(Super. Ct. No. CM28182) APPEAL from a judgment of the Superior Court of Butte County, Sandra L. McLean and Steven J. Howell, Judges. Affirmed.
The opinion of the court was delivered by: Robie , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In this opinion we explain the procedure a trial court must follow if it chooses to impose sex offender registration on a defendant whose crime does not require registration.
The law allows a court to impose sex offender registration "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. . . ." (Pen. Code,*fn2 § 290.006, italics added.)
Here, the defendant pled guilty to child endangerment, the trial court imposed sentence but suspended execution of that sentence, placed her on probation, and told her if she violated that probation, it would order her to register as a sex offender. She violated probation and the court then ordered her to register.
The procedure the trial court followed was wrong. It failed to decide at the time it imposed sentence whether defendant would have to register. If a trial court wants to use the specter of sex offender registration as a basis for encouraging a defendant to comply with the terms of probation (as it appears the court here wanted to do), there is a way to do so without violating section 290.006. A trial court may suspend imposition of sentence and place a defendant on probation, thereby leaving any decision to impose sex offender registration to the time the court sentences the defendant. The court's procedural error does not require reversal here, though, because any argument regarding the court's error was forfeited or invited because counsel acquiesced to the court's procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Criminal Conduct
Defendant Toni Rae Allexy was a 38-year-old cheerleading coach and mother of a cheerleader when she invited to her house a 14-year-old football player (the victim) to whom she was attracted and encouraged him to drink alcohol with her and his friends.
After getting the victim drunk and becoming "'beyond drunk'" herself, defendant followed the victim into her computer room where she drew her initials in lipstick on the victim's cheek. She then took the victim's football jersey off of his body, put it on herself, and took a picture of herself sitting in the victim's lap. She sent the picture to the victim's ex-girlfriend with a text message saying, "'Don't you wish you were here?'"
Defendant then insisted (over her husband's objections) on driving the victim and his friends home in her truck. She made the victim sit in the front seat with her and the three others sit in the back. While driving, defendant put "her hand down [the victim's] pants on his penis," and for three to five minutes she "strok[ed] [the victim's penis] in an up and down motion as she drove them home." The victim "did not want 'this lady's hand in [his] pants.'" He "'kept glancing back at [one of the other teenagers who had asked to sit in the front]'" because the victim "'knew [defendant] would stop if [somebody else] got in the front seat.'" But defendant told that teenager "to stay in the back seat [sic]." The victim kept telling that teenager to "get up front with them and when [that teenager] finally climbed into the front seat[, defendant] removed her hand from [the victim's] pants and gave [the other teenager] this 'weird look.'"
After being molested by defendant, the victim fell into a "'tail spin.'" He used to "ha[ve] lots of positive friends and was doing well in school." After he disclosed the molest, he was "ridicule[d] by his friends," called a "'liar,'" and "beat[en] up by other students at school." "As a result[,] he quit school, began drinking alcohol and using drugs," and ran away "from his mother's home." His self-esteem is "basically non-existent."
Court Proceedings In Front Of The First Judge*fn3
Defendant pled no contest to felony child endangerment and the court dismissed five other counts against her, including committing a lewd act on the victim, with the understanding the court could consider the facts behind the dismissed counts at sentencing.
The court sentenced defendant to four years in prison, suspended execution of that sentence, and placed her on probation for four years with the understanding that if she "fail[ed] to comply with the terms and conditions of probation, she will be required to register as a sex offender." After the court made that order, defense counsel stated, "I think the Court has made it abundantly clear. We had anticipated that would be one of the alternatives the Court would consider."