P. v. Solomon

Filed 10/24/06 P. v. Solomon CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant David Solomon appeals from a judgment imposed after his plea of no contest to unlawful sexual intercourse with a minor. He contends his agreement to register as a sex offender is contrary to public policy, and that the court’s failure to order a probation report was prejudicial error. We agree with his second point and remand for resentencing.

BACKGROUND

Because there was no trial, preliminary hearing, or probation report, the record contains little about the underlying facts. Defendant was charged with two counts of unlawful sexual intercourse when he was over 21 years old with a minor under the age of 16 (Pen. Code, § 261.5, subd. (d))^[1] and inflicting great bodily injury in the commission of one of those counts. (§ 12022.7, subd. (a).) Pursuant to a negotiated disposition, defendant entered a no contest plea to an added third count of unlawful sexual intercourse with a minor more than three years younger than him pursuant to section 261.5, subdivision (c). The plea included dismissal of the remaining charges, a lower term of 16 months in state prison with 470 days of credit, and registration as a sex offender. Defense counsel stipulated to a factual basis for the plea based on “reports, along with other things. There was a scientific test that also acknowledged,” presumably that defendant was the father of the victim’s child.^[2]

DISCUSSION

I. The Registration Requirement

Defendant’s minor victim is the mother of his child. He argues that requiring him to register as a sex offender for violating section 261.5 violates public policy because it might harm his ability to support the child and stigmatize his “familial unit[].” He is estopped by his plea bargain from pursuing this claim. “We will not allow defendant to challenge the very judicial action to which he agreed in entering his plea bargain. A criminal defendant who receives the benefit of his plea bargain should not be allowed to seek to improve the bargain on appeal. [Citations.] Even if the court’s sentence exceeded its jurisdiction, a defendant cannot complain of getting what he bargained for so long as the court had fundamental jurisdiction.” (People v. Vera (2004) 122 Cal.App.4th 970, 983; People v. Webb (1986) 186 Cal.App.3d 401, 412.)

Although defendant acknowledges the estoppel rule, he contends public policy considerations preclude its application here. (See People v. Webb, supra, 186 Cal.App.3d at p. 412 [whether a defendant should be estopped “ ‘depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy’ “].) Specifically, relying upon language in People v. Hofsheier (2006) 37 Cal.4th 1185, defendant argues that the public policy against burdening families with sex offender registration warrants reaching the merits here despite his agreement to registration requirement. He misreads the case.

While the penalty for certain sex offenses includes mandatory registration as a sex offender, whether to require registration for convictions of section 261.5, like defendant’s, is left to the discretion of the sentencing court. (§ 290, subd. (a)(2)(E).) Hofsheier holds it a violation of equal protection to impose a mandatory registration requirement on defendants convicted of oral copulation with a minor while subjecting those convicted of unlawful sexual intercourse with a minor, like defendant, to discretionary registration. (People v. Hofsheier, supra, 37 Cal.4th at pp. 1191-1192, 1197-1206.) Rejecting the possibility of pregnancy as a rational basis for making registration discretionary only for section 261.5 violations, the majority reasoned as follows: “[I]f the possibility of pregnancy is a reason for avoiding mandatory registration of persons convicted of sexual intercourse, the same reason for avoiding mandatory registration applies to persons convicted of voluntary oral copulation, because those persons may have also engaged in intercourse (whether they were convicted of it or not) and a pregnancy may have resulted. In other words, the possibility of pregnancy, and the concern that requiring the father to register for life as a sex offender could stigmatize the mother or child, is a strong argument for giving a court discretion to reject registration for persons convicted of either voluntary sexual intercourse or voluntary oral copulation.” (Hofsheier, supra, at pp. 1204-1205, italics added; see id. at pp. 1213-1214 (Baxter, J., dissenting).) The Court therefore remanded to the trial court to determine, in its discretion, whether the defendant should be required to register. (Id. at p. 1208.) Hofsheier thus undermines, rather than supports, defendant’s contention that discretionary registration violates public policy.^[3] The general rule applies and defendant is estopped on appeal from challenging the registration requirement to which he agreed.

II. Failure To Order A Probation Report

Defendant next contends the court erred in sentencing him without first ordering a probation report. The People assert that a report was not required and, if it was, the failure to obtain one was not prejudicial.

Section 1203, subdivision (b)(1) states: “Except as provided in subdivision (j), if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.”

The People contend this provision is inapplicable because, although defendant was statutorily eligible for probation, his plea bargain precluded it. We disagree. Whether a defendant is eligible for probation is determined by “statutes identifying the types of offenses or offenders who are ineligible to receive it.” (People v. Welch (1993) 5 Cal.4th 228, 233.) We are aware of no authority, and the People cite none, for their proposition that a defendant who is statutorily eligible for probation and enters into a plea bargain including a prison term may be sentenced without a probation report. To the contrary, the Advisory Committee comment to the implementing rule of court states that “waivers of the report and requests for immediate sentencing are discouraged, even when the defendant and counsel have agreed to a prison sentence.” (Italics added.) (Advisory Com. com., California Rules of Court, 23 pt. 3 West’s Ann. Codes, Rules (2003 ed.) foll. rule 4.411, p. 52.) This comment cannot be squared with the People’s position that a negotiated sentence dispenses with the need for a probation report. We conclude the court’s failure to order a report violated section 1203, subdivision (b)(1).

The People next contend defendant’s plea bargain and waiver of arraignment and time for sentencing “effectively” waived preparation of a probation report. Not so. “The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecution and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that there shall be no waiver unless the court consents thereto.” (§ 1203, subd. (b)(4); People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)

“Because the alleged error implicates only California statutory law, review is governed by the Watson harmless error standard.” (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) So, we will analyze whether defendant was prejudiced by the court’s failure to obtain and consider a probation report.

Defendant correctly maintains his agreement to the sentence does not render the lack of a report harmless error because the court retained authority to withdraw its approval of the plea bargain at the sentencing hearing. (§ 1192.5.) He contends a probation report “might have revealed to the judge facts showing the inappropriateness of requiring lifetime sex offender registration in this case” and revealed two misstatements in the change of plea form that might have affected the plea negotiations.^[4] We agree the error cannot be characterized as harmless. The purpose of a probation report is to provide the court with information about the current offense and the defendant’s prior history and record. (See § 1203, subd. (b)(1); Cal. Rules of Court, rule 4.411(d).) “Probation officers’ reports are used by judges in determining the appropriate length of a prison sentence and by the Department of Corrections and Rehabilitation, Division of Adult Operations in deciding upon the type of facility and program in which to place a defendant, and are also used in deciding whether probation is appropriate.” (Cal. Rules of Court, rule 4.411(d).) Because there was no report, and very little in the record concerning the facts of the offense or defendant’s history, “we cannot know ‘what a current report, made by a professional probation officer, might have disclosed, or in what light such a report would have presented [defendant] as of the time of the hearing.’ “ (People v. Mercant (1989) 216 Cal.App.3d 1192, 1196, disapproved on other grounds in People v. Bullock (1994) 26 Cal.App.4th 985, 987-990.) In light of the Legislature’s unequivocal directive that the trial court avail itself of the guidance of a probation report before pronouncing judgment, the absence of a report or equivalent source of information bearing on the appropriateness of registration (see People v. Dobbins, supra, 127 Cal.App.4th at pp. 182-183), and the relevance and utility of the probation report to consideration of defendant’s custody and placement (Cal. Code Regs., tit. 15, § 3075.1 (Intake Processing)), the error requires remand for a new sentencing hearing.

DISPOSITION

The matter is reversed and remanded to the trial court with directions to order a probation report and hold a new sentencing hearing.

_________________________

Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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^[1] All further statutory references are to the Penal Code.

^[2] If not clear from our order of October 20, 2005, we deem defendant’s request for a certificate of probable cause, as well as his notice of appeal, timely filed.

^[3] As a factual matter, that the victim has obtained a stay-away order against defendant belies any suggestion that he and the child’s mother have formed a “familial unit.”

^[4] Line 10, which he initialed, reads: “I understand that conviction of the charge(s) makes me ineligible for a grant of probation. (When probation ineligibility allegations are charged and admitted.)“ Line 26, which defendant did not initial, reads: “I understand that the charge to which I am pleading guilty/no contest may be charged as a prior conviction in the future and subject me to increased penalties. [for use on other ‘priorable’ offenses].” Defendant asserts these are misstatements because (1) he was not probation ineligible, and his prison term could support a subsequent prior prison term enhancement under section 667.5, subdivision (b). The People deny that these were inaccurate. We need not resolve this dispute because it is irrelevant to our harmless error analysis.