ORIGINAL PROCEEDINGS. Writ of Habeas Corpus. Granted. Super. Ct. No. CM029493.
The opinion of the court was delivered by: Sims, J.
CERTIFIED FOR PUBLICATION
In this habeas corpus proceeding, we address whether California's sex offender registration requirement may be imposed on the basis of facts gleaned from a probation report prepared after a guilty plea was entered in Kentucky state court.
Petitioner Connie Ann Rodden seeks to vacate her guilty plea to failure to register as a sex offender in California within five days of coming into, or changing residence within, a county. (Pen. Code, §§ 290, subd. (b), 290.005, subd. (a), 290.018, subd. (b).)*fn1 She argues that the least adjudicated elements of her Kentucky conviction do not satisfy those of any California offense for which sex offender registration is required.
After reviewing the petition, informal opposition, and reply, as well as the appellate record in petitioner's direct appeal,*fn2 we issued an order to show cause to be returned to this court. After considering the return and traverse, we shall issue the writ.
As we shall explain, an out-of-state conviction requires a defendant to register as a sex offender in California only when the least adjudicated elements of the offense satisfy all of the elements of a crime enumerated in subdivision (c) of section 290 or when the foreign jurisdiction required the defendant to register as a sex offender. Here, the least adjudicated elements of the offense for which petitioner was convicted in Kentucky do not meet all of the requirements for any registerable offense in California. Consequently, petitioner did not unlawfully fail to register as a sex offender, and her guilty plea to the same must be vacated.
FACTUAL AND PROCEDURAL HISTORY
Petitioner's conviction in Kentucky
In July 2003, petitioner entered a guilty plea in Kentucky state court to "Facilitating Sodomy, first-degree" as defined by section 506.080 of the Kentucky Revised Statutes. The Kentucky statute provides in pertinent part: "A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime."
A post-plea probation report recounted statements made by petitioner to the police during their initial investigation of the crime. Petitioner told the police that her live-in boyfriend had repeatedly expressed sexual interest in her seven- and 11-year-old daughters. For three months, the boyfriend persistently asked petitioner for permission to have sex with the girls. Petitioner steadfastly refused.
The boyfriend began to wrestle with the older daughter behind closed doors. Although this made petitioner mad, the boyfriend continued. One day, petitioner saw the boyfriend put his penis into her daughter's mouth. Despite petitioner's anger, the boyfriend and older daughter continued to wrestle. A few months later, the daughter reported to petitioner that the boyfriend had made her suck on his penis again. When confronted, the boyfriend admitted the molestation but promised that it would never happen again. However, several months later, the boyfriend molested the daughter again.
A final judgment was entered in petitioner's Kentucky case in June 2004. The judgment states, in part: "Upon inquiry by the Court, the defendant and her counsel advised the Court that they had been provided with a copy of the written report of the presentence investigation of the defendant, prepared by the Division of Probation and Parole, and that they had been provided with a copy of the comprehensive sex offender presentence evaluation of the defendant prepared by the Department of Corrections [or an approved provider as defined in KRS 17.55(3)], and that the defendant was fully familiar with the factual content and conclusions contained in both reports, and that neither the defendant nor the defendant's counsel wished to controvert any factual data contained in either of the reports."
Based on the information contained in the presentence reports, the Kentucky court concluded "that imprisonment is not necessary for the protection of the public and the defendant is a suitable candidate for probation." In June 2004, the Kentucky court placed petitioner on probation. Petitioner was not required to register as a sex offender in Kentucky.
Petitioner's conviction for failing to register as a sex offender in California
Petitioner moved to California during her probationary period, as allowed by an interstate compact between Kentucky and California. Petitioner's California probation officer informed her that the Kentucky conviction required her to register as a sex offender in California. Petitioner refused to register as a sex offender.
In September 2008, the Butte County District Attorney filed a felony complaint charging petitioner with various offenses including failure to register as a sex offender within five days of moving to the county. (§§ 290, subd. (b), 290.005, subd. (a), § 290.018, subd. (b).) Petitioner entered a plea of not guilty.
At the conclusion of a preliminary hearing, the trial court held petitioner to answer on the felony charge of failure to register as a sex offender. The court also held defendant to answer on misdemeanor charges of child abuse (§ 273a, subd. (a)), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), and possession of a device used to smoke a controlled substance (Health & Saf. Code, § 11364, subd. (a)).
During the preliminary hearing, petitioner's counsel argued that the Kentucky offense did not qualify as an offense for which registration as a sex offender is required by subdivision (c) of section 290. However, the trial court declared that petitioner's Kentucky conviction was equivalent to a violation of section 266j,*fn3 for which sex offender registration is mandatory.
In April 2009, petitioner entered a guilty plea to misdemeanor child abuse and felonious failure to register as a sex offender. The trial court subsequently sentenced petitioner to three years in state prison for the felony and a concurrent year in jail for the misdemeanor.
In May 2009, petitioner filed a notice of appeal indicating that the appeal was based on the sentence or other matters occurring after entry of the plea. In July 2009, petitioner filed a second notice of appeal that stated an intent to challenge the plea's validity. Along with the second notice of ...