P. v. Klipp

Filed 4/7/10 P. v. Klipp CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

Defendant Joshua Landon Klipp entered a negotiated plea of no contest to sexual penetration of a person under the age of 18 years (Pen. Code, 289, subd. (h); all further statutory references are to this code), oral copulation with a person under the age of 18 years ( 288a, subd. (b)(1)), and domestic battery, a misdemeanor ( 243, subd. (e)(1)) in exchange for dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.

Sentenced to state prison for an aggregate term of two years eight months, defendant appeals. He challenges the order requiring him to register as a sex offender. We will affirm.

FACTS AND PROCEDURAL HISTORY

Sections 289, Subdivision (h) and 288a, Subdivision (b)(1) Offenses

Defendant convinced the 17-year-old victim and her father that defendant was a music promoter, could help develop the victims music career, and that if she moved in with him, there would be a chaperone. In March 2008 the victim moved in with defendant but there was no chaperone. Over the next week, defendant touched the victims breasts and vagina, digitally penetrated her vagina on several occasions, and involved her in a three-way with another woman. Defendant also orally copulated the victim, and at his request, she attempted to orally copulate him.

Section 243, Subdivision (e)(1) Offense

On March 24, 2008, defendant sexually assaulted the mother of his three children, by restraint, forcibly fondling her genitals. He had called her to come to his house and to bring medicine for their son.

Plea

The written plea form reflects that registration as a sex offender would be [d]iscretionary with [the] court pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier) and section 290. The parties agreed that sex offender registration was not mandatory for offenses defined by sections 288a, subdivision (b)(1) and 289, subdivision (h).

At the entry of plea hearing, the prosecutor noted that while registration was not mandatory, she would be seeking that defendant be ordered to register as a sex offender. The trial court advised defendant that as a consequence of his plea to the offenses, sex offender registration was possible.

Sentencing

In denying probation, even if eligible, and imposing sentence, the trial court found that the manner in which defendant committed the offenses against the 17-year-old victim demonstrated criminal sophistication; defendant conducted an e-mail wooing or grooming for months and promised a chaperone, which was predatory in nature. The court found the victim was particularly vulnerable, the crime was premeditated, and defendant took advantage of a position of trust. The court ordered defendant to register as a sex offender and remanded defendant. Defense counsel then requested that registration be deleted for the offense of oral copulation based on Hofsheier. The judge interrupted defense counsel and stated that he was familiar with the case, but there is also a digital penetration charge, and that case doesnt cover that. The prosecutor added, And its also within the courts discretion. The court then stated, I am going to deny your request. I understand it, and I am going to deny it. (Italics added.)

DISCUSSION

Defendant contends that the court violated the plea agreement in imposing mandatory sex offender registration when his offenses made registration discretionary with the court. He does not seek to withdraw his plea. Instead, he seeks specific enforcement of the plea agreement, arguing remand is required. In the event this court finds defense counsels objection insufficient, defendant claims counsel rendered ineffective assistance.

Section 290.006 (formerly 290, subd. (a)(2)(E)) provides: Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.

In Hofsheier, the defendant entered a plea of guilty to oral copulation with a 16-year-old girl and was ordered to register as a sex offender under the mandatory registration requirements. On appeal, the defendant argued mandatory registration violated equal protection laws because a person convicted of unlawful sexual intercourse with a minor was not subject to mandatory lifetime registration. Hofsheier agreed, remanding to the trial court with directions to determine whether the defendant was subject to discretionary lifetime registration. (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1194, 1208-1209.) The court must first find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings, and second, state the reasons for requiring lifetime registration as a sex offender. (Id. at p. 1197.)

Although Hofsheier concerned the offense of oral copulation with a 16-year-old girl, its holding equally applies to sexual penetration with a person under the age of 18 years. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1371.) The People do not contend otherwise.

Defendant did not object to the trial courts statement as inadequate. He thus forfeited the issue for review. (People v. Bautista (1998) 63 Cal.App.4th 865, 868, 870-871.) Anticipating that this court would so conclude, he claims counsel rendered ineffective assistance. The courts findings in imposing sentence indicate the courts thinking and rationale for imposing sex offender registration. The court found that defendants conduct of grooming the victim for months and promising a chaperone was predatory in nature. Thus, the trial court obviously believed that defendants offenses were committed as a result of sexual compulsion or for purposes of sexual gratification and that his conduct required lifetime registration to protect society from a predator. When reminded that registration was discretionary, the trial court stated that it understood. Any request by defense counsel for further explanation would have been futile and thus did not constitute ineffective assistance. (People v. Frye (1998) 18 Cal.4th 894, 985, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)[1]

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND , P. J.

NICHOLSON , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The recent amendments to section 4019 do not operate to modify defendants entitlement to credit, as he was required to register as a sex offender. ( 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009-2010, 3rd Ex. Sess., ch. 28, 50.)