(Super. Ct. No. CRF10290)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Raymond Easmon, Jr., pleaded no contest to sexual penetration of a minor under the age of 18. The trial court denied probation, sentenced him to three years in prison, and ordered him to register as a sex offender.
Defendant contends (1) the government breached an implicit term of the plea agreement requiring it to obtain a psychological report prior to sentencing; (2) the denial of probation was an abuse of discretion and denied defendant a fair hearing; (3) the trial court abused its discretion in requiring defendant to register as a sex offender; and (4) defendant was entitled to a jury trial and proof beyond a reasonable doubt on the factual predicates necessary to impose sex offender registration.
We will affirm the judgment.
On May 9, 2010, the 16-year-old victim was sleeping in her room when defendant (the victim's stepfather) entered and turned on the light. The victim was wearing "cheer" shorts, a white t-shirt, a sweat shirt, and panties. She pretended to sleep while defendant removed her blankets.
Defendant took pictures of the victim with his cell phone. The victim felt defendant rub her buttocks and thigh while she was lying on her stomach. Defendant then moved the victim's shorts and panties to one side and inserted his finger into her vagina for about 20 seconds. He took another picture of the victim before leaving the room. The victim texted a report of the incident to a friend as soon as defendant left.
When questioned by authorities, defendant denied the incident and said that he considered the victim like a daughter. Defendant's cell phone contained six deleted photographs which were taken on the day of the incident.
Defendant pleaded no contest to sexual penetration of a minor under the age of 18. (Pen. Code, § 289, subd. (h).)*fn1 The trial court denied probation, sentenced defendant to three years in prison, and ordered him to register as a sex offender. (§§ 290, 290.006.)
Defendant contends the government breached an implicit term of the plea agreement requiring it to obtain a psychological report prior to sentencing.
During a hearing on April 25, 2011, the trial court explained to defendant its understanding of the plea offer. The trial court said the offer was for defendant to plead to count 2, a felony violation of section 289, subdivision (h), sexual penetration of a minor under the age of 18, which carried a possible prison sentence of 16 months, 2 years or 3 years. The trial court added that a favorable psychological report pursuant to section 288.1 was a requirement for a grant of probation.*fn2 The trial court confirmed that defendant did not have any "probation limiters" and continued: "So you could be placed on probation for up to five years and serve up to 365 days in the county jail, or you could serve up to three years in state prison. It would depend upon the sentencing." Defendant told the trial court that he understood the plea offer and wished to accept it. Defendant then entered his no contest plea.
Defendant also initialed and signed a plea form. The form said that if defendant pleaded no contest, the trial court could sentence him as follows: up to three years in state prison, or probation for five years with up to 365 days in county jail. The form said it was an open plea, defendant understood the maximum and minimum sentence for the charges and allegations set forth in the form, and no one made any other promises to him about what sentence the trial court might order. The form said defendant had a full opportunity to discuss the consequences of the plea with his attorney.
The probation report initially recommended probation for three years. But the probation department subsequently informed the trial court that, pursuant to section 1203.067,*fn3 a psychological report pursuant to section 288.1 had to be completed before probation could be granted. Because a psychological report had not been completed, the probation department could not make a probation recommendation. The probation department ...