THE PEOPLE v. GEROME HENDRICKS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Gerome Hendricks pleaded no contest to spousal rape (Pen.Code, § 262, subd. (a)(1)) ¹ after he subjected his wife to vaginal and anal sex against her will.   As part of the negotiated plea agreement, Hendricks also admitted the special allegation he had previously served a separate prison term for a felony (§ 667.5, subd. (b)).  As agreed, Hendricks was sentenced to an aggregate state prison term of four years;  and the remaining charges were dismissed.   On appeal, Hendricks contends the trial court imposed an unauthorized sentence in ordering him to register as a sex offender.   We order limited remand and otherwise affirm the judgment.

PROCEDURAL BACKGROUND

Hendricks was charged by amended information with spousal rape (§ 262, subd. (a)(1), count 1);  sodomy by use of force (§ 286, subd. (c)(2), counts 2 & 4);  sexual penetration by a foreign object (§ 289, subd. (a)(1), count 3);  and corporal injury to a spouse (§ 273.5, subd. (a), count 5).   As to count 5, the information alleged Hendricks had suffered a prior conviction for corporal injury to a spouse within the past seven years.   As to counts 1 through 4, the information alleged Hendricks committed the offenses with knowledge he had acquired immune deficiency syndrome (AIDS) (§ 12022.85);  and as to all counts, the information alleged Hendricks personally inflicted great bodily injury (§ 12022.7, subd. (e)).  As to counts 1 through 3, the information specially alleged Hendricks had suffered one prior serious or violent felony conviction, which qualified him for sentencing under the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subd. (a)) and under section 667, subdivision (a)(1);  and he had previously served two prison terms for felonies (§ 667.5, subd. (b)).  Hendricks pleaded not guilty and denied the special allegations.

Hendricks was represented by appointed counsel at the plea hearing.   Hendricks was advised of his constitutional rights and the terms of his plea agreement, which were to plead no contest to the section 262, subdivision (a)(1) count, to admit the prior prison term enhancement allegation and to be sentenced to state prison for four years (the three-year lower term for the spousal rape offense plus a one-year term for the prior prison term enhancement).   Hendricks was also informed, as a consequence of his plea, he would be required to register as a sex offender for his lifetime under section 290, to provide a DNA sample, and to pay a $300 habitual offender fine, an $800 victim restitution fine, a $20 court security fee, plus penalty assessments and surcharge fees.

Hendricks answered he understood and waived his constitutional rights and understood and accepted the terms of his plea agreement.

Defense counsel joined in the waivers of Hendricks's constitutional rights and concurred in the plea and admission.   The trial court expressly found Hendricks's waivers, plead and admission were voluntary, knowing and intelligent.   The court also found, and defense counsel stipulated to, a factual basis for Hendricks's plea and admission.

At the sentencing hearing, before a different bench officer,² Hendricks was sentenced to the four-year term in accordance with the plea agreement.   Without defense objection, the court ordered Hendricks to register as a sex offender for his lifetime under section 290.   The remaining counts and special allegations were dismissed on the People's motion.

On appeal, Hendricks challenges only the trial court's order he register as a sex offender for a lifetime, contending it is not authorized in the absence of a factual basis.   In addition to arguing the requirement that Hendricks register as a sex offender is permissible under the circumstances of this case, the People maintain that the appeal should be dismissed in the absence of a certificate of probable cause ³ and that Hendricks forfeited his claim because he failed to object to the registration requirement in the trial court.

DISCUSSION

1.  Hendricks's Claim is Cognizable on Appeal

Section 1237.5, subdivision (a), provides a defendant may not appeal from a judgment of conviction entered on a plea of guilty or no contest unless he or she has filed a statement with the trial court “showing the reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” and has obtained a certificate of probable cause for the appeal.   (See People v. Mendez (1991) 19 Cal.4th 1084, 1096;  Cal. Rules of Court, rule 8.304(a)(1).)   However, if the appeal is based solely on grounds occurring after entry of the plea that do now challenge its validity, such as sentencing issues not specifically incorporated into the plea agreement itself, a certificate of probable cause is not required.  (Cal. Rules of Court, rule 8.304(b)(4)(B);  People v. Cuevas (2008) 44 Cal.4th 374, 379.)

The People contend the order that Hendricks register as a sex offender was an integral part of the plea agreement and, therefore, cannot be challenged on appeal without also attacking the validity of the plea itself.  (See People v. Cuevas, supra, 44 Cal.4th at pp. 381-382;  People v. Panizzon (1996) 13 Cal.4th 68, 78.)   Thus, the People argue, Hendricks's notice of appeal is inoperative, and the appeal must be dismissed.

Contrary to the People's argument, the record shows the sex offender registration requirement was not part of the negotiated plea agreement.   The only penalty specified for Hendricks's agreement to plead no contest to the one count of spousal rape and to admit the prior prison term enhancement allegation was an aggregate state prison term of four years.   Indeed, when taking Hendricks's plea, the trial court did not state Hendricks was required to register as a sex offender as a term or condition of the plea agreement.   The court did advise Hendricks the lifetime sex offender registration requirement was a consequence of his plea, as were his obligation to submit a DNA sample and to pay fines and victim restitution.   But none of those “consequences” is an element of the agreement itself, and could not be.   Registration as a sex offender under section 290 is mandatory and is not a permissible subject of a negotiated plea agreement.  (People v. Hernandez (2008) 166 Cal.App.4th 641, 647;  People v. McClellan (1993) 6 Cal.4th 367, 380.)   It cannot be circumvented by plea agreement.  (Hernandez, supra, at p. 647;  People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.)   Accordingly, Hendricks's appeal is not tantamount to a challenge to the validity of the plea, but rather an attack on a sentencing or post-plea issue for which a certificate of probable cause is unnecessary.  (See Panizzon, supra, 13 Cal.4th at p. 76.)

2. The Order Hendricks is to Register as a Sex Offender Under Section 290 is Stricken as Unauthorized and the Cause Remanded for the Court to Exercise Its Discretion Under Section 290.006

Hendricks was charged in count 1 with spousal rape.   As reflected in the amended information, spousal rape can be committed by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”  (Emphasis added;  § 262, subd. (a)(1).)   Pursuant to section 290, a person convicted of spousal rape under “[s]ection 262 involving the use of force or violence for which the person is sentenced to the state prison” must comply with a lifetime duty to register as a sex offender.  (Emphasis added;  § 290, subd. (c).)

Relying on People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez ), Hendricks contends because his no contest plea was merely to a violation of section 262, subdivision (a)(1), without an acknowledgment he was pleading to the offense “as charged” or an admission of any underlying facts, it proved nothing more than the least adjudicated elements of the charged offense.   Thus, Hendricks argues, the plea was insufficient to permit the court to compel him to register as a sex offender under section 290 for having committed spousal rape involving the use of force or violence.  Rodriguez addressed the means of proving a prior conviction as an alleged sentence enhancement, where the prior conviction was for an offense that could be committed in multiple ways.   The California Supreme Court held in such a case, if the record of conviction fails to disclose the manner in which the offense was committed, then the trial court must presume the conviction was for the least serious form of the offense.  (Rodriguez, supra, 17 Cal.4th at p. 262.)   However, in the context of Hendricks's conviction in this case, a plea to the least adjudicated elements of the offense-spousal rape without involving force or violence-does not necessarily relieve Hendricks from the consequence of having to register as a sex offender.

When a defendant is not subject to mandatory registration, section 290.006 permits the trial court to impose discretionary lifetime registration,⁴ if the crime was committed as a result of sexual compulsion or for purposes of sexual gratification.   If the court determines the act was committed for such a purpose, it must then decide whether to exercise its discretionary authority to require registration and state the reasons for its decision. (§ 290.006;  People v. Hofsheier, supra, 37 Cal.4th 1197.)   However, although we strike the mandatory registration requirement imposed under section 290, we remand for the limited purpose of a discretionary determination whether Hendricks should be required to register under section 290.006.

DISPOSITION

We strike the sex registration requirement imposed under section 290 and remand for the limited purpose of allowing the trial court to apply section 290.006 in this case.   In all other respects, we affirm the judgment.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. Hendricks waived his right to be sentenced by the same judicial officer who accepted his plea (People v. Arbuckle (1978) 22 Cal.3d 749)..  FN2. Hendricks waived his right to be sentenced by the same judicial officer who accepted his plea (People v. Arbuckle (1978) 22 Cal.3d 749).

FN3. Following entry of judgment, Hendricks filed a timely notice of appeal, checking the preprinted boxes indicating, “This appeal is based on the sentence or other matters occurring after the plea;” and, “This appeal challenges the validity of the plea or admission.”   Hendricks also requested a certificate of probable cause primarily claiming he had been coerced into accepting the plea agreement and wanted to withdraw his plea.   The trial court denied the request..  FN3. Following entry of judgment, Hendricks filed a timely notice of appeal, checking the preprinted boxes indicating, “This appeal is based on the sentence or other matters occurring after the plea;” and, “This appeal challenges the validity of the plea or admission.”   Hendricks also requested a certificate of probable cause primarily claiming he had been coerced into accepting the plea agreement and wanted to withdraw his plea.   The trial court denied the request.

FN4. Section 290.006 provides:  “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.   The court shall state on the record the reasons for its findings and the reasons for requiring registration.”.  FN4. Section 290.006 provides:  “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.   The court shall state on the record the reasons for its findings and the reasons for requiring registration.”

WOODS, Acting P.J. JACKSON, J.