The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a plea bargain, defendant Draco John Flama pled no contest to oral copulation with a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1) -- count 3) in exchange for the dismissal of charges of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c) -- count 1), sodomy of a person under 18 (Pen. Code, § 286, subd. (b)(1) -- count 2), and sexual penetration with a foreign object upon a person under 18 (Pen. Code, § 289, subd. (h) -- count 4).*fn1
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with Kelly, we will provide a summary of the offenses and the proceedings in the trial court.
Defendant was sentenced to state prison for three years. The court imposed restitution fines of $600 in accordance with Penal Code sections 1202.4 and 1202.45, a criminal conviction assessment of $30 (Gov. Code, § 70373), a court security fee of $40 (Pen. Code, § 1465.8), and ordered defendant to register as a sex offender under Penal Code section 290. The court credited defendant with 78 days of actual custody and 78 days for conduct, for a total presentence custody credit of 156 days.
Between October 1 and 8, 2010, defendant had a 17-year-old girl stay with him for a week. During that time, she engaged in an act of oral copulation with him on school grounds, "among other things." The incident was witnessed by a third party.
Defendant appealed and we appointed counsel to represent him. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief, and defendant has done so.
In defendant's supplemental brief, he takes issue with statements made by the prosecutor and the probation officer that were used by the court in exercising its discretion to order sex offender registration. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1192-1193 [sex offender registration for violation of Penal Code section 288a, subd. (b)(1) is discretionary, not mandatory].)
Defendant cites the following statements made by the prosecutor: (1) "He is a self[-]described deviant, is a sadistic slave master. He's created this persona for himself of Draco Flama, uses the Internet to befriend under age females." (2) "I believe that the Court's intended ruling of an upper term in state prison is not only appropriate, it is necessary in order to protect society from this sexual predator." The probation officer, in her ...