P. v. Superior Court

Filed 8/14/06 P. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 APEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings in mandate after Superior Court of Imperial County imposed and suspended sentence, Annie M. Gutierrez, Judge. Petition granted.

Clyde Edwin Posey (Posey) pleaded guilty to failure to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(A); further statutory references are to this code unless noted). Over the People's objection, the trial court sentenced Posey to state prison for two years, but suspended this sentence and placed him on two years' probation with a condition of confinement of time already served plus credits, amounting to 10 days. No local custody time was imposed.

The People now seek review by writ of mandate, contending section 290, subdivision (g)(2) mandated a sentence that included, as a condition of any probation or suspension of sentence, that the person serve at least 90 days in a county jail. (§ 1238, subd. (d); Code Civ. Proc., § 1086.) We agree with the position taken by the People and grant the petition and remand the matter for resentencing with directions to reinstate the subject count and to permit Posey to withdraw his plea of guilty if he so elects.

INTRODUCTION

The underlying facts are undisputed. In or about July 1990, Posey was charged and convicted of a violation of section 288, subdivision (a). He was sentenced to and served an eight-year prison term. As such, he is a person who is required to register under section 290, subdivision (a), based on a felony conviction.

Posey, now a 56-year-old transient, receives social security income based on disabled status and has for some years resided in motel rooms. When he moved from one motel to another, he did not reregister with authorities. In connection with a registration enforcement operation, officers attempted to contact him at his last known address and discovered he was no longer residing there. Through information obtained from his acquaintances, Posey was apprehended. He was charged with a violation of section 290, subdivision (a)(1)(A) (failing to register as a sex offender upon change of residence). On August 10, 2005, Posey pled not guilty to the count in the information.

According to the declaration of his trial counsel, on August 15, 2005, the trial court held an unreported chambers conference with counsel for Posey and the responsible deputy district attorney, indicating that in exchange for a change of plea, Posey would be sentenced to the two-year midterm, suspended, and he would be placed on probation, conditioned on time served. Posey agreed to the terms as presented to him by trial counsel. He then changed his plea and pled no contest to the single count charged.

Accordingly, on August 15, 2005, Posey was sentenced to state prison for two years, with sentence suspended, and he was placed on two years' probation with condition of time served and credits amounting to 10 days. On the record, in response to objections by the deputy district attorney, the trial court explained that Posey's failure to reregister appeared to have been an oversight.

The People filed a notice of appeal. On October 11, 2005, the People filed this petition for writ for mandate. In October 2005, this Court appointed counsel for Posey and ordered that the People's appeal (D047304) be considered with the petition for writ of mandate (D047288). We then issued an order to show cause why the relief requested in the petition should not be granted.

The related appeal was subsequently dismissed and that remittitur issued.

DISCUSSION

Section 1238, subdivision (d) allows the People to seek review of an order granting probation, using the mechanism of a petition for a writ of mandate or prohibition. Under this section, such review of any grant of probation shall also include review of any order underlying the grant of probation. (Ibid.)

A trial court's failure to impose a mandatory element of a sentence is considered to be a jurisdictional error that is subject to correction by an appellate court. (See People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)

The main question before us is whether a writ of mandate should issue to correct the trial court's failure to comply with section 290, subdivision (g)(2), which by its terms (second paragraph of section 290, subdivision (g)(2)) seemingly requires the court to impose a sentence that includes, as a condition of any probation or suspension, the requirement that Posey serve at least 90 days in county jail. We also address a related issue about the effect of the plea bargain entered into under these circumstances.

Currently, section 290, subdivision (g)(2) sets forth the consequences of a willful failure to register by any person who is required to register, based on a felony conviction or juvenile adjudication, or who has a prior conviction for the offense of failing to register under this section and again willfully violates the requirements of this section. Such violation is a felony offense to be punished by imprisonment in the state prison for 16 months, or two or three years. (Ibid.) In the second paragraph of this current subdivision (g)(2), the statute continues, "If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail. The penalty described in this paragraph shall apply whether or not the person has been released on parole or has been discharged from parole." (Ibid.; italics added.)

In People v. Prothero (1997) 57 Cal.App.4th 126, 130 (Prothero), the appellate court analyzed a prior but similar version of section 290, subdivision (g) with the purpose of ascertaining and giving effect to legislative intent. It conducted an examination of then-existing section 290, subdivision (g)(3) (i.e., its second paragraph), for the purpose of determining if it created a wobbler offense. (Prothero, supra, at pp. 131-134.) Its analysis is also instructive here, because it deals with the same "mandatory minimum paragraph" that is the subject of this petition. In other words, this same "county jail" language is now found in section 290, subdivision (g)(2), and both versions of the subdivision dealt with the same concept: "If probation is granted or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the person serve at least 90 days in a county jail . . . ." (Italics added.)

As discussed in Prothero, supra, 57 Cal.App.4th 126, this same "mandatory minimum paragraph" (the former second paragraph of former section 290, subdivision (g)(3)) is a mandatory sentencing provision that indicates a clear legislative intent that a sentencing court must impose a mandatory minimum term of confinement when a violation of the registration statutes is established. The court explained that the "mandatory minimum paragraph" did not change the effect of the immediately preceding language that established the penalty for such a violation:

"Our inquiry into legislative intent must necessarily begin with the language of the statute. When language of a statute is clear on its face, its meaning should be given effect. [Citation.] Subdivision (g)(2) and the first paragraph of subdivision (g)(3) are remarkable for their clarity. In subdivision (g)(2) the Legislature has declared in terms as clear as the English language permits that any person required to register based on conviction of the offenses enumerated in subdivision (g)(2), including section 288, 'who willfully violates this section is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.' Admittedly, the clarity of subdivision (g)(2) does not extend to the second paragraph of subdivision (g)(3) wherein the Legislature sought to impose a mandatory minimum term of confinement. The question is whether the awkward phrasing used in that paragraph undermines the clear expression of legislative intent in the preceding paragraphs. We think not." (Prothero, supra, 57 Cal.App.4th at p. 130.)

From this analysis, we may extrapolate to the current version of section 290, subdivision (g)(2), second paragraph ("mandatory minimum paragraph"), and conclude that it also represents a clear statement of legislative intent that a sentencing court, faced with an established violation of the registration statutes, must impose a mandatory minimum term of confinement in county jail, as a condition of granting probation or suspension of sentence. This language simply does not afford the trial court discretion to determine whether or not at least 90 days in county jail must be served, as a condition of the probation or suspension, even in light of the trial court's interpretation of the particular circumstances here. Rather, the statute is mandatory in nature.

Where an erroneous or unlawful sentence is imposed pursuant to a plea bargain, the remedy is to remand with directions to reinstate the counts charged and to permit defendant to withdraw his plea of guilty if he so elects. (People v. Anderson (1982) 129 Cal.App.3d 491, 494-495.) This procedure must be followed here, as acknowledged by Posey in his appointed counsel's points and authorities in opposition to the People's petition.

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate the judgment and sentence imposed on August 15, 2005, and to hold a new hearing for resentencing subject to (1) the views expressed in this opinion regarding the mandatory nature of section 290, subdivision (g)(2), regarding conditions of probation; and (2) our direction that the trial court shall reinstate the subject count and permit Posey to withdraw his plea of guilty if he so elects. The opinion will be final as to this court 10 days after the date of filing. (Cal. Rules of Court, rule 24(b)(3).)

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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