THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 27, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SIONE MOTUAPUAKA, DEFENDANT AND APPELLANT.
(San Mateo County Super. Ct. No. SC068620)
The opinion of the court was delivered by: McGuiness, P.J.
P. v. Motuapuaka
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Sione Motuapuaka pleaded guilty to a variety of offenses as part of a plea deal that resulted in the dismissal of all counts that would have required him to register as a sex offender pursuant to the mandatory registration requirements of Penal Code section 290.*fn1 On appeal, he contends the trial court erred in requiring him to register as a sex offender, arguing that the court improperly based its discretionary registration order on a statute that applies only to persons convicted in out-of-state, federal, or military courts. We shall reverse the order requiring appellant to register as a sex offender and remand the matter for the trial court to exercise its discretion under the appropriate statute.
FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2009, appellant attempted to rob a liquor store employee at gunpoint.*fn2 The following day, appellant stole two television stands from a Target store and threw a lit firecracker during the commission of the offense to distract store security. One day later, on January 5, 2009, appellant robbed an employee of a flower shop while armed with a shotgun. On January 16, 2009, appellant robbed a clerk at a donut shop while armed with a gun. Then, on January 28, 2009, appellant armed himself with a shotgun and robbed an employee of a sandwich shop.
Appellant's crime spree culminated on February 8, 2009, when he armed himself with a handgun and robbed Jane Doe, an employee at a Valero gas station in San Bruno. During the course of the robbery, appellant forcibly moved Ms. Doe into the store's cooler, where he tied her hands together with a cord and put grey duct tape over her eyes and mouth. He forced Ms. Doe to her knees and forcibly made her orally copulate him. When a customer entered the store, appellant left the cooler. He went to the front of the store, interacted with the customer, and took a box of condoms from the shelf. After about 20 minutes, appellant returned to the cooler, pulled his pants down, and placed a condom over his penis. He again forced appellant to orally copulate him. He then said to her, "All I want is the money," and removed the duct tape and untied her hands. Appellant brought Jane Doe back inside the store, where she opened the cash register for him. He took money from the register and cigarettes from the shelf. Then, he instructed Ms. Doe to go into the bathroom. Appellant grabbed some grocery items and left the store.
After being arrested, appellant confessed to all of the robberies and to the sexual assault that occurred during the gas station robbery.*fn3 He also admitted that he was armed during the offenses.
In an 24-count amended information filed February 5, 2010, the San Mateo County District Attorney charged appellant with four counts of second degree robbery (§ 212.5, subd. (c)), one count of attempted second degree robbery (§§ 212.5, 664), seven counts of burglary (§ 460, subd. (b)), one count of petty theft (§ 484), five counts of being a felon in possession of a firearm (§ 12021), one count of false imprisonment (§ 236), one count of kidnapping (§ 207, subd. (a)), one count of kidnapping to commit robbery (§ 209, subd. (b)(1)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), and one count of assault with a handgun (§ 245, subd. (a)(2)).) The information also contained numerous enhancing allegations, including, among others, that appellant was armed and personally used a firearm during the commission of the burglaries and false imprisonment (§§ 12022, subds. (a)(1), (b)(1)), that he committed the kidnapping for the purpose of committing the sexual offenses (§ 667.8, subd. (a)), and that he had a prior violent and serious felony conviction as a juvenile (§§ 667, subd. (a), 1170.12) and had suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)).
Pursuant to a negotiated disposition, appellant pleaded guilty to the following charges with the understanding that he would serve a 60-year prison term: two counts of burglary, four counts of robbery, false imprisonment, kidnapping, and assault with a firearm. In addition, appellant admitted that he was armed during the course of one of the burglaries, that he personally used a firearm in the commission of one of the robberies and during the kidnapping, and that he had suffered a prior conviction that was both a strike as well as a serious felony conviction. The prosecutor agreed to dismiss the remaining counts and allegations, including the forcible oral copulation charges.
The court sentenced appellant to serve 60 years in prison. In addition, the court ordered appellant to register as a sex offender pursuant to section 290.005, subdivision (b). Appellant filed a timely notice of appeal.
Appellant contends the court erred in requiring him to register as a sex offender because the court relied upon an inapplicable statute. He requests that the matter be remanded to the trial court to reconsider the discretionary decision to require appellant to register as a sex offender under the proper statute, section 290.006.
During the sentencing hearing, the prosecutor requested that the court "exercise its discretion under [section] 290.005(b) and find . . . that [appellant] is ordered . . . to register as a sex offender for life in that the court finds that the kidnapping committed against Jane Doe . . . was committed as a result of defendant's sexual compulsion or for purposes of sexual gratification." Appellant's counsel objected, stating that appellant agreed to a sentence that was ten years longer than he would have otherwise accepted in order to avoid being convicted of a sex offense.*fn4 The prosecutor responded that "this particular subsection of [section] 290 enables the Court in its discretion to order sex registration where there is an aspect or element of a convicted offense that meets the criteria . . . as a result of a defendant's . . . sexual compulsion or for the purposes of sexual gratification."
The prosecutor also explained that all parties anticipated the People would seek to require appellant to register as a sex offender, stating that "part of the reason the People didn't require a plea to [the oral copulation] charge was [because] there was an understanding that sexual registration would be part of [the] sentence." Appellant's counsel confirmed "[t]here was an understanding the People would ask for [sex offender registration]" although appellant did not agree as part of his plea bargain to register as a sex offender.
The prosecutor described appellant's crimes to the court as a string of armed robberies that culminated in "an armed robbery where an innocent victim . . . was bound, blindfolded, and taken into an isolated area of the store and . . . forced, blindfolded to orally copulate the defendant at gunpoint" with an interruption in time between two separate instances of forced oral copulation. Appellant's counsel countered by stating there was only "one allegation of sexual misconduct."
The prosecutor noted that the original information contained two counts of forced oral copulation and argued that registration was justified, stating, "it's clearly appropriate for this Court to have great concern about the nature of the crimes he committed such that ordering registration as a sex offender . . . would be an entirely appropriate application in the Court's discretion . . . ." Appellant's counsel then objected to "any such [registration] order on the basis that it's not warranted by the counts of conviction."
The court concluded by ordering "pursuant to Penal Code Section 290.005(b) that the defendant will register as a sex offender for life in that the Court finds that the kidnapping committed against Jane Doe on February 8th, 2009 . . . was committed as a result of defendant's sexual compulsion or for the purposes of sexual gratification. [The] Court makes that finding."
B. Statutory framework of Sex Offender Registration Act
The purpose of the Sex Offender Registration Act (§ 290 et seq.) " ' " 'is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]' " ' [Citations.] In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures. [Citation.]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) " 'The Legislature also reaffirmed "it is necessary to provide for continued registration" to effectuate the statutory purpose of protecting the safety and general welfare of the public. [Citations.]" [Citation.] 'It is intended to promote the " 'state interest in controlling crime and preventing recidivism in sex offenders.' " [Citation.]' [Citation.]" (In re Stier (2007) 152 Cal.App.4th 63, 78.)
Section 290 requires that any person who has been convicted of an offense listed in subdivision (c) of that section must register as a sex offender. Because registration is mandatory for persons convicted of an offense listed in section 290, subdivision (c), the duty to register cannot be avoided through a plea bargain or through the exercise of judicial discretion. (People v. Hofsheier, supra, 37 Cal.4th at p. 1196; People v. McClellan (1993) 6 Cal.4th 367, 380.)
When the mandatory registration provisions of section 290, subdivision (c) are inapplicable, the court retains discretion to order sex offender registration pursuant to section 290.006, which provides: "Any person ordered by any court to register pursuant to the [Sex Offender Registration] 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."
"Consequently, to implement the requirements of [section 290.006*fn5 ], the trial court must engage in a two-step process: (1) it must 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 (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (People v. Hofsheier, supra, 37 Cal.4th at p. 1197.) Thus, the mere fact that a court makes a finding that an offense was committed as a result of sexual compulsion or for purposes of sexual gratification is not sufficient to justify the imposition of a sex offender registration requirement under section 209.006. The court must proceed to the second step of the analysis and consider whether registration would serve the purposes of the Sex Offender Registration Act.
It is undisputed that the prosecution and the court here did not cite or rely on the discretionary registration statute, section 290.006. Instead, the statute cited by the prosecution and relied upon by the court to order appellant to register as a sex offender is section 290.005, subdivision (b), which provides that the following persons shall register as sex offenders pursuant to the Sex Offender Registration Act: "(b) Any person ordered by any other court, including any state, federal, or military court, to register as a sex offender for any offense, if the court found 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 Attorney General concedes that section 290.005 applies only to persons who have suffered convictions in "foreign courts," which refers to courts other than California state courts, including federal courts and the courts of other states. (See In re Rodden (2010) 186 Cal.App.4th 24, 34 [registration for "out-of-state" convictions governed by section 290.005].) However, the difference between section 290.005, subdivision (b) and section 290.006 is not limited to the fact that one statute addresses out-of-state convictions and the other concerns California convictions. Unlike section 290.006, which requires the sentencing court to make certain factual findings and then exercise its discretion in determining whether to order sex offender registration, the registration requirement under section 290.005, subdivision (b) is not discretionary and does not require the California sentencing court to make any factual findings concerning the nature of the offense. Instead, registration is mandatory under section 290.005, subdivision (b) if it is shown that an out-of-state court ordered the defendant to register as a sex offender and the out-of-state court found at the time of conviction or sentencing that the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification.
To summarize, section 290.005, subdivision (b) applies only to persons who have suffered out-of-state convictions and mandates sex offender registration when the statute is satisfied. By contrast, section 290.006 applies to persons convicted in California courts, requires the California sentencing court to make a finding that the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification, and gives the court discretion to order registration.
The Attorney General contends that appellant forfeited his claim of error by failing to object at the time of sentencing, pointing out that appellant's counsel did not object on the ground the court relied on an inapplicable statute. The Attorney General cites the principle that a defendant is precluded from raising for the first time on appeal the sentencing court's failure to properly make or articulate its discretionary sentencing choices. (See People v. Scott (1994) 9 Cal.4th 331, 353.)
An exception to the forfeiture rule applies when a sentence is "unauthorized." (People v. Scott, supra, 9 Cal.4th at p. 354.) "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (Ibid.) Generally, a sentence is "unauthorized" if it "could not lawfully be imposed under any circumstance in the particular case." (Ibid.) "[C]laims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.)
The Attorney General contends that appellant's registration requirement does not constitute an unauthorized sentence, arguing that the court had discretion to impose registration under section 290.006. While it is true the court had discretion to impose registration under section 290.006, it did not do so. Instead, it imposed registration under section 290.005, subdivision (b), a statute that is plainly inapplicable. Mandatory registration under section 290.005, subdivision (b) could not lawfully be imposed under any circumstance in this case. Put another way, the court exceeded its jurisdiction by imposing registration under a statute that is inapplicable. (See People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 485-486 [court acts in excess of its jurisdiction by relying on wrong statute at sentencing].)
Further, although appellant's counsel did not specifically object to the registration order on the ground the court was relying on an inapplicable statute, his objection was nonetheless technically correct and preserved his claim for appeal. He objected that the registration order was "not warranted by the counts of conviction." A registration order based upon section 290.005, subdivision (b) is, in fact, not warranted by the charges of which appellant was convicted. Accordingly, we reject the Attorney General's claim that appellant forfeited his claim of error.
D. The error is not harmless
Because the court exceeded its jurisdiction and imposed an unauthorized sentence under section 290.005, subdivision (b), the matter must be remanded for the court to properly exercise its discretion under the applicable statute, section 290.006.
Even if the sentence were considered authorized because it theoretically could have been imposed under section 290.006, we would still conclude that the court's error in failing to state its reasons for imposing registration was prejudicial. A sentencing error is prejudicial when " ' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation.]' [Citation.]" (People v. Avalos (1984) 37 Cal.3d 216, 233.)
The Attorney General claims any error was harmless because the court would have imposed registration under section 290.006. We disagree. The statute upon which the trial court relied, section 290.005, subdivision (b), does not require the court to weigh the reasons for and against registration. Indeed, nothing in the transcript of the sentencing hearing suggests the court was aware that it had discretion to impose sex offender registration after finding that the kidnapping was committed as a result of a sexual compulsion or for purposes of sexual gratification. Ordinarily, when the record is silent, the trial court is presumed to have understood the scope of its discretion and followed the applicable law. (See Evid. Code, § 664; People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) That presumption is inapplicable here, however, because the record affirmatively demonstrates that the court was mistaken about the scope of its discretion. The court relied upon an inapposite statute that afforded it no discretion to refrain from ordering registration. Under these circumstances, we simply cannot assume the court understood the scope of its discretion under section 290.006, a statute the court never cited or relied upon.
Further, there is nothing in the record to suggest the court would have imposed registration if it had properly weighed the reasons for and against registration. Instead, the record simply reflects that the court based its registration decision on a finding that appellant committed the kidnapping offense as a result of a sexual compulsion or for the purposes of sexual gratification. Thus, the court only addressed the first prong of the two-part inquiry under section 290.006. It failed to consider the second part of the inquiry, which requires the court to consider whether registration would serve the purposes of the Sex Offender Registration Act.
Moreover, it is difficult to imagine what reason the court might have had for imposing discretionary registration in this case. Because appellant was 37 years old at the time of sentencing and will be required to serve 85 percent of his 60-year sentence, he will be released, at the earliest, when he is 88 years old. Thus, appellant's 60-year sentence is likely to be a life sentence, as the trial court recognized at the time it accepted appellant's guilty plea. As noted above, the purposes of the Sex Offender Registration Act are to facilitate police surveillance of persons who are likely to reoffend, to allow members of the public to take protective measures against such persons, and to protect public safety. It is unclear how a registration requirement serves these purposes in a case in which the registrant will very likely spend the rest of his life in prison. Accordingly, we conclude it is reasonably probable the court would have reached a different conclusion but for its error.
Finally, we observe that we reach this result reluctantly. As a practical matter, it makes little difference whether appellant is required to register as a sex offender given that he will likely serve the rest of his life in prison. We are hesitant to require the court and the parties to engage in what might be perceived as an idle act. Nevertheless, we have no choice but to reverse the trial court's order, which is premised upon an inapplicable statute that is substantively very different from the statute the court should have applied.
The judgment is modified to strike the requirement that appellant register as a sex offender. The matter is remanded to the trial court for further proceedings pursuant to Penal Code section 290.006 in order to allow the trial court to exercise its discretion whether to require appellant to register as a sex offender. In all other respects, the judgment is affirmed.
We concur: Siggins, J. Jenkins, J.