Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05315
DAVIS, Acting P.J.
Defendant Alejandro Casillas Villa entered a negotiated plea of guilty to felony evading (Veh. Code, § 2800.2, subd. (a)--count one) and no contest to carrying a loaded firearm, a misdemeanor (Pen. Code, § 12031, subd. (a)(2)(F)--count three) and driving with a blood alcohol content of .08 percent or more, a misdemeanor (Veh. Code, § 23152, subd. (b)--count five). In exchange, the remaining counts (count two, carrying a concealed firearm (§ 12025, subd. (b)(6)) and count four, resisting a peace officer (§ 148, subd. (a)(1)) were dismissed with a Harvey waiver.
Hereafter, undesignated section references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
In accordance with the plea agreement, the trial court suspended imposition of sentence and granted defendant probation for a term of five years subject to certain terms and conditions, including 240 days in county jail and gang offender registration pursuant to section 186.30.
Defendant appeals. The trial court granted defendant’s request for a certificate of probable cause. (§ 1237.5.) Defendant contends (1) insufficient evidence supports imposition of the gang offender registration requirement and (2) the registration requirement violates the plea bargain. We agree with both contentions, will reverse the registration requirement and remand for further proceedings.
Facts and Procedural History
On June 17, 2006, while on patrol near Stockton Boulevard, Sacramento police officers heard five to six gunshots and saw a man running through a parking lot and then a car speed off. The officers pursued the car, which failed to pull over and ran more than 12 stop signs/lights. During the pursuit, the driver slowed the car three times and each time a passenger got out. When the car hit a spike strip, the driver, defendant, tried to flee but was caught. The officers searched the car and found a revolver containing five expended shell casings and a loaded semi-automatic handgun. Defendant’s blood alcohol content was .13 percent.
At the entry of plea hearing, the court informed defendant that in exchange for his plea to the specified offenses he would be granted probation subject to the condition that he serve a 240-day jail term and that the following fines would be imposed: a restitution fine up to $10,000, a penalty fine of up to $10,000, and a $480 fine for driving under the influence plus assessments. The court also informed defendant that his license would be suspended or restricted, he would be required to participate in a drug and alcohol program, and if he violated probation, he faced a maximum state prison sentence of three years for felony evading and an additional six months for the driving under the influence offense. Pursuant to section 1192.5, the court informed defendant that in the event the court withdrew its approval of the plea, defendant would be allowed an opportunity to withdraw his plea. Defendant was advised of and waived his constitutional rights and entered his plea. Defendant agreed to be sentenced by a different judge.
Several weeks later, a different judge sentenced defendant. The probation report reflects that the 22-year-old defendant admitted past membership in the “Varrio Diamond Sacra Norteño” street gang, beginning when he was 12 years of age and ending when he was 18 years of age. The probation report further reflects that defendant’s “father and two older brothers are also involved with this street gang.” The sentencing judge imposed the gang offender registration requirement based on the probation report.
Discussion
As a condition of probation, and over defense counsel’s objection, the court ordered defendant to register as a gang offender pursuant to section 186.30. On appeal, defendant contends insufficient evidence supports imposition of this requirement, and that the registration requirement violates the terms of the plea bargain. He claims that the registration order must be stricken. The Attorney General concedes that insufficient evidence supports the registration requirement and requests remand to allow the People to present sufficient evidence to support the finding that defendant’s crimes were gang related.
We will reverse the order and remand to allow the defendant to withdraw his plea. If, as he asserts in his brief, he declines to do so, then the prosecution will have an opportunity to prove defendant’s crimes were gang related.
A. Sufficiency of the Evidence
Section 186.30 provides:
“(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.
“(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses:
“(1) Subdivision (a) of Section 186.22.
“(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true.
“(3) Any crime that the court finds is gang related at the time of sentencing or disposition.”
A trial court’s finding under section 186.30 that a defendant’s offense was gang related is subject to proof by a preponderance of the evidence and will be upheld on appeal if “each element of gang relatedness” is supported by substantial evidence, that is, reasonable, credible and of solid value. (In re Jorge G. (2004) 117 Cal.App.4th 931, 944.)
Here, the trial court imposed the gang member registration requirement by finding by a preponderance of evidence that the crime was gang related. (§ 186.30, subd. (b)(3).) To properly do so there must be substantial evidence that the commission of offenses enumerated in section 186.22, subdivision (e), is a primary activity of the gang the defendant is affiliated with. Evidence sufficient to show only one offense is not enough. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.) The Attorney General concedes that here the record fails to contain evidence of more than one offense. We agree.
Section 186.22, subdivision (e), specifies the following offenses: “(1) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245.
Scant evidence supports the requirement. The trial court had the facts underlying the offenses, which reflect that defendant was driving a car while drunk. In the car, officers found a revolver containing five expended shell casings and a loaded semi-automatic handgun. Officers chased defendant’s car after they heard gunshots and saw a man running and defendant’s car fleeing. During the pursuit, defendant slowed the car enough to allow three passengers to exit the car. This evidence supports a finding that defendant had passengers in the car but not their identity as gang members. While the evidence shows defendant had a revolver with expended shell casings in the car, the evidence does not reflect that the firearm had been fired from the car at the scene where the officers had seen the man running.
The trial court also had before it the probation report. Defendant admitted a prior relationship with a known gang. Defendant’s family members, his father and two brothers, were involved with the same gang.
Thus, the evidence shows an ongoing organization or group of three or more persons having a common name. However, there is no evidence of the primary activities of this gang or evidence of whether the members have together or individually participated in a pattern of gang activity. The evidence shows defendant’s prior involvement in the gang but not necessarily his continuing relationship with the gang.
B. Violation of the Plea Bargain
Defendant contends the registration order violated the plea bargain. Defendant “emphasizes that he does not seek to withdraw from the plea bargain” but seeks instead “specific performance, striking the registration requirement.” We accept the Attorney General’s concession that the gang registration requirement was imposed in violation of the plea agreement. Instead of striking it, we will reverse and remand to allow the prosecution the opportunity to seek imposition of the registration requirement, and if it does, to allow defendant an opportunity to withdraw his plea.
“When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “A violation of a plea bargain is not subject to harmless error analysis. A court may not impose punishment significantly greater than that bargained for by finding the defendant would have agreed to the greater punishment had it been made a part of the plea offer. ‘Because a court can only speculate why a defendant would negotiate for a particular term of a bargain, implementation should not be contingent on others’ assessment of the value of the term to defendant.’” (Id. at p. 1026.)
When gang offender registration for five years is imposed because there is a conviction of the identified offense of participation in a criminal street gang (§ 186.22, subd. (a)) or the finding of an enhancement for the commission of a crime for the benefit of, at the direction of, or in association with any criminal street gang (§ 186.22, subd. (b)(1)), registration is mandatory and not a permissible subject of plea negotiations. Under those circumstances it may be imposed without violating the plea bargain despite the lack of an advisement of the requirement. (People v. McClellan (1993) 6 Cal.4th 367, 379-381 [sex offender registration].) However, discretionary registration may be a subject of plea negotiations. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198 [distinction between mandatory and discretionary sex offender registration].)
People v. Olea (1997) 59 Cal.App.4th 1289 (Olea) involved the lifetime sex offender registration requirement. The defendant was charged with five counts of burglary with intent to commit larceny (counts 1-5) along with two counts of assault to commit rape (counts 6-7). Counts 6 and 7 contained a notice that conviction of those offenses would require defendant to register as a sex offender. Pursuant to a plea agreement, defendant pleaded guilty to counts 1-5; counts 6-7, along with the special allegations, were dismissed. During the sentencing hearing, the trial court made a finding that three of the burglaries were sexually motivated and imposed the registration requirement. The court in Olea concluded that the defendant had not been advised of the imposition of the registration requirement when he entered the plea and reversed the order imposing it. (59 Cal.App.4th at pp. 1292-1299.)
Here, defendant’s crimes did not require gang registration. He was not convicted of a violation of section 186.22, subdivision (a), nor was an enhancement under section 186.22, subdivision (b)(1) found to be true. Defendant was convicted of felony evading, carrying a loaded firearm and driving with a blood alcohol content of .08 percent or more. The registration requirement was not inherent in his offenses. The court imposed the gang offender registration requirement because it found, at sentencing, that defendant’s crimes were gang related. As was the case in Olea, here the registration requirement was discretionary because the trial court had to consider the facts underlying the offenses. As such, a gang registration requirement was a permissible subject of negotiation. Because defendant was not advised of the registration requirement when he entered the plea, the court’s imposition of it violated the plea bargain.
Defendant contends that the remedy here is to grant him specific performance by striking the registration requirement. We disagree. Specific performance of a failed plea bargain is generally disfavored. (Olea, supra, 59 Cal.App.4th at p. 1298.) The court erred in imposing the registration requirement without permitting defendant an opportunity to withdraw his plea. Because the court in its discretion may impose a gang offender registration requirement if there is sufficient evidence to support it, the proper remedy is to remand for further proceedings. (Id. at p. 1299.)
Disposition
The judgment (order of probation) is reversed, and the case is remanded to the trial court for further proceedings. If the People elect not to seek imposition of the gang offender registration requirement on remand, then the judgment (order of probation) shall be reinstated in its entirety with the exception of the gang offender registration requirement. If the People elect to seek imposition of the gang offender requirement on remand, then defendant shall first be given the opportunity to withdraw his plea. If defendant elects to withdraw his plea, then the trial court shall reinstate the dismissed charges and proceed accordingly.
We concur ROBIE, J., BUTZ, J.
“(2) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1.
“(3) Unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1.
“(4) The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.
“(5) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246.
“(6) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 12034.
“(7) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13.
“(8) The intimidation of witnesses and victims, as defined in Section 136.1.
“(9) Grand theft, as defined in subdivision (a) or (c) of Section 487.
“(10) Grand theft of any firearm, vehicle, trailer, or vessel.
“(11) Burglary, as defined in Section 459.
“(12) Rape, as defined in Section 261.
“(13) Looting, as defined in Section 463.
“(14) Money laundering, as defined in Section 186.10.
“(15) Kidnapping, as defined in Section 207.
“(16) Mayhem, as defined in Section 203.
“(17) Aggravated mayhem, as defined in Section 205.
“(18) Torture, as defined in Section 206.
“(19) Felony extortion, as defined in Sections 518 and 520.
“(20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594.
“(21) Carjacking, as defined in Section 215.
“(22) The sale, delivery, or transfer of a firearm, as defined in Section 12072.
“(23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of Section 12101.
“(24) Threats to commit crimes resulting in death or great bodily injury, as defined in Section 422.
“(25) Theft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.
“(26) Felony theft of an access card or account information, as defined in Section 484e.
“(27) Counterfeiting, designing, using, attempting to use an access card, as defined in Section 484f.
“(28) Felony fraudulent use of an access card or account information, as defined in Section 484g.
“(29) Unlawful use of personal identifying information to obtain credit, goods, services, or medical information, as defined in Section 530.5.
“(30) Wrongfully obtaining Department of Motor Vehicles documentation, as defined in Section 529.7.
“(31) Prohibited possession of a firearm in violation of Section 12021.
“(32) Carrying a concealed firearm in violation of Section 12025.
“(33) Carrying a loaded firearm in violation of Section 12031.”