P. v. Heupel

Filed 7/6/06 P. v. Heupel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and orders of the Superior Court of San Diego County, William M. Mudd and Lisa A. Foster, Judges. Judgment affirmed, orders reversed and matter remanded with directions.

Anthony E. Heupel pleaded guilty to five counts of misdemeanor indecent exposure. The trial court accepted the plea, suspended imposition of sentence, and placed him on probation, but did not order him to register as a sex offender. (Pen. Code, § 290, all undesignated statutory references are to this code.) After new unrelated charges were filed against him, another judge revoked Heupel's probation and then reinstated it, granting the People's motion to modify a term of probation to impose the sex offender registration condition.

Heupel contends the second judge lacked jurisdiction to modify a term of his probation and, because the judge that accepted his plea failed to advise him that sex offender registration was a possible condition of probation before he pleaded guilty, the condition should be stricken. We disagree with Heupel's former assertion and conclude that even if the court erred in failing to make the advisement, he was not prejudiced by the omission. Accordingly, we affirm the judgment.

Heupel also contends, and the Attorney General concedes, that the probation order incorrectly states he pleaded guilty to seven counts of indecent exposure. Accordingly, we reverse the probation order and other minute orders and direct the trial court to modify the orders to properly reflect the plea.

FACTUAL AND PROCEDURAL BACKGROUND

Between May 28 and October 15, 2002, in the University Towne Center area of San Diego, Heupel exposed himself to multiple female victims in apartment complex elevators, at public bus stops or from his vehicle. In some instances, Heupel exposed himself from a distance and in other instances he approached the victim and masturbated. The police arrested Heupel after several victims identified him in a photographic lineup and he was charged with five counts of false imprisonment and seven counts of indecent exposure (SCD171635, the indecent exposure case).

Heupel pleaded guilty to five counts of misdemeanor indecent exposure and the prosecutor dismissed the remaining charges. The trial court suspended imposition of sentence, placed Heupel on three years' probation and ordered him to serve 186 days in local custody. The court imposed certain probation conditions, including that Heupel obey all laws, but took under submission the question of whether he should be required to register as a sex offender under subdivision (a)(2)(E) of section 290, which allows a trial court to order registration if it finds that the person "committed the offense as a result of sexual compulsion or for purposes of sexual gratification." The trial court subsequently indicated that it would not require Heupel to register as a sex offender based on defense counsel's representation that he was attending counseling.

In September 2004, Heupel was arrested for assault with a deadly weapon and throwing a substance at a vehicle (SCD186058, the assault case) and in November 2004 he was arrested for second degree burglary, receiving stolen property, possession of a controlled substance and possession of narcotics paraphernalia (SCD187074, the burglary case). In December 2004, the trial court formally revoked Heupel's probation in the indecent exposure case based on the preliminary hearing testimony in the assault case and set the matter for sentencing.

In April 2005, a jury found Heupel guilty in the assault case and the following month he pleaded no contest in the burglary case. Before the sentencing hearing on these cases and the probation revocation, the People filed a motion to modify probation to impose the registration requirement based on our high court's pronouncement that mandatory sex offender registration was not punishment under either the state or federal constitution. (In re Alva (2004) 33 Cal.4th 254, 292; People v. Noriega (2004) 124 Cal.App.4th 1334, 1342-1343.)

In June 2005, a different trial judge addressed all three matters in a single sentencing hearing. In the burglary and assault cases, the trial court suspended the imposition of sentence, placed Heupel on three years' probation and ordered him to serve 365 days in custody with credit for a total of 315 days. The court also reinstated probation in the indecent exposure case with the additional term that Heupel would be required to register as a sex offender, indicating that registration was appropriate given the nature of the offenses and based on a change in the law.

DISCUSSION

Section 290, subdivision (a)(1)(A) imposes a mandatory registration requirement on persons convicted of certain sex-related crimes, including misdemeanor indecent exposure. At the time of Heupel's initial sentencing, however, existing California Supreme Court authority indicated that mandatory registration constituted punishment within the meaning of California's constitutional proscription against cruel and unusual punishment as it applied to misdemeanor lewd conduct. (In re Reed (1983) 33 Cal.3d 914, 922, overruled by Alva, supra, 33 Cal.4th at p. 292.)

Neither the parties nor the trial court mentioned the statutory registration requirement at the change of plea hearing. Nonetheless, when the trial court initially placed Heupel on probation in the indecent exposure case, it took under submission the question of whether, as a condition of probation, Heupel should be required to register as a sex offender. At that time, the court clearly advised Heupel that it would require registration if he "screw[ed] up" while on probation. Ultimately, however, the trial court declined to impose the registration requirement as a probation condition.

Heupel contends that the registration condition must be stricken because the trial court declined to impose this condition when it initially placed him on probation and a different judge erred by later imposing the condition as one superior court judge may not overrule another even if the previous ruling was erroneous. While we agree with this general legal proposition (In re Alberto (2002) 102 Cal.App.4th 421, 427-428), the second judge imposed the new probation condition after Heupel had been re-arrested on new charges and probation formally revoked. (§ 1203.2, subd. (a).) After revoking probation, the trial court had the statutory authority to modify or terminate probation. (§ 1203.2, subd. (b); People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

Thus, the second judge did not overrule the first judge by imposing the registration condition; rather, the second trial judge had discretion to continue Heupel on probation under the modified condition that he register as a sex offender and Heupel does not argue that the trial court's decision amounted to an abuse of discretion. Because the second judge modified Heupel's probation after revocation, we reject Heupel's argument that imposition of the registration requirement amounted to a retroactive application of Alva.

Heupel next argues that the registration requirement must be stricken because the trial court failed to advise him of the requirement at the time of his plea. We conclude that even if the court erred in failing to make the advisement, Heupel was not prejudiced by the omission.

A defendant who pleads guilty must be advised of the direct consequences of the plea (In re Moser (1993) 6 Cal.4th 342, 350-351) and the sex offender registration requirement is included within the consequences of a guilty plea that must be communicated to a defendant when the plea is entered because of its "unusual and onerous nature." (In re Birch (1973) 10 Cal.3d 314, 321.) Our high court has subsequently reiterated that the registration requirement is a plea consequence of which a defendant must be informed. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; People v. McClellan (1993) 6 Cal.4th 367, 376.) The People submit such advisements are no longer required in light of more recent authority holding that sex offender registration is regulatory in nature and not punishment for purposes of the state and federal ex post facto clauses. (People v. Castellanos (1999) 21 Cal.4th 785, 796, 799.) We need not resolve this issue because we conclude that the missing advisement did not prejudice Heupel.

When an advisement is not given, a defendant is entitled to relief only if there is a reasonable probability of prejudice; i.e., that he would not have entered the guilty plea had he known of this consequence. (People v. McClellan, supra, 6 Cal.4th at p. 378.) Here, Heupel pleaded guilty to five misdemeanor indecent exposure charges in exchange for the dismissal of two indecent exposure charges and five charges of felonious false imprisonment and the agreement that he would receive probation. As noted by the trial court at the sentencing hearing after revocation, Heupel acted aggressively during the false imprisonment incident resulting in these counts being charged as felonies. Presumably, defense counsel advised Heupel of the potential sentence he faced if convicted of these charges.

Moreover, although Heupel objected to the registration requirement as burdensome, he never argued below that the missing advisement would have changed his decision to plead guilty and he expressly states on appeal that he does not want to withdraw his guilty plea. On this record, it is not reasonably probable that Heupel would have chosen to go to trial and obtained a better result if the trial court had told him that he was subject to sex offender registration as a probation condition. Accordingly, we conclude that Heupel has failed to meet his burden of establishing prejudice. (People v. McClellan, supra, 6 Cal.4th at p. 378.)

Finally, the parties agree, and we concur, that portions of the record in the indecent exposure case incorrectly indicate that Heupel pleaded guilty to more than five counts of indecent exposure; specifically, the December 15, 2003 minute order and order granting probation and the minute orders dated March 26, 2003, November 22, 2004, December 21, 2004, March 1, 2005, April 1, 2005, April 21, 2005, April 26, 2005 and April 28, 2005. As such, these orders are reversed and the trial court is ordered to correct the orders to reflect that Heupel pleaded guilty to five counts of misdemeanor indecent exposure. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188 [a court has the inherent power to correct clerical errors in its records].)

DISPOSITION

The judgment is affirmed, the orders are reversed and the matter is remanded to the trial court to make the appropriate corrections to the orders.

McINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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