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People v. Tobias

California Court of Appeals, Fourth District, Second Division
Apr 2, 2009
No. E044337 (Cal. Ct. App. Apr. 2, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF132999. Janice M. McIntyre, Judge. Retired judge of the Riverside Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Janet Neeley, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Gaut, Acting P.J.

Defendant pled guilty to one count of oral copulation with a person under the age of 16 (Pen. Code, § 288a, subd. (b)(2) ), and was sentenced to the upper term of three years in state prison. On appeal, defendant argues (1) he was denied due process when the trial court abused its discretion in denying probation, (2) the court’s failure to expressly state defendant must register as a sex offender (§ 290) was tantamount to an exercise of discretion to not impose such a requirement, and (3) the penalties for committing oral copulation on a person under age 16 (§ 288a, subd. (b)(2)) violate equal protection where such an offense is not a wobbler, although unlawful intercourse with a person under age 16 (§ 261.5) is a wobbler. We affirm.

All further statutory references will be to the Penal Code, unless otherwise indicated.

BACKGROUND

Defendant “met” 15-year-old Jane Doe on MySpace, exchanging emails with her for several weeks. Initially, Doe told defendant she was 18 years of age, and he initially told Doe he was 19. After several weeks of email correspondence and communication via instant messaging, Doe obtained defendant’s telephone number and called him. She informed him that she was actually 15 years of age. Subsequently, Doe called defendant while she was intoxicated and invited him to her parent’s house, where they “made out,” and defendant admitted he was 25 years of age.

On July 1, 2006, Doe invited defendant to her parents’ home again. She sneaked out of the house to meet defendant, where he orally copulated her, then digitally penetrated her vagina, and then she orally copulated him. On July 23, 2006, Doe invited defendant to her parents’ home again, and the two engaged in similar sexual acts. However, while Doe was orally copulating defendant outside his car, another vehicle, carrying Doe’s sister and a friend, pulled over. Doe’s sister and the sister’s friend assaulted defendant and tried to photograph him until Doe made them stop and defendant left in his car.

Defendant was arrested and charged with four counts of oral copulation with a child under 16 (§ 288a, subd. (b)(2), counts 1, 3, 4, and 6), and two counts of sexual penetration of a child under 16 by a foreign object. (§ 289, subd. (i), counts 2 and 5.) Prior to the preliminary hearing, defendant accepted a plea bargain. Pursuant to the agreement, he pled guilty to count 1, oral copulation with a child under 16, agreed to a sentence lid of three years in state prison, waived his right to a jury trial as to any fact that might be used in aggravation (ref. Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham)), and waived his right to appeal.

On August 17, 2007, the court denied probation and sentenced defendant to the upper term of three years in state prison, dismissing the balance of the complaint pursuant to the plea agreement. Defendant appeals from the sentence or other matters occurring after the plea. (Cal. Rules of Court, rule 8.304(b)(4)(B).)

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in Denying Probation.

In pleading guilty, defendant agreed to a three-year sentence lid, and agreed to waive application of the Cunningham decision. At the sentencing hearing, defense counsel argued for probation. However, defendant did not argue for the lower or middle term, and therefore waived any challenge to the imposition of the upper term. (People v. Scott (1994) 9 Cal.4th 331, 353.) We therefore examine only the decision to deny probation.

Probation is not a right but an act of clemency (People v. Read (1990) 221 Cal.App.3d 685, 689) that is a matter for the discretion of the trial court. (People v. Bolton (1979) 23 Cal.3d 208, 216.) In making such a decision, the court must state adequate reasons for denying probation. (People v. Roe (1983) 148 Cal.App.3d 112, 119.) However, it is not required to identify aggravating or mitigating circumstances; that requirement applies only to the decision to impose the upper or lower term. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.)

The defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) On appeal, we must determine whether the trial court’s order denying probation was arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) A decision denying probation will be reversed only upon a clear showing that the court exercised its discretion in an arbitrary or capricious manner. (People v. Groomes (1993) 14 Cal.App.4th 84, 87.)

Here, the court considered the information in the probation officer’s report, the psychological evaluation of defendant, the victim impact statement that was read in open court on behalf of Jane Doe, the statement made by Jane Doe’s mother, and the arguments of counsel. The court determined that the factors supporting the denial of probation outweighed the factors supporting the grant of probation, pointing to the criminal sophistication with which the crime was committed.

Defendant takes issue with this finding, arguing that the finding of criminal sophistication must be supported by substantial evidence. While the quality of the evidence must be substantial (that is, solid and credible), the circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. (People v. Leung (1992) 5 Cal.App.4th 482, 506.)

The information presented at the hearing revealed the defendant had met several sexual partners using the same process he used to meet Doe on the MySpace website. He communicated with Doe by way of email and instant messaging for months before they met in person. By defendant’s statement, he did not reveal his true age to Doe until after the second or third in-person meeting. Defendant’s profile on MySpace included false information about his age. Although defendant admitted knowing that orally copulating a minor was wrong, he thought it was “no big deal,” and defended his conduct by stating, “But, the girl (the victim) was hot!” This evidence supports the court’s finding of criminal sophistication or professionalism.

Other information in the probation report suggests that Doe informed defendant of her true age before their first in-person meeting.

Defendant complains the findings were the product of mischaracterizations by Doe’s mother, who described his conduct as “grooming” Doe, and included assertions that defendant showed up at the meetings with Doe with condoms and alcohol which are not supported by the record. Defendant also argues that by adopting the statements of Doe’s mother in his argument for denial of probation, the prosecutor, who referred to Doe’s age as being 14, presented false evidence at the sentencing hearing. The prosecutor’s references to Doe’s age cannot have harmed defendant, where her true age was reflected in the reports and the statement by Doe’s mother, and where the penalty for the crime would be the same whether Doe was 14 or 15. Most importantly, defendant failed to object to any of this information in the trial court, and has forfeited those claims on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353.)

The information presented at the hearing, provided in part by the defendant’s own statements to the probation officer, supports a reasonable inference that defendant trolled the social networking website for sexual partners, and “groomed” them by developing a relationship through email correspondence and instant messaging. There is no clear showing that the trial court abused its discretion in denying probation.

2. Defendant’s Mandatory Duty to Register as a Sex Offender Was Not Obviated By the Trial Court’s Failure to Include Reference to That Obligation.

Defendant argues that the court’s failure to state on the record that defendant was required register as a sex offender (§ 290) was tantamount to an exercise of its discretion to not order registration. He seeks our endorsement of this theory. He also argues that imposing a mandatory registration duty on him violates equal protection principles. We disagree.

Section 290, the Sex Offender Registration Act (the Act), imposes a mandatory duty to register on every person who is convicted of certain enumerated offenses, including violations of section 288a, the offense for which defendant was convicted. (§ 290, subd. (b).) For offenses that are not enumerated in the Act, the court may impose a duty to register as a sex offender if the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. (§ 290.006.)

Here, the court’s failure to pronounce a part of the sentence is not reasonably considered an exercise of discretion where no statement of reasons appears on the record. If it were an intentional decision to not impose the duty to register, it was unauthorized. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1415 [failure to impose a mandatory laboratory analysis fee constituted an unauthorized sentence]; see also, People v. Barriga (1997) 54 Cal.App.4th 67, 70 [failure to order mandatory AIDS testing resulted in unauthorized sentence].) The defendant was convicted of an enumerated offense, making sexual offender registration a statutorily mandated element of punishment. (People v. McClellan (1993) 6 Cal.4th 367, 380.) The defendant does not claim he lacked notice of the requirement. The court’s failure to include reference to the duty in its sentencing decision did not relieve defendant of the duty.

We now turn to defendant’s claim that imposition of the duty to register on a person convicted of orally copulating a person under 16 violates equal protection principles, where a defendant who has sexual intercourse with a person under 16 is not under a mandatory duty to register. Defendant relies on the holding of People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). However, he acknowledges the claim was rejected by People v. Manchel (2008) 163 Cal.App.4th 1108 (Manchel).

In Hofsheier, the defendant was convicted of the crime of orally copulating a person under the age of 18 (§ 288a, subd. (b)(1)), not oral copulation with a person under 16 by a person over the age of 21 (§ 288a, subd. (b)(2)), as defendant was. The Supreme Court in Hofsheier observed that section 288a, subdivision (b)(1) and section 261.5 both concerned sexual conduct with minors; the difference between the two offenses is in the nature of the sexual act. (Hofsheier, supra, 37 Cal.4th at p. 1200.) The court concluded that the statutory distinction in section 290 requiring mandatory lifetime registration of all persons 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 pp. 1206-1207.)

However, Hofsheier does not compel a similar conclusion here, where the conviction involved oral copulation by a person over 21 with a child under 16. Indeed, the Supreme Court recognized that section 288a provided a graduated scale of punishment related to the age of the victim and emphasized that its analysis was limited to situations involving mandatory registration for one convicted of oral copulation with a minor of 16 or 17 years of age. (Hofsheier, supra, 37 Cal.4th at pp.1195, 1198.)

People v. Manchel, supra, 163 Cal.App.4th 1108, is directly on point. We recognize that there is currently a split of authority, since at least one other published case has extended the Hofsheier rationale to convictions for oral copulation with a person under 16. (See People v. Garcia (2008) 161 Cal.App.4th 475, 482.) However, in our view Manchel is better reasoned, because it accords with the reasoning of Hofsheier in acknowledging a rational basis for more severe sentences where the victim is under the age of 16.

Other cases, involving other acts covered by section 288a, are in agreement with the reasoning of Manchel, and mandatory registration based on a conviction involving a lewd act on a child who is 14 or 15 years old, where the perpetrator is at least 10 years older than that child (§ 288a, subd. (c)(1)), was recently upheld in People v. Anderson (2008) 168 Cal.App.4th 135, 142-143, because the defendant was not similarly situated with a person convicted of unlawful sexual intercourse with a person under 18.

The defendant is subject to a mandatory duty to register as a sex offender despite the court’s failure to pronounce that particular part of the sentence.

We have found no specific statute or rule compelling the court to include such an order in the minutes of its judgment, or in the abstract of judgment. However, in the interest of clarity, we will direct the clerk to amend the minutes and abstract to include the defendant’s duty to register as a sex offender.

3. Any Challenge to the Felony Nature of the Crime to Which Defendant Pled Guilty Was Waived by the Guilty Plea, and Constitutes a Constitutional Challenge to the Plea That May Not Be Raised On Appeal Absent a Certificate of Probable Cause.

In a claim related to his equal protection challenge directed at the mandatory sex offender registration, defendant argues he was denied equal protection because his conviction was not a wobbler, whereas a conviction of sexual intercourse with a person under the age of 18 could have been punished as either a felony or a misdemeanor. Respondent argues that this argument was waived. Additionally, respondent asks us to reconsider our denial of its motion to dismiss the appeal, made without prejudice to argue the grounds for dismissal in its brief. We agree with respondent. Defendant forfeited the issue by pleading guilty to the felony charge without objection, and by failing to obtain a certificate of probable cause.

Because defendant pled guilty to the crime as a felony, agreed to the sentence range by which the court could impose judgment, and did not preserve the right to argue for a reduction of the charge to a misdemeanor in his plea agreement, he cannot challenge the nature of the conviction without a certificate of probable cause. (§ 1237.5.) In People v. Panizzon (1996) 13 Cal.4th 68, at page 79, the Supreme Court held that a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself, requiring a certificate of probable cause in order to attack the sentence.

Here, the defendant did not negotiate a specific sentence term to be imposed, but he did agree to plead guilty to the charge, as a felony, he also agreed to the range of felony sentencing with a three-year lid, and waived his right to appeal. We interpret the waiver, which was broad and general, to include all matters leading up to, and including, the guilty plea. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1663.)

Even if we did not consider the issue expressly waived, the issue is not properly before us. Although we could consider defendant’s attack on the sex offender registration as a post-plea occurrence, that did not challenge the validity of the plea (see People v. Hernandez (2008) 166 Cal.App.4th 641, 646-647), the instant claim respecting the nature of the conviction affects the constitutional validity of the plea. Defendant argues that the statutory punishment for the crime to which he pled guilty violates equal protection, but he expressly agreed to the sentence range with a three-year lid as a part of his plea agreement. Without a certificate of probable cause, the issue is not properly before us.

DISPOSITION

The conviction and sentence are affirmed. Upon the issuance of the remittitur, the clerk of the court is directed to amend the sentencing minutes and the abstract of judgment to include the mandatory duty to register as a sex offender pursuant to Penal Code section 290, and to forward a copy to the Department of Corrections and Rehabilitation.

We concur: King, J., Miller, J.


Summaries of

People v. Tobias

California Court of Appeals, Fourth District, Second Division
Apr 2, 2009
No. E044337 (Cal. Ct. App. Apr. 2, 2009)
Case details for

People v. Tobias

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEX TOBIAS, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 2, 2009

Citations

No. E044337 (Cal. Ct. App. Apr. 2, 2009)