Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC1252536.
McGuiness, P.J.
Appellant Harold Isaac Brown pleaded guilty to oral copulation of a minor, a violation of Penal Code section 288a, subdivision (b)(1). On appeal, he challenges the trial court’s order requiring him to register as a sex offender, contending the court imposed the requirement based on a mistaken belief that registration was mandatory under section 290. The Attorney General concedes the error and agrees with appellant that the matter must be remanded to the trial court to exercise its discretion to consider whether sex offender registration should be ordered under section 290.006.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural History
In a six-count felony complaint filed on March 20, 2007, the Marin County District Attorney charged appellant with two counts of orally copulating an unconscious person (§ 288a, subd. (f)(1)), three counts of orally copulating a minor (§ 288a, subd. (b)(1)), and one count of attempted sodomy of a minor (§§ 286, subd. (b)(1), 664). The alleged victim was 17 years old at the time of the charged offenses. On July 18, 2007, pursuant to a plea agreement, appellant pleaded guilty to one count of orally copulating a minor. In exchange for the plea, the district attorney dismissed the remaining charges against the appellant without a Harvey waiver. Mandatory sex offender registration was not a condition of the plea, and the court did not advise appellant he would have to register as a sex offender at the time it accepted his plea.
People v. Harvey (1979) 25 Cal.3d 754.
At a sentencing hearing held on October 31, 2007, the trial court denied probation and sentenced appellant to the middle term of two years in state prison. The court ordered appellant to register as a sex offender under section 290, reasoning as follows: “The nature of this charge, Mr. Brown, violation of Penal Code section 288a[, subd.] (b)(1), requires you register as a sex offender, and that is a lifelong registration unless there’s a change in the law. That’s the state of the law today.”
Appellant filed a timely notice of appeal on November 19, 2007.
Discussion
The sole issue raised on appeal is a challenge to the court’s order requiring appellant to register as a sex offender pursuant to section 290. Appellant contends the trial court erred when it imposed a registration requirement based on the mistaken belief that registration is mandatory for a person convicted of violating section 288a, subdivision (b)(1). The Attorney General concedes that the registration order must be stricken and the matter remanded to the trial court for a determination under section 290.006 of whether appellant should be required to register as a sex offender. The Attorney General’s concession is well taken.
Although appellant waived his right to appeal, the waiver did not encompass sentencing errors. Furthermore, the appeal is not precluded by the failure to obtain a certificate of probable cause. Because mandatory sex offender registration was not a condition of appellant’s plea, the appeal is on a ground that arose after entry of the plea and does not affect the plea’s validity. (See Cal. Rules of Court, rule 8.304(b)(4)(B).)
In People v. Hofsheier (2006) 37 Cal.4th 1185, 1192-1193 (Hofsheier), our Supreme Court held that subjecting a defendant to mandatory registration under section 290 as a consequence of a conviction for orally copulating a minor (§ 288a, subd. (b)(1)) in a case where the victim is 16 or 17 years old would deny the defendant the equal protection of the laws. The defendant in Hofsheier was convicted of violating section 288a, subdivision (b)(1) and was required to register as a sex offender under the mandatory provision of section 290. The victim was 16 years old at the time of the offense. The defendant argued he was denied the constitutionally guaranteed equal protection of the laws because a person convicted of unlawful sexual intercourse with a minor (§ 261.5) under the same circumstances was not subject to mandatory registration. (Hofsheier, supra, at p. 1192.) The court agreed with the defendant, concluding “that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons who, like defendant here, were convicted of voluntary oral copulation with a minor of the age of 16 or 17, but not of someone convicted of voluntary sexual intercourse with a minor of the same age, violates the equal protection clauses of the federal and state Constitutions.” (Hofsheier, supra, at p. 1207, fn. omitted.) Hofsheier compels us to vacate the trial court’s order imposing mandatory sex offender registration.
However, appellant may still be ordered to register as a sex offender in the court’s discretion. (See Hofsheier, supra, 37 Cal.4th at pp. 1208-1209.) Pursuant to section 290.006, a court may require a defendant to register as a sex offender under section 290 even if the offense of which the defendant is convicted is not one for which registration is mandatory “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.” In such a case, the court must “state on the record the reasons for its findings and the reasons for requiring registration.” (§ 290.006.) Both appellant and the Attorney General agree that a remand is required here to allow the trial court to consider whether to impose discretionary sex offender registration under section 290.006.
Disposition
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 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.