(San Mateo County Super. Ct. No. SC068620)
The opinion of the court was delivered by: McGuiness, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...