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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Gregory McCLELLAN, Defendant and Appellant.

No. F015069.

Decided: July 14, 1992

Thomas W. Condit, Foresthill, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., Edgar A. Kerry and Rosendo Peña, Jr., Deputy Attys. Gen., Fresno, for plaintiff and respondent.


On July 26, 1990, defendant was initially charged as follows:  count I—assault with intent to commit rape (Pen.Code, §§ 220, 261, subd. (a)(2));  count II—attempted rape (Pen.Code, §§ 261, subd. (a)(2), 664) with the intent to personally inflict great bodily injury (Pen.Code, § 1203.075);  counts III and V—first degree burglary (Pen.Code, §§ 459, 460, former subd. 1);  count IV—battery resulting in serious bodily injury (Pen.Code, § 243, subd. (d));  counts VI and VII—resisting arrest (Pen.Code, § 69);  and count VIII—misdemeanor impersonation of an officer (Pen.Code, § 146a).   The district attorney specially alleged defendant had suffered a prior serious felony conviction (Pen.Code, § 667, subd. (a)) and a prior prison term (Pen.Code, § 667.5, subd. (b)) (counts I–V);  defendant served two prior prison terms (Pen.Code, § 667.5, subd. (b)) (count VI);  and defendant inflicted great bodily injury (Pen.Code, § 12022.7) (counts I–III).

On August 28, 1990, the court granted defendant's motion to dismiss counts V and VIII (Pen.Code, § 995) and the People's motion to dismiss counts VI and VII (Pen.Code, § 1385).   Thereafter, defendant withdrew his not guilty plea, pleading guilty to assault with intent to commit rape (count I), and admitted the great bodily injury, prior serious felony conviction, and prior prison term allegations.   Defendant conditioned the plea on a state prison sentence not to exceed 13 years and the dismissal of the remaining counts and allegations.

The court denied defendant probation and sentenced him to a total term of thirteen years in state prison, the middle term of four years on count I, a consecutive three-year enhancement for the great bodily injury allegation, a consecutive five-year enhancement for the prior serious felony allegation, and a consecutive one-year enhancement for the prior prison term allegation.   The court awarded defendant 159 days of custody credits, ordered him to pay a $100 restitution fine (Gov.Code, § 13967), and informed him of the requirement that he register as a sex offender (Pen.Code, § 290).   Defendant filed a timely notice of appeal in propria persona.

On May 9, 1991, this court denied defendant's in propria persona petition for writ of habeas corpus alleging ineffective assistance of trial counsel (No. F015811).   Thereafter, defendant filed an amended notice of appeal which included a statement of “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”  (Pen.Code, § 1237.5.)


The following facts are taken from the report of the probation officer as set forth in the respondent's brief on appeal:

“ ‘On May 12, 1990, officers responded to 601—36th Street regarding an injured female identified as Donna [ ], age 16, who was bleeding severely.   Officers contacted Lori [ ], age 17, who said that her friend Donna had been injured inside of [Lori's] apartment, # 106, and had been transported to the hospital by her mother, Linda [ ].  [Lori] said she had no information as to how [Donna] had been injured, but that she had found blood in the bathroom of her apartment.

“ ‘Officers examined the bedroom [sic ] and found a large amount of blood on the floor.

“ ‘At the Memorial Hospital Emergency Room officers contacted Donna and Linda [ ].  Donna stated that she did not know what had happened and could not recall anything prior to her being in the hospital.   Linda [ ] was unable to provide any explanation of her daughter's injuries.

“ ‘Just prior to the officer leaving the hospital, Donna said that she had just recalled what had happened.   Donna said she had entered [Lori's] apartment to change into some shorts and a black male, later fully identified as Gregory McClellan, age 29, the defendant, had followed her into the bathroom, closed the door, and told her to remove her clothing.   Donna was unable to recall any other details of the assault.   Donna described McClellan as wearing a blue shirt and sunglasses and of large stature.

“ ‘Evidence and photographs were taken from the bathroom at [Lori's] apartment.

“ ‘During a neighborhood check, officers contacted Jay Smith who had been assisting the occupant of apartment # 205 move.   Smith said that he recalled seeing a black male adult under the stairway near the front door of [Lori's] apartment, who then walked away from the area.   The suspect was identified as of medium build, approximately 6 feet tall with a short afro and a blue turquoise shirt.

“ ‘A check with other residents of several other apartments indicated that there were no black families or black males living in the complex.

“ ‘Officers re-contacted [Donna] in the Emergency Room at Memorial Hospital and learned that [Donna] and [Lori] had spent the night at [Donna's] mother residence [sic ].  [Donna's] mother had driven [Lori] and [Donna] to [Lori's] apartment where [Lori] was to have a yard sale.  [Donna] said that they had set up the yard sale on a street side area of the apartment complex and that Linda [ ] had arrived at approximately 2:00 p.m.  [Donna] said at that time, she had entered [Lori's] apartment in order to change into a pair of shorts which she had left in the bathroom of [Lori's] apartment.

“ ‘[Donna] unlocked [Lori's] apartment door and left it standing open as she went directly to the bathroom to change into shorts.   As she started to unbutton her jeans, she was immediately confronted by McClellan, who ordered her to remove her clothing.  [Donna] had refused and McClellan said, “Take them off now,” and [Donna] again refused.  [Donna] said the next thing she could recall was being at the hospital.   She could not recall how she got out of the apartment or to the hospital.

“ ‘During an interview with [Lori], she provided the same information as given by [Donna].   She said that [Donna] had been gone approximately fifteen minutes when she was alerted that [Donna] had been injured.   She said she had not seen anyone matching the suspect's description and her apartment was out of view of the location of the yard sale.

“ ‘Subsequently, photographs were taken of [Donna's] facial injuries which included a cut on the inner corner of her left eye, a broken nose, and swelling in the facial area, mainly on the left side.   A sexual assault examination was completed and the sex crime kit and [Donna's] clothing were seized.

“ ‘During a follow-up investigation, a positive fingerprint comparison was made of fingerprints obtained at [Lori's] apartment with those of Gregory McClellan.

“ ‘On July 2, 1990, [Donna] was unable to identify McClellan in a photographic lineup.

“ ‘On the same date, officers contacted McClellan at the Kern County Jail where he was in custody on an unrelated charge.   After McClellan was advised of his rights pursuant to the Miranda decision, he refused to waive them.   He was placed under arrest for Assault with Intent to Commit Rape and Assault with Great Bodily Injury.’ ․”


I **


Defendant contends the judgment must be reversed because the lower court failed to advise him at the change of plea hearing that sex offender registration was a direct consequence of his guilty plea.

Penal Code section 290 states in relevant part:

“(a) Any person who ․ is ․ convicted in this state of the offense of assault with intent to commit rape ․ shall, within ․ 14 days of coming into any county, city, or city and county in which he or she temporarily resides or is domiciled for that length of time register with the chief of police of the city in which he or she is domiciled or the sheriff of the county if he or she is domiciled in an unincorporated area․


“(e) The registration shall consist of (1) a statement in writing signed by the person, giving such information as may be required by the Department of Justice, and (2) the fingerprints and photograph of the person.   Within three days thereafter, the registering law enforcement agency or agencies shall forward the statement, fingerprints, and photograph to the Department of Justice.”

 The recognized purpose of the registration requirement of Penal Code section 290 is to assure that persons convicted of the crimes listed in that section should be readily available for police surveillance at all times.   (In re DeBeque (1989) 212 Cal.App.3d 241, 247–248, 260 Cal.Rptr. 441.)

 Before taking a guilty plea, the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea.  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)   Registration as a sex offender is a direct consequence of a plea to an offense listed in Penal Code section 290, subdivision (a).  (In re Birch (1973) 10 Cal.3d 314, 322, 110 Cal.Rptr. 212, 515 P.2d 12.)   In the instant case, the lower court failed to advise defendant about the sex offender registration requirement at the hearing on change of plea.   The parties nevertheless accepted the plea bargain and the lower court approved it.   And at the sentencing hearing, defendant did not object to or otherwise challenge the court's advisement of the requirement that he register as a sex offender.

 When a plea bargain is accepted by the parties and approved by the court, the defendant generally cannot be sentenced on such plea to a punishment more severe than that specified in the bargain.   Moreover, the court may not proceed as to such plea other than as specified in the agreement.   The court shall inform the defendant prior to the making of the plea that (1) its approval is not binding;  (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter;  and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.  (Pen.Code, § 1192.5.)   Where the punishment significantly exceeds the terms of a negotiated plea and the Penal Code section 1192.5 admonition is not given, the error is not waived by acquiescence and may not be deemed harmless.  (People v. Walker, 54 Cal.3d 1013, 1024–1030, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

In the instant case, defendant contends and the People concede the sex offender registration requirement is a significant punishment, the variance in the plea bargain was significant, and a violation of the plea bargain is not subject to harmless error analysis.   However, the parties disagree as to the proper remedy.   Defendant submits the appropriate remedy is to allow him to withdraw his plea and to go to trial on the original charges.   The People maintain the case should be remanded to allow the trial court, the defendant and the prosecutor to determine the most appropriate remedy:

“If witnesses are missing or their memories dimmed due to the passage of time caused, in part, by appellant's failure to timely raise the issue, it may be appropriate to simply strike the registration requirement in the interests of justice.   After all, the sex registration requirement applies only if appellant is convicted of one of the enumerated offenses in [Penal Code] section 290.   If due to the passage of time, the People are no longer in a position to go to trial, not only will the sex registration requirement be stricken, but so will appellant's convictions and prison sentence.   Thus, to state, as appellant does, that striking the requirement is not appropriate because it is statutorily mandated ․ ignores the competing interests of the People to make sure appellant doesn't go scot-free simply because he was not informed of the registration requirement when he pled guilty.   In other words, to not strike the registration requirement may do more harm than good, all things considered.   The Legislature could not have intended that the registration requirement could invalidate a plea bargain when the result would mean you lose the registration and the convictions.  (Walker, supra, at p. 1027 [1 Cal.Rptr.2d 902, 819 P.2d 861].)

“Furthermore, a remand could facilitate a reworking of the plea bargain itself, such as to strike a portion of appellant's sentence in exchange for appellant's acceptance of the sex registration requirement.   Finally, a remand would provide the People the opportunity to determine whether all of the evidence still exists and remains strong even after the passage of time, such that the People would agree to have appellant withdraw his guilty plea and go to trial on the original charges.   These assessments and a possible renegotiation can be handled better at the trial court level.”

 Violation of a plea bargain by an officer of the state raises a constitutional right to some remedy.   The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge.   The remedy chosen will vary depending on the circumstances of each case.   Factors to be considered include (1) who broke the bargain;  (2) whether the violation was deliberate or inadvertent;  (3) whether circumstances have changed between entry of the plea and the time of sentencing;  and (4) whether additional information has been obtained that, if not considered, would constrain the court to an inappropriate disposition.   Due process does not compel the application of a particular remedy in all cases.   The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges or to specifically enforce the plea bargain.   Withdrawal of the plea is the appropriate remedy when specifically enforcing the bargain would limit the judge's sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing.   Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition he or she considers unsuitable under all the circumstances.   (People v. Mancheno (1982) 32 Cal.3d 855, 860–861, 187 Cal.Rptr. 441, 654 P.2d 211.)

 In the instant case, defendant observes “sex [offender] registration does not lend itself to a remedy of substantial specific performance as was fashioned with regard to a restitution fine in Walker.”   Defendant's observation is well taken.   Like the restitution fine in Walker, sex offender registration is statutorily mandated and may not be stricken.   However, unlike Walker, there is simply no way to achieve substantial compliance with the terms of the plea bargain without violating the statutory requirement of sex offender registration.   As defendant points out, sex offender registration differs from a restitution fine in that it has no minimal component.   Rather, the statutory requirement is always punitive.   Thus, to reaffirm the bargain here, including the sex offender registration requirement, without affording defendant the option of withdrawing his plea and proceeding to trial on the original charges, would constitute denial of a substantial right with punitive consequences.   The matter must be remanded to the trial court to allow defendant either to reaffirm the original bargain, including the sex offender registration requirement, or, alternatively, to withdraw his plea.   However, should defendant fail to move to withdraw his plea within 30 days of the filing of the remittitur, the judgment is affirmed.  (People v. Glennon (1990) 225 Cal.App.3d 101, 106, 276 Cal.Rptr. 1.)

III ***


The matter is remanded to the superior court to allow defendant the opportunity to withdraw his plea.   Should defendant fail to do so within 30 days of the filing of the remittitur, the judgment is affirmed.


FOOTNOTE.   See footnote * ante.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

STONE (Wm. A.), and DIBIASO, JJ., concur.