea hearing. Appellant relies on People v. Walker (1991) 54 Cal.3d 1013 [ 1 Cal.Rptr.2d 902 , 819 P.2d 861 ], in which our Supreme Court stated: “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (Id. at p. 1024.)^[3]

Furthermore, “violation of a plea bargain is not subject to harmless error analysis. A court may not impose punishment significantly greater than that bargained for by finding the defendant would have agreed to the greater punishment had it been made a part of the plea offer. ‘Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others’ assessment of the value of the term to defendant. [H . . . [5D Moreover, the concept of harmless error only addresses whether the defendant is prejudiced by the error. However, in the context of a broken plea agreement, there is more at stake than the liberty of the defendant or the length of his term. “At stake is the honor of the govemment[,] public confidence in the fair administration of justice, and the efficient administration of justice . . . (54 Cal.3d at p. 1026, quoting People v. Mancheno (1982) 32 Cal.3d 855 , 865-866 [ 187

Appellant acknowledges that in People v. McClellan (1993) 6 Cal.4th 367 [ 24 Cal.Rptr.2d 739 , 862 P.2d 739 ], the Supreme Court held the sex offender registration requirement is not a permissible subject of plea agreement negotiation when registration is a statutorily mandated element of punishment for the underlying offense. Therefore, the McClellan court decided the defendant’s plea bargain, in which he admitted assault with intent to commit rape, was not violated by imposition of the registration requirement even though the trial court had erroneously failed to advise him of the requirement at the change of plea hearing. (Id. at pp. 379-381.) Appellant argues, however, that unlike the defendant in McClellan he pleaded guilty to offenses that are not subject to the mandatory registration requirement in section 290. Appellant contends the sentencing court was required to exercise its discretion in examining the underlying facts to determine whether his offenses were committed “as a result of sexual compulsion or for purposes of sexual gratification,” under section 290, subdivision (a)(2)(E). Appellant does not dispute that he might be a proper candidate for registration in light of the nature of his crimes. Nevertheless, he insists that because sex offender registration is not an automatic consequence of his burglary convictions it could not be required of him without violating the terms of his plea bargain.

The Attorney General contends the sex offender registration requirement is an insignificant deviation from the terms of appellant’s plea agreement, so the agreement was not violated under the rule stated in People v. Walker, supra, 54 Cal.3d at page 1024 (insignificant conditions may be imposed even if not included in plea negotiations).^[4] This argument must be rejected. If the Supreme Court considered sex offender registration an insignificant form of punishment, it would not have based its holding in McClellan on the mandatory nature of the requirement. Nor would it characterize the requirement as a “grave and direct consequence of [the defendant’s] guilty plea.” (In re Birch (1973) 10 Cal.3d 314 , 322 [ 110 Cal.Rptr. 212 , 515 P.2d 12 ], quoted with approval in People v. McClellan, supra, 6 Cal.4th at p. 376.) As appellant points out, the requirement imposes a lifelong obligation to register

Accordingly, we conclude the sentencing court violated appellant’s due process rights when it imposed the registration requirement in violation of the plea agreement. “[Violation of the bargain by an officer of the state raises a constitutional right to some remedy. [Citations.] [H The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of each case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.]” (People v. Mancheno, supra, 32 Cal.3d at p. 860.)

Appellant contends the appropriate remedy in this case is to grant him specific performance of the plea bargain by striking the registration requirement. “California courts, however, generally disfavor the remedy of specific enforcement of a failed plea bargain when ‘specifically enforcing the bargain [will limit] the judge’s sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing.’ [Citations.] [<J[] Specific enforcement of a failed plea bargain is not a remedy required by the federal Constitution. [Citation.]” (In re Alvernaz (1992) 2 Cal.4th 924 , 942 [ 8 Cal.Rptr.2d 713 , 830 P.2d 747 ], quoting People v. Mancheno, supra, 32 Cal.3d at p. 861; see also People v. Calloway (1981) 29 Cal.3d 666 , 672 [ 175 Cal.Rptr. 596 , 631 P.2d 30 ] [defendant sentenced in violation of plea bargain was not entitled to specific performance; fairness demanded only that he be given opportunity to withdraw his plea].) Here, the sentencing court

We note that under section 290, subdivision (a)(2)(E), the time for determining whether an offense to which a defendant pleads guilty qualifies him for registration is not at sentencing but when the plea is entered. The statute provides for registration “if the court finds at the time of conviction that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”^[6] (Italics added.) A guilty plea “is itself a conviction.” (People v. Chadd (1981) 28 Cal.3d 739 ,748 [ 170 Cal.Rptr. 798 , 621 P.2d 837 ], quoting Boykin v. Alabama (1969) 395 U.S. 238 , 242 [ 89 S.Ct. 1709 , 1711-1712, 23 L.Ed.2d 274 ]; People v. Harris (1987) 191 Cal.App.3d 819 , 824 [ 236 Cal.Rptr. 680 ]; see also People v. Jones (1995) 33 Cal.App.4th 1087 , 1093-1094 [ 39 Cal.Rptr.2d 530 ]; 4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Proceedings Before Trial, § 2139, pp. 2507-2508; compare Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070 , 1073-1074 [ 194 Cal.Rptr. 717 ] [for purposes of civil disabilities flowing from felony conviction, “conviction” includes both guilty plea and judgment entered on plea].) Thus, if appellant refuses to withdraw his guilty plea, the sentencing court cannot properly impose the registration requirement. It may, however, exercise its inherent authority to set aside the plea on its own initiative. (See People v. Thomas (1994) 25 Cal.App.4th 921 , 925-926 [ 31 Cal.Rptr.2d 170 ].) In that event, “. . . the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available.” (§ 1192.5.)

Disposition

The judgment is reversed and the matter is remanded for resentencing. If the superior court considers the punishment contemplated by the plea bargain inadequate, the court is directed to offer appellant the option of