Opinion
2d Crim. No. B231748
12-19-2011
THE PEOPLE, Plaintiff and Appellant, v. DAVID EUGENE GREY, Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F389073)
(San Luis Obispo County)
The People appeal from the trial court's order terminating defendant David Eugene Grey's duty to comply with the registration and reporting requirements of the Sex Offender Registration Act (the Act) (Pen. Code, § 290 et seq.). We accept Grey's concession that the order was unauthorized. Accordingly, we reverse.
All further statutory references are to the Penal Code.
STATEMENT OF THE CASE
The relevant facts are derived from the settled statement filed by the parties in accordance with rule 8.346 of the California Rules of Court. In 2007, Grey was charged with committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) and the lesser included offense of misdemeanor annoying or molesting a child, in violation of section 647.6, subdivision (a). A jury convicted Grey of the lesser charge. Imposition of sentence was suspended and Grey was placed on three years probation with terms and conditions including that he serve 180 days in county jail. He was also ordered to register as a sex offender for life in accordance with the Act. Grey appealed, and we affirmed the conviction. (People v. Grey (Oct. 2, 2008, B202703) [nonpub. opn.].)
On February 9, 2011, Grey moved the trial court to expunge his conviction in accordance with section 1203.4. He also moved the court to enter an order relieving him of his lifetime duty to comply with the Act. The court granted both requests. The court recognized that Grey was convicted of one of the crimes listed in the Act's mandatory lifetime registration provision, and also acknowledged its understanding that the expungement of Grey's conviction did not relieve him of that duty. The court further acknowledged that Grey's plea had not been conditioned on any promise that the registration requirement would be terminated upon the completion of his probation. The court nevertheless purported to terminate the requirement in the exercise of its discretionary authority under section 1385. The People appeal. (§ 1238, subd. (a)(5).)
DISCUSSION
The People contend the court erred in relieving Grey of the lifetime duty to comply with the registration and reporting requirements of the Act. Grey concedes that the order is unauthorized.
The Act imposes a mandatory duty to register as a sex offender on every person who is convicted of certain enumerated offenses, including violations of section 647.6, the offense of which Grey was convicted. (§ 290, subds. (b), (c).) As Grey concedes, his lifetime duty to comply with the registration and reporting requirements of the Act was not affected by the expungement of his conviction under section 1203.4. (§ 290.007.) He further concedes that the court had no discretionary authority to relieve him of his duty to comply with the Act, be it under section 1385 or otherwise. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196 ["[t]he duty to register as a sex offender under section 290, subdivision (a), cannot be avoided . . . through the exercise of judicial discretion"]; see also In re Varnell (2003) 30 Cal.4th 1132, 1137 [trial court's power to dismiss under section 1385 applies only to individual charges and allegations in a criminal action].) In order to be relieved of any further duty to register under section 290, Grey must first obtain a certificate of rehabilitation. (§ 290.007.) It is undisputed that he has not done so. Accordingly, the court's order relieving him of the duty to register must be reversed.
Section 290.5, subdivision (b)(1) provides that persons convicted of certain enumerated offenses, including section 647.6, must also obtain a full pardon in order to obtain relief from the Act's registration and reporting requirements. This subdivision does not apply, however, to misdemeanor violations of section 647.6.
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The February 9, 2011, order terminating Grey's lifetime duty to comply with the provisions of the Act is reversed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
Gerald T. Shea, District Attorney, Kristy L. Imel, Kirk Wilson, Deputy District Attorneys, for Appellant.
Sanger & Swysen and Catherine J. Swysen for Respondent.