Opinion
A128320
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. DEWAYNE COLBERT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. SC162442)
Dewayne Colbert appeals from the judgment of conviction entered on his guilty plea to one count of unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)), and one count of contributing to the delinquency of a minor by a lewd act (§ 272, subd. (a)(1)). He was granted probation and required to register as a sex offender. Colbert argues that the order for sex offender registration must be limited to the duration of his probation, or stricken. We agree with the People that this appeal must be dismissed for Colbert's failure to obtain a certificate of probable cause.
Subsequent statutory references are to the Penal Code.
I. BACKGROUND
San Rafael police officer Elisha Adams testified at the preliminary hearing that on December 26, 2008, he approached Jane Doe, who was walking in an area of San Rafael frequented by prostitutes. Doe was wearing tight-fitting clothes and appeared to be 13 or 14 years old. Doe eventually told Adams that she was "tired of this," had run away from her home in Washington, and had just turned 13. Doe said she was staying with Colbert in a San Rafael motel room, which he rented with money she gave him from her earnings as a prostitute. She had worked with Colbert for a week. When she told Colbert how old she was he said that her age "didn't matter because she was already working." After she returned to the motel room on December 25, gave Colbert the money she had earned that day, and took a shower, he forced her to orally copulate him and had sexual intercourse with her against her will. A motel occupant heard a woman in the room Doe and Colbert occupied screaming late on Christmas night, "leave me alone," and male voice answering, "shut up, bitch. You ain't shit." Colbert was 19 years old at the time.
Colbert was charged in an amended information with unlawful sexual intercourse and contributing to the delinquency of a minor by a lewd act. He executed a guilty plea form, placing his initials next to the printed statement: "I understand that as a further consequence of my plea of GUILTY, I will be required to register with local police agencies as a(n) sex offender as required by Penal Code Sections(s) 290." The word "will" in this statement was crossed out and replaced by the word "may." Colbert also initialed the portion of the form that states, "no promises will be made regarding sex offender registration," and at the plea hearing he confirmed that there were no such promises. Colbert pleaded guilty to unlawful sexual intercourse and "the crime of contributing to the delinquency of a minor by a lewd act in violation of section 272 (a)(1) of the Penal Code."
The presentence report indicated that Colbert had undergone a psychological evaluation, had taken the Static-99 test, "an actuarial measure of risk for sexual offense recidivism," and his threat to re-offend was "in the Moderate-Low Risk Category." Addressing whether "defendant should be required to register as a sex offender for the rest of his life," the probation officer wrote, "[g]iven the results of the Static 99, the psychological evaluation and the defendant's lack of a prior record, it appears that forcing him to register would be unduly harsh."
At the sentencing hearing, the prosecutor addressed the sex offender registration issue as follows: "Under Penal Code Section 290.006, this offense is a discretionary registration if the Court finds at the time of the conviction that the person committed the offence [sic]as a result of sexual compulsion or for purposes of sexual gratification. [¶] . . . [¶] He got a great deal. He did much more than what he pled to. He raped a 13 year old. He forced a 13 year old to perform oral sex on him, and he pimped her out. And it's for that conduct that he should be required to register." The defense endorsed the probation officer's view that sex offender registration would not be appropriate in this case.
The court imposed a two-year prison term on the section 261.5 offense and a consecutive one-year county jail term on the section 272 offense, suspended execution of the sentence, and placed Colbert on probation for five years. The court went on to state: "I have struggled with it, but I do think it's appropriate to require you to register as a sex offender pursuant to Penal Code Section 290. [¶] The terms and conditions that I just imposed are the terms and conditions of your probation." Colbert did not object to the registration requirement.
Colbert did not request a certificate of probable cause in connection with his appeal. Defense counsel checked the box on the notice of appeal stating: "This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
II. DISCUSSION
Colbert argues that the sex offender registration requirement was imposed in this case as a condition of probation, and thus it is effective for five years, rather than the rest of his life. He contends that, if lifetime registration is required here, the obligation must be stricken because he was not afforded an opportunity to have a jury make the findings necessary to impose it. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348; 147 L.Ed.2d 435].)
Both arguments rest on the assumption that Colbert's section 261.5 and 272 offenses are not among those listed in section 290, subdivision (c) as crimes for which lifelong sex offender registration is mandatory. Colbert reasons that, because section 290, subdivision (c) does not apply, registration could be required here only under section 290.006, which gives the court discretion to order lifetime registration when it finds that the offense was committed "as a result of sexual compulsion or for purposes of sexual gratification," otherwise it could only be imposed as a condition of his probation. (See People v. King (2007) 151 Cal.App.4th 1304, 1308-1309.) Colbert submits that a probation condition was imposed here for a number of reasons, including the court's failure to make findings required under section 290.006 (see ibid),and the court's failure to advise him, before accepting his plea, that the plea could result in his lifelong registration (see People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481). He asserts that "[t]his is not an attack on the validity of the plea but, on the contrary, an argument that the plea would be in violation of due process if the order for registration were construed as an order for lifetime registration under section 290.006." Similarly, Colbert's argument that Apprendi applies to findings required for lifelong registration presumes that registration is not necessarily required for the offenses he committed, and thus that "registration constitutes punishment greater than the ordinary maximum" for those offenses.
The problem for Colbert is that his guilty plea admitted an "offense involving lewd or lascivious conduct under Section 272," which is among those listed in section 290, subdivision (c) for which lifelong sex offender registration is mandatory. Therefore, even if the parties, the probation officer, and the court below believed otherwise, the court had no discretion to order anything short of lifetime registration in this case. "Section 290 'applies automatically to [its] enumerated offenses, and imposes on each person convicted a lifelong obligation to register.' [Citations.] Registration is mandatory [citation], and is 'not a permissible subject of plea agreement negotiation.' " (Wright v. Superior Court (1997) 15 Cal.4th 521, 527; see also People v. Hofsheier (2006) 37 Cal.4th 1185, 1196 [mandatory duty to register "cannot be avoided through a plea bargain . . . or through the exercise of judicial discretion"]; People v. Hernandez (2008) 166 Cal.App.4th 641, 647, disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th 330, 338-339, fn. 4.)
Accordingly, this appeal is not based on noncertificate grounds that arose after entry of the plea and do not affect the plea's validity. (People v. French (2008) 43 Cal.4th 36, 43.) Because lifelong registration was a mandatory consequence of Colbert's plea, his objection to that requirement is a challenge to the validity of the plea itself, and the appeal must be dismissed for Colbert's failure to obtain a certificate of probable cause.
III. DISPOSITION
The appeal is dismissed.
Siggins, J. We concur: McGuiness, P.J. Jenkins, J.