Opinion
F061143 Super. Ct. No. 10CM2435
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. EVA ERMELINDA LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
In a negotiated settlement, Eva Ermelinda Lopez pled guilty to corporal injury on a cohabitant and authorized the court to consider both dismissed counts - forcible foreign object sexual penetration and criminal threats - on sentencing issues including possible sex offender registration. At the probation and sentencing hearing, the court ordered her to register. She challenges the order on appeal. We affirm.
ISSUES ON APPEAL
Lopez argues that the order requiring her to register as a sex offender was a violation of her constitutional rights to due process and trial by jury and an abuse of discretion. The Attorney General argues that Lopez forfeited her right to appellate review by failing to withdraw her guilty plea and failing to secure a certificate of probable cause and that the order requiring her to register was neither a constitutional violation nor an abuse of discretion.
FACTUAL BACKGROUND
On August 9, 2010, Lopez used "her hands and fist" to strike her cohabitant, Jane Doe, with whom she was in a dating relationship, resulting in a traumatic condition including bruises, bite marks, and other marks on her body.
The factual basis of the plea in the reporter's transcript of the change-of-plea proceedings is the source of the facts here.
PROCEDURAL BACKGROUND
On August 31, 2010, the district attorney filed a three-count information that charged Lopez with committing an act of forcible foreign object sexual penetration (count 1; Pen. Code, § 289, subd. (a)(1)), inflicting corporal injury on a cohabitant (count 2; § 273.5, subd. (a)), and making a criminal threat (count 3; § 422).
Later statutory references are to the Penal Code.
On September 15, 2010, in a negotiated settlement with a Harvey waiver, Lopez pled guilty to corporal injury on a cohabitant, with the understanding that the court would dismiss the other counts but could consider both at "open sentencing" on issues including section 290 registration.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On October 12, 2010, the court sentenced Lopez to the three-year middle term on the corporal injury on a cohabitant and ordered her to register as a sex offender. (§ 290.)
DISCUSSION
1. Forfeiture Challenge
Preliminarily, we address the Attorney General's argument that Lopez forfeited her right to appellate review by failing to withdraw her guilty plea and failing to secure a certificate of probable cause.
Section 1237.5 provides, in relevant, part, "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere ... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Relying primarily on People v. McClellan (1993) 6 Cal.4th 367, the Attorney General argues that Lopez "forfeited her right to object to the imposition of sex offender registration by failing to withdraw her plea in the trial court." The defendant in that case, "pursuant to a plea agreement, pleaded guilty" but sought "to have his guilty plea set aside on appeal on the ground that the trial court, in advising him prior to the entry of the plea, failed to inform him that upon conviction of this offense he would be required to register as a sex offender." (Id. at p. 370.) McClellan held that, even though the court erred in failing to advise him his plea would require him to register as a sex offender, he was not entitled to relief since he failed to object at the probation and sentencing hearing to the registration requirement, which was not a violation of the terms of the plea agreement. (Id. at p. 381.) McClellan is inapposite. Lopez argued at the probation and sentencing hearing that "registering for the rest of her life as a sex offender" was "inappropriate" but acknowledged the court's discretion to order her to register. She did not forfeit her right to appellate review by failing to withdraw her guilty plea.
On the issue of Lopez's failure to seek a certificate of probable cause, People v. Hernandez (2008) 166 Cal.App.4th 641 held, "A postplea question not challenging the validity of a guilty plea is a noncertificate issue that may be raised on appeal after a guilty or no contest plea without a certificate of probable cause." (Id. at p. 646.) Yet the Attorney General seeks to distinguish Hernandez by arguing that a certificate of probable cause is required here, since the issue is discretionary sex offender registration, even though none was required in Hernandez, where the issue was mandatory sex offender registration. (Id. at p. 647.) That is a distinction without a difference. As Hernandez emphasized, "'the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.'" (Ibid., italics in original.) The issue before us is whether the order requiring Lopez to register as a sex offender was a violation of her constitutional rights to due process and trial by jury or an abuse of discretion, not whether her plea was valid. She did not forfeit her right to appellate review by failing to secure a certificate of probable cause. So we turn to the merits of her challenges to the order requiring her to register as a sex offender.
Disapproved on another ground by People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4 (Picklesimer).
2. Constitutional Challenge
Lopez argues that the order requiring her to register as a sex offender was a violation of her constitutional rights to due process and trial by jury. The Attorney General argues the contrary.
The crime to which Lopez pled guilty, corporal injury on a cohabitant, is not one for which section 290 mandates sex offender registration, but section 290.006 authorizes a discretionary sex offender registration order "if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or
Page 5 for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration." (Italics added.)
Lopez emphasizes that the information "did not allege the domestic violence offense was committed as a result of sexual compulsion or for the purpose of sexual gratification," that she did not admit the "offense was committed as a result of sexual compulsion or for the purpose of sexual gratification," and that she "waived her right to a trial by jury only on the facts necessary to support a conviction for domestic violence." On the premise that sex offender registration constitutes punishment, she argues that "section 290.006 provides the court with the authority to find facts necessary to support discretionary sex offender registration" but "the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt."
Lopez focuses her argument on, in her words, the Court of Appeal's "exhaustive analysis" of the issue in People v. Mosley (2010) 188 Cal.App.4th 1090, review granted January 26, 2011, S187965. On review, the Supreme Court could address the issue, "Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living 'within 2000 feet of any public or private school, or park where children regularly gather (§ 3003.5, subd. (b)), increase the 'penalty' for the offense within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466 [(Apprendi)], and require that the facts supporting the trial court's imposition of the registration requirement be found true by a jury beyond a reasonable doubt?"
Lopez's opening brief, which relied on the Court of Appeal's rationale, was filed just two days before the Supreme Court's grant of review.
Lopez relies on both Apprendi and Blakely v. Washington (2004) 542 U.S. 296 to ask that we reverse the sex offender registration order. Even a cursory reading of Blakely suggests that the high court intends that Apprendi apply solely to punishment, however.
"Our precedents make clear," Blakely notes, "that the 'statutory maximum'' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Id. at p. 303, italics added, italics in original.)
The sex offender registration requirement, though imposing a "substantial" and "onerous" burden, is not considered a form of punishment under either the state or federal Constitution. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197.) To the contrary, the requirement "serves an important and proper remedial purpose, and it does not appear that the Legislature intended the registration requirement to constitute punishment." (People v. Castellanos (1999) 21 Cal.4th 785, 796.) The rules are settled that "a court's authority to second-guess the legislative determinations of a legislative body is extremely limited," that "'the legislative branch is entitled to deference from the courts because of the constitutional separation of powers,'" and, that "if reasonable, legislation will not be disturbed." (Conn. Indem. Co. v. Superior Court (2000) 23 Cal.4th 807, 814.) In short, contrary to the premise of Lopez's argument, "the requirements of Apprendi-Blakely-Cunningham[]do not apply to the determination whether to require registration as a sex offender." (People v. Garcia (2008) 161 Cal.App.4th 475, 486, disapproved on another ground by Picklesimer, supra, 48 Cal.4th at p. 338, fn. 4.) Her constitutional challenge to the order requiring her to register as a sex offender fails to persuade us.
Cunningham v. California (2007) 549 U.S. 270.
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3. Abuse-of-Discretion Challenge
Lopez argues that the order requiring her to register as a sex offender was an abuse of discretion. The Attorney General argues the contrary.
In her negotiated plea of guilty to corporal injury on a cohabitant, Lopez gave a Harvey waiver authorizing the court to consider both dismissed counts - forcible foreign object sexual penetration and criminal threats - on sentencing issues including possible sex offender registration. The probation officer's report noted that after she accused her cohabitant "of having sex with someone else," she "forced [her cohabitant's] legs apart, telling her she was going to make sure she did not have sex with someone else," and "stuck her fingers into [her] vagina." The probation officer acknowledged that "the crime of 289(a)(1) PC is a sexual offense" but opined that "the crime was not committed for [her] sexual gratification" and recommended "against the registration requirement."
At the probation and sentencing hearing, Lopez's cohabitant testified that she did not "really sleep without having terrors and nightmares of being held down and sexually assaulted." The court then asked both counsel to comment. Lopez's attorney agreed with "the analysis of probation" that the case was not "appropriate" to impose a sex offender registration requirement. The prosecutor expressed his "complete disagreement with the probation officer's report" and argued that there were "actually at least two different incidents of violence" in Lopez's assault. "First of all," he said, her cohabitant, who was asleep, "awoke to [Lopez] beating her on the head. Then, [Lopez] committed a sexual assault" on her. As authorized by the Harvey waiver, the prosecutor argued, the court should consider not only the sexual assault but also the threat to kill. He opined that Lopez committed the assault on her cohabitant, not for sexual gratification but for sexual abuse, and argued that she is a danger to "the public and other people who may come into contact with her in a romantic situation."
After hearing argument, the court found "that the manner in which this particular offense was committed shows a particularly heinous intention on behalf of the defendant toward the victim with respect to the manner in which the sexually based undertones of this offense were committed" and "that the registration requirement under Penal Code Section 290 would be appropriate in this case." On those findings, the court ordered Lopez "to register under Penal Code Section 290 upon her release from custody."
Lopez acknowledges "that the probation report stated that the digital penetration was committed during 'an assault'" but argues that "the probation report does not state that the digital penetration occurred as part of a 'sexual' assault." On the record before us, her argument is inscrutable. The probation officer's report graphically documented the intensely sexual character of Lopez's assault on her cohabitant. Whether "as a result of sexual compulsion or for purposes of sexual gratification," the record shows that her criminal conduct falls squarely within the scope of the statutory authorization of a discretionary sex offender registration order. (§ 290.006.)
Lopez fails to persuade us that the order requiring her to register as a sex offender was an abuse of discretion. "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.) The requisite showing is entirely absent here.
DISPOSITION
The judgment is affirmed.
Gomes, Acting P.J.
WE CONCUR:
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Dawson, J.
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Detjen, J.