Opinion
E050901 Super.Ct.No. RIF149524
08-09-2011
THE PEOPLE, Plaintiff and Appellant, v. ROBERT VELASQUEZ, Defendant and Appellant.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant. Rex Williams, under appointment by the Court of Appeal, and Kristin Erickson, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS，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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Richard Todd Fields, Judge. Affirmed.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
Rex Williams, under appointment by the Court of Appeal, and Kristin Erickson, for Defendant and Respondent.
This is an appeal by the People, after the trial court dismissed a prosecution against defendant and respondent Robert Velasquez for violation of the sex offender registration laws. Rather, the trial court granted specific enforcement of a 1990 plea agreement, finding that the agreement did not require defendant to register as a sex offender. The People argue that the evidence supporting the trial court's findings was flawed or insufficient, and that its enforcement of the 1990 plea agreement in this proceeding was erroneous. The People further argue that the trial court abused its discretion in dismissing the instant charge pursuant to Penal Code section 1385. We conclude that the trial court's factual finding, that non-registration was an essential term of defendant's 1990 plea agreement, was supported by substantial evidence. We also conclude that the court did not abuse its discretion in dismissing the instant charge. Accordingly, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In 1990, when defendant was 18 years old, he was charged with three offenses based on an assault of his then-girlfriend: rape (§ 261), penetration with a foreign object (§ 289), and sexual battery (§ 243.4, subd. (a)). Defendant entered into a plea bargain; he agreed to plead to the third charge, sexual battery, and the remaining charges would be dismissed. In 1990, section 290 required registration as a sex offender for conviction of a number of specified sex offenses, but section 243.4, sexual battery, was not at that time a registrable sex offense. Defendant initialed or signed many provisions of his plea agreement, but a provision on the form, stating "I understand I must register as a sex offender pursuant to the provisions of . . . section 290," was marked "NA" (for "not applicable"), and defendant did not initial that provision. Defendant pleaded guilty or no contest to the sexual battery charge. He was admitted to probation for 36 months on specified terms and conditions. None of the terms and conditions of his probation in 1990 required registration as a sex offender.
In 1995, section 290 was amended to provide that persons convicted of sexual battery in violation of section 243.4, would be required to register as sex offenders. (Stats. 1995, ch. 85, § 1, p. 211.)
In 1997, after the effective date of the amendment, defendant was convicted of a non-sex-related offense and sentenced to state prison. When defendant was paroled in 1998, he was given a "Notice of Registration Requirement 290 P.C." form, which listed his qualifying conviction as section 289 (penetration with a foreign object), which was actually one of the dismissed charges in the old case. Defendant was told that he was required to register as a condition of parole, and that if he did not register, he would be prosecuted and imprisoned for the offense of failure to register. The record shows that defendant did register as instructed in 1998, and that he continued to register thereafter through October 2008.
The record of defendant's registration shows that he registered the following dates and locations: 1/27/98 at an address on Serfas Club Drive; 6/17/98 at the Serfas Club address; 12/15/98 at an address on Castelar Court; 2/19/99 at the Castelar address; 2/22/00 at an address on Wyngate Drive; 2/12/02 at the Wyngate address; 2/18/03 again at the Wyngate address; 4/17/03 at an address on Smoketree Drive; 8/27/03 at an address on Lima Corte; 2/25/04 at the Serfas Club address; 2/28/05 also at the Serfas Club address; 3/21/06 at the Smoketree address; 2/26/07 at the Smoketree address; 2/26/08 at the Smoketree address; 10/2/08 at the Lima Corte address. Other address entries on defendant's record resulted from information from other sources, such as the Department of Motor Vehicles (DMV), and were not registrations entered by defendant himself. All the addresses were located in Corona, California.
In September 2008, Detective Edwards of the Corona Police Department was a member of a law enforcement task force assigned to perform compliance checks on sex offender registrants. Detective Edwards was assigned to check on defendant's registration compliance. Defendant's registered address at the time was on Smoketree Drive. Defendant's father-in-law, who lived at the Smoketree address, said that defendant did not live there. Through DMV records, Detective Edwards discovered that defendant had registered his vehicles at the Lima Corte address. Detective Edwards went to the residence on Lima Corte, but no one appeared to be home. A neighbor told Edwards that defendant lived at the Lima Corte address, and he had lived there for several years.
Detective Edwards waited for defendant to return home. After an hour or so, defendant and his wife drove up to the house in a black truck. Defendant and his wife went into the house through the garage. Both the black truck and a gray SUV parked in the garage matched the descriptions of defendant's registered vehicles. A short time later, defendant came outside and started to work on the truck. Detective Edwards and his partner approached defendant and identified themselves as police officers. A few moments later, defendant's wife also came outside. At first, defendant's wife said that they did not live at the Lima Corte address, but they actually lived at the Smoketree residence. After Detective Edwards cautioned her against lying, defendant's wife admitted that she and defendant actually lived in the Lima Corte house, and had done so for about four years.
Detective Edwards arrested defendant on a charge of failing to register, in violation of section 290.013.
On the date set for the preliminary hearing, defense counsel filed a motion to contest binding defendant over for trial on the charged non-registration offense. Defense counsel argued that defendant was not properly subject to a requirement to register under section 290, because at the time of his plea in 1990, the offense to which he pleaded was a non-registrable offense. That is, it was a significant term of defendant's plea agreement in 1990 that he would not be subject to the obligation to register as a sex offender for the rest of his life, and defendant should be entitled to enforce that portion of the plea bargain.
Because defendant's motion was filed on the day of the preliminary hearing, the court held it was not timely, and sufficient notice had not been given to the People. The court did not preclude addressing the issue later, however.
At the conclusion of the preliminary hearing, the trial court held defendant to answer on the charge of failing to register at a proper address, but contemplated that defense counsel would file a new motion by the time of arraignment.
A few days after the preliminary hearing, the People filed an opposition to defendant's original motion to contest binding him over for trial on the current registration offense. The People's opposition argued that there was no violation of the plea bargain, because plea agreements are "'deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.'" (Citing People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) The People also argued defendant had failed to provide any evidence to show that relief from the registration requirement was an express or implied term of the plea agreement.
Defense counsel then filed a new motion, under the original 1990 case number (although referencing the instant case), requesting specific performance of the 1990 plea bargain, or, in the alternative, to withdraw his plea. In addition to the plea bargain form (specifically indicating that registration was "NA" or not applicable) and the terms of defendant's earlier probation (which did not include sex-offender registration), defendant provided three additional documents: (1) his own declaration, (2) a declaration of present counsel, and (3) a declaration from defendant's former counsel in the 1990 case. Former counsel averred that the bargain, pleading to a charge of sexual battery only, was beneficial precisely because defendant would not be required to register as a sex offender. Former counsel stated, "This [i.e., relief from registration] was a specific term of his plea bargain that he relied upon, the prosecutor agreed to, and the court accepted."
Defendant himself averred that, "It was extremely important to me not to have to register as a sex offender for the rest of my life. I was only 18 at the time. I was willing to serve extra jail time in exchange for not being required to register as a sex offender and having the more serious charges dismissed. I would never have pled and waived my right to a jury trial, but for this negotiated disposition. I entered my plea and I was never ordered to register as a sex offender by the court."
Defense counsel on the instant charge also filed a declaration outlining plea bargaining at the time of the earlier case: "I am informed and believe that prosecutors and defense attorneys handling cases in this County in 1990 were aware of the aforementioned law [i.e., that registration as a sex offender was not required for a violation of section 243.4, subdivision (a)] and that it played an important factor in negotiated pleas in cases involving sex crimes." In the earlier case, the People were content to offer defendant the opportunity to plead to a non-registrable offense, to dismiss two much more serious charges that would have required registration, and to allow defendant to be offered probation. (Defendant was not promised probation, however; his plea agreement form indicated that he understood his exposure included imprisonment for two, three, or up to four years.)
The People opposed the motion to enforce the plea agreement or withdraw the plea. First, the People argued that defendant could not move, in the instant case, to withdraw his plea in another case; the court was thus without jurisdiction to hear the motion. The People argued, secondly, that there was no violation of the plea bargain in the 1990 case because the change in section 290 could properly be applied retroactively to defendant. Adding section 243.4 to the list of registrable offenses was not a "punishment," and thus did not violate ex post facto principles. The People further argued that there was no evidence that any specific promise to defendant was breached.
The trial court heard argument on the motion and granted specific performance of the 1990 plea bargain, finding that it was an express term of defendant's bargain that he would not be required to register as a sex offender. As a consequence, the court also granted the defense motion, pursuant to section 1385, to dismiss the instant charge of improper registration.
The People filed a notice of appeal, contending the trial court erred in dismissing the charge, and in finding that defendant was not, as a result of the 1990 plea bargain, under an obligation to register as a sex offender for his conviction of sexual battery.
ANALYSIS
I. Non-registration Was an Essential Term of Defendant's Plea Bargain in the 1990 Case
The trial court below found that the incentive of not being required to register for life as a sex offender was an essential, either express or implied, term of defendant's 1990 plea bargain. Although the People argue that the proper standard of review for this matter is abuse of discretion, the trial court's determination was largely based upon its findings of fact and assessments of credibility. We review these issues under the deferential substantial evidence test. That is, we view the matter in the light most favorable to the prevailing party below. (People v. Valli (2010) 187 Cal.App.4th 786, 794, citing Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.) We defer to factual findings supported by substantial evidence (cf. People v. Cissna (2010) 182 Cal.App.4th 1105, 1118), and substantial evidence includes both circumstantial evidence and the reasonable inferences flowing therefrom (In re James D. (1981) 116 Cal.App.3d 810, 813). On the other hand, "the legal import of the facts accepted by the trial court on the [matter at] issue . . . is subject to our de novo evaluation." (Cissna, at p. 1118.)
"It is settled that 'when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.' (Santobello v. New York (1971) 404 U.S. 257, 262 [30 L.Ed.2d 427, 433, 92 S. Ct. 495].) The Supreme Court has recognized that due process requirements apply not only to the taking of the plea, but also to implementation of the bargain. (People v. Mancheno (1982) 32 Cal.3d 855, 860 . . . [specific performance of omitted term of plea bargain calling for diagnostic study].) 'It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' (Ibid.) 'This does not mean that any deviation from the terms of the agreement is constitutionally impermissible.' (People v. Walker (1991) 54 Cal.3d 1013, 1024[,] original italics.) Rather, the variance must be '"significant" in the context of the plea bargain as a whole to violate the defendant's rights.' (Ibid.; see Santobello v. New York, supra, 404 U.S. at p. 262.)" (People v. Arata (2007) 151 Cal.App.4th 778, 786-787 (Arata).)
Here, defendant presented evidence that he was charged with three offenses in 1990, two of which were offenses requiring lifetime registration as a sex offender, and one offense which, at that time, did not require registration. Defendant's plea agreement form contains a specific provision giving notice that registration for life as a sex offender would be required; that provision was marked "NA," or not applicable. In an affidavit, defendant's 1990 counsel averred that he clearly remembered defendant had been offered a plea to the non-registrable count, and dismissal of the remaining, serious, registrable offenses. The attorney advised defendant that the plea deal was advantageous particularly because defendant would not be required to register as a sex offender, and he further averred that the matter had been specifically agreed to by the prosecutor and accepted by the trial court. Defendant's own affidavit also stated that not being required to register was extremely important to him. Finally, defendant's current counsel included an affidavit, on information and belief, describing plea negotiation proceedings at the time of defendant's plea, and indicating that whether an accused would be subject to a registration requirement, or not, played a significant role in plea negotiations.
On the strength of this evidence, the trial court here found that not being subject to registration as a sex offender was an essential term of defendant's plea bargain.
The People raise several points to counter this finding. First, the People argue in effect that the evidence should be disregarded because it was not credible. The People characterize defendant's declaration as self-serving, and insinuate that his former counsel's declaration was not credible because it was belated, it was handwritten, and it was based on unaided recollection of about 20 years earlier. Essentially, the People ask us to reweigh the evidence or reassess the credibility of the declarations. However, on appeal of a substantial evidence issue, "We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 639.)
To the extent the People suggest that the trial court below "[relied] solely on the 'n/a' [i.e., not applicable] notation on provision 13 of the plea form," we reject the suggestion. The evidence before the court to support its finding consisted of much more than the notation on defendant's plea form. As we have made clear, the deferential substantial evidence test requires us to resolve evidentiary conflicts and draw all reasonable inferences, express or implied, in favor of the trial court's decision. (People v. Alexander (2010) 49 Cal.4th 846, 882-883.)
The People further argue that the evidence supports an inference that defendant did not actually or subjectively regard the non-registration term of his plea bargain as essential, because he later complied with the registration requirement for a substantial period of time. Again, the People ask us to assess the weight or credibility of the evidence in a manner contrary to the trial court's findings; this request fails to accord the proper deference to the trial court's factual findings, in derogation of the applicable standard of review. The record shows that, at the time defendant began registering, he had been released from prison on another charge, wholly unrelated to any sex offense. He was given a notice of the requirement to register, which listed the wrong offense (one of the more serious, dismissed, offenses) as the registrable offense. Defendant's declaration averred that, at the time of his release on parole, he initially questioned the registration requirement, but he was told (1) he would not be released on parole unless he complied, and (2) if he did not agree to register, he would be arrested and imprisoned anew for failure to register. Under these circumstances, the trial court could reasonably find that defendant complied under compulsion of the authorities (and based in part on erroneous information). Drawing all inferences, as we must, in favor of the trial court's factual findings, the circumstances of defendant's compliance do not necessarily undermine the character of the non-registration term of his plea bargain as an essential term.
The People urge that the 1990 plea bargain did not incorporate non-registration as an essential term, because plea bargains generally, like other contracts, are deemed to incorporate and contemplate not only the existing law, but also the power of the state to change the law in the future. (People v. Gipson, supra, 117 Cal.App.4th at p. 1070.) Thus, even though the law at the time of defendant's plea did not require sex offender registration for those convicted of sexual battery, that law could be changed in the future and applied to persons so convicted. Because registration as a sex offender, in itself, is not punishment (People v. Castellanos (1999) 21 Cal.4th 785, 796), application of registration requirements to new offenses does not violate the federal and state constitutional bars against ex post facto laws.(Ibid.)
The issue here, however, is not merely whether section 290 could be amended in the future to apply to additional offenses without violating ex post facto guaranties. Rather, the issue is whether applying the registration requirement to defendant violated the terms of his 1990 plea bargain. As stated in Arata, supra, 151 Cal.App.4th 778, "'when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.'" (Id. at p. 786.) In addition, "due process requirements apply not only to the taking of the plea, but also to implementation of the bargain," (ibid.) such that a significant variance of the terms, in the context of the plea bargain as a whole, would violate the defendant's due process rights. (Id. at pp. 786-787.)
For this reason, the People's reliance on People v. Allen (1999) 76 Cal.App.4th 999 (Allen), is misplaced. There, the defendant had been adjudicated responsible for a sex offense as a juvenile. At the time of his adjudication, section 290 required juveniles who had committed such offenses to register as sex offenders only until age 25, when they were beyond custody of the juvenile authorities. The defendant turned age 25 in 1994. In 1995, section 290 was amended to require registration for life, for all juveniles adjudicated guilty of sexual offenses that were discharged or paroled from juvenile commitments on or after January 1, 1986. The question was whether application of the lifetime registration requirement to the defendant violated ex post facto prohibitions. The defendant had received communications from law enforcement authorities to different effects: both that he was not obligated to register, and that he was obligated to register. The defendant received the notice that he was obligated to register after he had received the earlier letter stating that he was not required to register; he had signed an acknowledgment of the new duty to register, and he had actually registered. He thus could not complain of lack of notice, and could not show that he had relied to his detriment on the letter representations that he did not have to register.
The People here urge, in reliance on Allen, that defendant had received notice of his obligation to register, and he had duly registered, such that he could not rely on the plea bargain promise.
Allen did not, however, present any issue of specific enforcement of an essential term of a plea bargain. That defendant had received a more or less gratuitous letter, after the statute had been amended, purportedly excusing him from complying with the changed law; he did not enter his original plea in reliance on any such representation. (Allen, supra, 76 Cal.App.4th at pp. 1003-1004.) By contrast, the promise here was part and parcel of defendant's plea bargain. In addition, the notice that defendant originally received, at the time he was paroled in 1997, of his duty to register, was erroneous. It listed the wrong offense as the registrable offense, and the authorities insisted that defendant register on the basis of that mistake. He initially complied only under compulsion.
As in Arata, supra, the trial court found upon substantial evidence that the nonregistration element was a term of defendant's plea bargain, and that requiring subsequent lifetime registration was a significant variation in the context of the entire plea bargain. The reviewing court found it a close question whether the promise of expungement of the defendant's sex offense conviction (§ 1203.4) was significant in the context of the entire plea bargain, where the plea also promised dismissal of another count and avoidance of a prison term. Such benefits might render relief under section 1203.4 insignificant in some cases, but the court found that the defendant's plea did in fact rest to a significant degree on the promise of eventual expungement; all parties agreed at the outset that it was not a state prison case, and admission to probation was a stepping-stone to eventual relief under section 1203.4. Thus, "the act of clemency in granting probation would be significantly diminished if not accompanied by the eventual reward of section 1203.4 relief." (Arata, supra, 151 Cal.App.4th at p. 788.) The promise of expungement relief was therefore a significant part of the bargain and must be enforced.
Here, although defendant did receive the benefit of dismissal of two other charges, the evidence indicates that he was not promised (though he was ultimately granted) the clemency of probation. He risked significant prison time in exchange for his guilty plea to an offense that did not require sex offense registration. The promise that he would not have to register as a sex offender was significant in the context of the entire plea bargain, and thus the promise must be fulfilled.(Arata, supra, 151 Cal.App.4th at p. 788.)
Finally, the People contend that "mandatory sex offender registration cannot be the subject of plea negotiations," citing People v. Hernandez (2008) 166 Cal.App.4th 641, 647, overruled on another point in People v. Picklesimer (2010) 48 Cal.4th 330, 338, footnote 4, and In re Stier (2007) 152 Cal.App.4th 63, 77 through 78. These cited cases are inapposite. In Stier, the defendant's offense was at all times (at the time of commission of the offense, trial, and judgment) statutorily subject to mandatory registration requirements. Similarly, in Hernandez, the defendant was at all times nominally subject to mandatory registration; he sought habeas corpus relief from the requirement on the basis of equal protection, i.e., that others similarly situated were not statutorily required to register. Here, at the time of defendant's offense and plea bargain, there was no mandatory registration requirement applicable to him. It did not contravene any public law at the time for the parties to agree that defendant would not be subject to mandatory sex offender registration.
For all the reasons stated, we conclude that the trial court's finding—that nonregistration was an essential term of defendant's plea bargain—was supported by substantial evidence.
II. The Trial Court Had Jurisdiction to Consider Defendant's Motion
The People argue that the dismissal of the charge below must be reversed because the trial court did not have jurisdiction to consider a motion for specific performance of the 1990 plea agreement. The People contend that, "[a]lthough the potential may have existed for [defendant] to move in the earlier case to have that court address the propriety of the registration requirement, he had no right to challenge that requirement in the instant case . . . ."
We reject the claim. As defendant points out, he did bring his motion under the original 1990 case number (cross-referencing the instant case number), and styled the motion as one for specific performance of the plea bargain (or, in the alternative, to withdraw his 1990 plea). The 1990 conviction took place in the same court (Riverside County Superior Court) as the instant prosecution. There was nothing more defendant could have done to ensure that his motion was brought in the original case. At oral argument, the People raised the further contention that the trial court lacked jurisdiction to hear defendant's motion, on the theory that defendant should have proceeded exclusively by way of a petition for habeas corpus, citing People v. Picklesimer, supra, 48 Cal.4th 330. Picklesimer is inapposite. There, the California Supreme Court held that mandatory sex offender registrants who seek relief on equal protection grounds, as in People v. Hofsheier (2006) 37 Cal.4th 1185, may not proceed via a freestanding postjudgment motion for relief, but must file a petition for habeas corpus. (Picklesimer, at pp. 335, 338, fn. 4.) Here, defendant does not stand in the same position as the claimants for Hofsheier relief. Defendant, unlike the claimants for equal protection relief in the Hofsheier cases, was not nominally subject to sex offender registration and was never ordered by the court to register. His is not an equal protection claim by a person ordered to register; his claim is that it was a term of his judgment that he would not be required to register. He simply seeks to enforce the terms of the judgment. That the trial court had jurisdiction of the motion does not, however, dispose of the issue whether the dismissal of the charge in the new case was proper. We address that matter next.
III. The Trial Court Did Not Abuse Its Discretion in Dismissing the Charge Pursuant to Section 1385
The instant appeal is from the dismissal of the charge of failure to properly register at defendant's actual residence address. Specifically, the trial court dismissed the instant charge pursuant to section 1385, in the interests of justice. A trial court's decision whether or not to dismiss an allegation or charge in furtherance of justice is reviewed for abuse of discretion. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 373; Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 536; People v. Ortega (2000) 84 Cal.App.4th 659, 666.) Section 1385, subdivision (a), states: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading." (Italics added.) The main purpose of the requirement that the reasons must be specified on the minutes, "is to restrain judicial discretion and curb arbitrary action for undisclosed motives and reasons." (People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1088.) Again the issue is whether the court abused its discretion. "The written specification allows [the reviewing court] to determine whether the trial court's stated reasons justified its exercise of discretion. As a result, [appellate] review is limited to the reasons stated by the trial court. [Citation.]" (Ibid.)
Here, the trial court heard the motion for specific performance of the plea agreement and the motion to dismiss the new charge on the same date at the same time. Two minute orders appear in the record: first, the court granted defendant's motion for specific performance of the plea bargain and stated that "Defendant [was] not required to register." The court then considered the defense motion to dismiss the instant charge and ruled: "Motion Granted [¶] Count(s) 1 dismissed in the interest of justice. (1385 PC)."
The reason for the dismissal is in fact "set forth in an order entered upon the minutes" (§ 1385, subd. (a)), even though it is separated by one page from the ruling under section 1385. The reason for the ruling is that defendant was entitled to specific performance of his plea agreement, and as a promised term of that agreement, he was not required to register.
The People urge that the trial court abused its discretion in dismissing the charge for this reason, because, even if the trial court determined that it was a term of defendant's plea bargain that he was not required to register, defendant had, between the time of the plea bargain and the motion for specific performance of the plea bargain, accepted a duty of registration to which he was nominally subject. By analogy to other cases in which an underlying qualifying conviction places a person at a legal disability, the eventual determination that the underlying conviction was not valid for some reason, does not relieve the person of compliance with legal requirements applicable in the interim between conviction and challenge to the underlying conviction. That is, until defendant took affirmative action to relieve himself of the registration requirements, with which he had complied for several years, he was at least facially subject to them.
In the absence of an essential term of the plea bargain (i.e., that defendant would not be required to register), after the 1995 amendments to section 290, defendant would have been required to register. As we have noted, registration is not punishment, and adding new crimes to the list of those required to register does not violate ex post facto prohibitions. Absent the plea agreement, the People argue, defendant was facially required to register as a sex offender after the amendment in 1995.
In 1997, when he was released on parole from an intervening (non-sex-related) offense, defendant was informed that he now fell within the registration requirements. The notification form erroneously listed one of the dismissed offenses as the registrable offense, but defendant's conviction offense, as of 1997, was by then also within the listed registrable offenses. Defendant initially questioned the applicability of the registration law to him, but he nevertheless registered. He did not seek advice of counsel at that time, to enforce the plea bargain, but continued to register for several years thereafter.
The People contend that, in analogous circumstances, a person who has been convicted of an offense that makes some other conduct unlawful must nevertheless refrain from the proscribed conduct unless and until the underlying conviction is set aside; the person may not attack the validity of the prior conviction in a prosecution for the new offense. (See People v. Harty (1985) 173 Cal.App.3d 493, 499-500 [possible invalidity of underlying felony conviction is not a defense to prosecution for felon in possession of a firearm; the convicted person must first seek to vacate the conviction in the original court]; see also Graham v. Superior Court (1979) 98 Cal.App.3d 880, 890 [life prisoner may be convicted of assault by a life prisoner, even if the underlying conviction may be invalid; it is the prisoner's status on the date of the offense that places the prisoner within that classification]; In re Estrada (1965) 63 Cal.2d 740, 749 [conviction for escape still appropriate even if underlying conviction may be subject to collateral attack].)
More recently, in In re Watford (2010) 186 Cal.App.4th 684, the petitioner sought a writ of habeas corpus after he had been convicted of failure to register as a sex offender, but the underlying sex offense was vacated and would not be retried. The petitioner had been convicted of a sex offense in Massachusetts in 1986. The petitioner moved to California in 2007 and did not register as a sex offender. He was arrested for failing to register in 2008, and he was convicted of that offense. After his failure-to-register conviction, the petitioner moved to withdraw his plea in the old Massachusetts sex case. The Massachusetts court permitted the petitioner to withdraw his plea, and the Massachusetts prosecuting authorities determined not to pursue the 22-year-old case. The petitioner then filed a writ of habeas corpus, contending that his present California imprisonment for failing to register as a sex offender was improper, now that the underlying sex offense had been dismissed. The Court of Appeal held that the petitioner's failure-to-register conviction was proper. On the date of his arrest, he was subject to the registration requirement. "The fact that the predicate offense was later dismissed did not render the 2008 conviction invalid. At the time of his arrest, he was in violation of the law, and he is incarcerated for that violation." (Id. at p. 687.)
The People argue that similar considerations may apply here. After the 1995 amendment to section 290, defendant's conviction offense was within the literal sweep of the statute listing those required to register. Absent the non-registration term of his plea bargain, it would not violate ex post facto prohibitions to add defendant's class of conviction to the list of offenses requiring registration. As of 1997 or 1998, on being paroled for a later unrelated offense, defendant was notified of the registration requirements (although the notice contained mistaken information) and, under compulsion, he in fact registered. Facially, the People now contend, section 290 applied to him; the existence of a specific term of his 1990 plea bargain, promising that he would not have to register, was not obvious, or was separate from the fact of defendant's conviction of a qualifying offense. Defendant complied with the registration requirements for several years. Even if, as a result of the specific terms of the plea agreement, the registration requirement was voidable, as of the date of defendant's arrest he was, to all appearances, subject to the registration requirements. Even though defendant could move collaterally to enforce his plea agreement (or, stated otherwise, he could move to collaterally attack the registration requirements), as of the time of his arrest, he was at least nominally subject to the registration requirements. The Watford court had held that the legal duty to register "applies to any person 'convicted' of one of the enumerated sex crimes in this state or an equivalent crime in another state. The term is unadorned by any modifier, such as 'final judgment' or 'valid.'" (In re Watford, supra, 186 Cal.App.4th at p. 690.) The court further stated that "Regardless of the ultimate impact the dismissal of petitioner's 1986 Massachusetts conviction may have on petitioner's future obligation to register pursuant to section 290, it has no effect on the validity of his existing conviction for violating section 290's registration requirement while he was indisputably subject to it." The People argue that the same could be said here: regardless of the ultimate impact of defendant's motion to enforce his plea bargain agreement, and its impact on his future obligation to register, it did not affect the validity of the present charge for violating the registration requirements.
Defendant responds, however, that the instant case is distinguishable from the authorities relied on by the People, such as Harty (People v. Harty, supra, 173 Cal.App.3d at p. 499 [possible invalidity of an underlying prior felony conviction provides no defense to possession of a concealable weapon by a felon in violation of section 12021]), Graham (Graham v. Superior Court, supra, 98 Cal.App.3d at p. 890 [defendants charged with crimes based on their prisoner status may be convicted of such offenses notwithstanding the invalidity of the conviction upon which the prisoner status was based]), Estrada (In re Estrada, supra, 63 Cal.2d at p. 749 [conviction for escape still appropriate even if underlying conviction may be subject to collateral attack]), Watford (In re Watford, supra, 186 Cal.App.4th at p. 690 [sex offender registration applies, regardless of the subsequent invalidity of the predicate offense, if, at the time of the failure to register, the petitioner was under a legal duty to register]), and similar cases. In each of the cited cases, the defendant was in fact subject to a legal disability, duty or obligation as a result of a conviction at the time that he or she violated the statute imposing the legal disability, duty or obligation.
The gist of defendant's claim here is different. He contended that, as part and parcel of his plea bargain, he was promised that he would not be subject to the duty or obligation of registration as a sex offender. In the other cases, there was no suggestion that the defendant had been made a specific promise that he or she would not be subject to the disability, duty or obligation ensuing from the status of convicted felon, incarcerated prisoner, or sex offender, as the case may be. Here, defendant had been made such a promise by the government. He moved for specific performance of that promise, which the trial court granted.
Plea bargains are interpreted according to contract law principles. (Civ. Code, § 1635; People v. Toscano (2004) 124 Cal.App.4th 340, 344; Brown v. Poole (9th Cir. 2003) 337 F.3d 1155, 1159-1160.) If "a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled" (Santobello v. New York, supra, 404 U.S. at p. 262; accord Arata, supra, 151 Cal.App.4th at p. 786), and "„[i]t necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.'" (Arata, at pp. 786-787.) Continued prosecution for the offense of improper registration, when the trial court has determined that a specific term of defendant's plea bargain was that he would not have to register at all, may reasonably be construed as an act by an officer of the state in violation of the promise, which would effectively deprive defendant of the substantive benefit of his bargain. The trial court could reasonably conclude that the only way to fulfill the original promise, or to provide any remedy, was to dismiss the new charge in the interest of justice. Defendant had been promised that he would not be required to register, and the trial court found expressly on the minutes that defendant was not required to register. Consequently, the reason for dismissal was plain on the face of the minutes, and it did not constitute an abuse of discretion to dismiss the current charge.
DISPOSITION
The order of dismissal is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.