Filed 12/13/19 P. v. Hattem CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

REBECCA JEAN VAN HATTEM,

Defendant and Appellant.

A157313

(Contra Costa County

Super. Ct. No. 01-183466-2)

Defendant Rebecca van Hattem pled guilty to four counts of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)) and, pursuant to a negotiated disposition, was sentenced to a split sentence (§ 1170, subd. (h)(5)) comprised of two years in county jail and two years on mandatory supervision by the county probation department. Following her release from county jail, a disagreement arose regarding whether she was required to register as a sex offender. Following a hearing, the court entered the challenged order holding that defendant had agreed as part of the negotiated plea to a lifetime registration requirement under section 290. We conclude that the parties agreed to imposition of a registration requirement for the duration of the period of defendant’s mandatory supervision, not a lifetime registration requirement under section 290. We shall therefore reverse the order and remand for the trial court to impose the agreed-upon condition of defendant’s mandatory supervision.

Background

On January 16, 2018, defendant pled guilty to four counts of unlawful sexual intercourse with an indicated split prison term sentence totaling four years. The plea form signed by defendant includes the following advisements: (1) “If I receive a split sentence, I understand that the court will suspend execution of a concluding portion of the term and I will be placed on mandatory supervision by probation. The court may impose on that period of mandatory supervision any conditions that are reasonably related to the charge(s) to which I am pleading guilty.” And (2) “I understand that conviction of the charge(s) will subject me to registration requirements.”

On February 27, 2108, defendant was sentenced to a split sentence in conformity with the plea agreement. Attached to the court’s minute order is a document entitled “Felony Order of Probation / Supervision” which in turn incorporates a document captioned “SEX OFFENDER CONDITIONS OF PROBATION.” (Italics added.)” As relevant here, the conditions require defendant to “register per the terms and conditions as a sex offender pursuant to Penal Code section 290.” Defendant and her attorney signed the acknowledgement that she read and discussed the sex offender conditions of probation with her attorney and that she understood and agreed to the conditions. At the hearing, the court confirmed that defendant had signed and dated the sex offender conditions of probation form and then asked defendant: “And you understand that these are terms and conditions by which you must abide during the period of probation?” (Italics added.) Defendant responded, “Yes.”

The abstract of judgment filed on February 27, 2018 does not indicate that defendant is subject to a registration requirement.

In February 2019, after serving her county jail term and being placed on mandatory supervision, the prosecutor sought clarification from the trial court regarding defendant’s obligation to register. Following a hearing on March 20, 2019, the court found that under the terms of her negotiated plea, defendant was subject to a lifetime registration requirement pursuant to section 290. Defendant appealed the March 2019 order.

Discussion

Section 290, subdivision (b) of the Sex Offender Registration Act requires that individuals convicted of crimes specified in subdivision (c) register as sex offenders “for the rest of his or her life while residing in California.” As to persons convicted of other offenses, section 290.006, subdivision (a) vests the trial court with discretion to impose the registration requirement “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.” In order for the trial court to impose the discretionary registration requirement, the statute requires that it “shall state on the record the reasons for its findings and the reasons for requiring registration.” (Ibid.) Whether registration is mandatory or discretionary, once the court imposes registration, the statute imposes the same lifetime obligation to register. (§§ 290, 290.006, 290.013.)

Defendant’s convictions for unlawful intercourse with a minor under section 261.5, subdivision (c) are not included in section 290, subdivision (c), and the trial court did not make the findings necessary to support discretionary imposition of the registration requirement. Rather, the trial court found that defendant agreed to the registration requirement as part of her plea bargain.

“A plea bargain is a negotiated agreement between the prosecution and the defendant by which a defendant pleads guilty to one or more charges in return for dismissal of one or more other charges. [Citation.] . . . [Citation.] . . . [Citation.] [¶] Because a negotiated plea agreement is in the nature of a contract, ‘it is interpreted according to general contract principles.’ ” (People v. Martin (2010) 51 Cal.4th 75, 79.) “ ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.) “ ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.’ ” (Ibid.) “ ‘[T]he course of actual performance by the parties is considered the best indication of what the parties intended the writing to mean.’ ” (Epic Communications, Inc. v. Richwave Technology, Inc. (2015) 237 Cal.App.4th 1342, 1355.)

In interpreting a plea agreement on appeal, this court “applies the standards of review applicable to contracts generally. [Citation.] ‘[T]he “interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.” ’ ” (In re Ricardo C. (2013) 220 Cal.App.4th 688, 696.) We interpret the plea agreement “according to the general rule ‘that ambiguities are construed in favor of the defendant.’ ” (People v. Toscano (2004) 124 Cal.App.4th 340, 345 [“ ‘Focusing on the defendant’s reasonable understanding also reflects the proper constitutional focus on what induced the defendant to plead guilty.’ ”].)

Contrary to the conclusion reached by the trial court, the record does not support a finding that defendant consented to lifetime sex offender registration under section 290 as part of the plea bargain. The record does, however, support a finding that defendant agreed to imposition of a registration requirement during the period of her supervision by the probation department.

Defendant was originally charged with 17 counts, six of which would have resulted in mandatory lifetime registration had she been tried and convicted. (§§ 288.3, 288.4, 286, former § 288a.) A lifetime registration requirement has been characterized as a “ ‘grave . . . consequence’ ” of a conviction. (People v. Olea (1997) 59 Cal.App.4th 1289, 1296, quoting In re Birch (1973) 10 Cal.3d 314, 322 and People v. McClellan (1993) 6 Cal.4th 367, 376.) By pleading to the section 261.5 subdivision (c) offenses, defendant avoided the mandatory lifetime registration requirement. Nonetheless, as set forth above, she did agree to be subject to “registration requirements.” At the time of her plea, no mention was made of section 290 and defendant was not asked to admit the factual predicate for discretionary registration under section 290.006. At that time caselaw recognized that the court’s broad discretion to set the terms of probation included imposition of a registration requirement that, unlike the section 290 lifetime requirement, would remain in effect only for the duration of the period of probation. (See People v. King (2007) 151 Cal.App.4th 1304, 1308-1309 [“[R]egistration requirement was not imposed under the provisions of subdivision (a)(2)(E) of section 290” but under the trial court’s broad discretion to impose conditions of probation.].) The same authority supported imposition of a registration requirement for the duration of the period of mandatory supervision. (See People v. Martinez (2014) 226 Cal.App.4th 759, 764 [Courts generally have “broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety.”].) Absent the defendant’s clear consent, we cannot read her agreement to be subject to a registration requirement “during the period of probation” to mean that she agreed to a lifetime registration requirement.

As defendant notes, subsequent to her plea and sentencing, at least one court has held that a registration requirement limited in duration to the period of supervision may not be imposed as a condition of probation. (People v. Eastman (2018) 26 Cal.App.5th 638, 646 [strict adherence to “comprehensive, standardized, statewide scheme” precludes “altering” lifetime registration requirement as probation term].) Eastman, however, was decided after defendant pled and was sentenced, and thus does not alter the apparent understanding of the parties at the time her plea was negotiated.

Assuming, as defendant argues, that the probation condition was invalid when imposed, defendant’s opportunity to challenge the validity of that requirement has long passed. Defendant did not appeal the judgment when entered and she could not have done so without obtaining a certificate of probable cause. (People v. Brown (2007) 147 Cal.App.4th 1213, 1220 [“When a defendant raises a claim . . . that the trial court lacked authority to impose the negotiated sentence, the challenge is, in substance, an attack on the validity of the plea, requiring a certificate of probable cause.”].)

Moreover, while defendant asks this court to strike the condition as invalid, the condition was clearly part of the plea agreement. Defendant has not indicated that she wishes to withdraw her plea and, in all events, the invalidity of the probation condition would not likely provide a ground for withdrawal. To demonstrate good cause to withdraw her plea, a defendant “must present clear and convincing evidence” that defendant pled based on “ ‘[m]istake, ignorance or any other factor overcoming the exercise of free judgment.’ ” (People v. Patterson (2017) 2 Cal.5th 885, 894.) Such evidence is thus dependent on the defendant’s subjective understanding of that plea, not necessarily the legal validity of the sentence. Given defendant’s explicit assurances that she understood the condition and her express acceptance of the condition, her ability to establish mistake or ignorance is, to say the least, seriously compromised.

Disposition

The order on appeal is reversed and the matter is remanded with the instruction to enter a new order directing defendant to comply with the statutory registration requirements during the period of her mandatory supervision.

 

_________________________

POLLAK, P. J.

WE CONCUR:

_________________________

STREETER, J.

_________________________

TUCHER, J.

A157313