In re Luisa Z.

• Decision Date: 29 February 2000
• Docket Number: No. F033011.,F033011.
• Citation: 78 Cal.App.4th 978,93 Cal.Rptr.2d 231
• Parties: In re LUISA Z., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Luisa Z., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

93 Cal.Rptr.2d 231

78 Cal.App.4th 978

In re LUISA Z., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Luisa Z., Defendant and Appellant.

No. F033011.

Court of Appeal, Fifth District.

February 29, 2000.

Certified for Partial Publication.^*

Francine R. Adkins Tone, under appointment by the Court of Appeal, San Jose, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Charles Fennessey, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HARRIS, J.

INTRODUCTION

Appellant Luisa Z. was arrested for possession of marijuana for sale. The juvenile court initially placed her on informal probation, but appellant violated probation, and the juvenile court committed her to the California Youth Authority (CYA). The court also ordered her to register as a narcotics offender, pursuant to Health and Safety Code section 11590, subdivision (a), upon her "release" from CYA.

In the nonpublished portion of this opinion, we will conclude the juvenile court did not abuse its discretion in committing appellant to CYA. In the published portion we will find the juvenile court lacked statutory authority to order a juvenile to register as a narcotics offender.

STATEMENT OF THE CASE AND FACTS^**

DISCUSSION

I.^**

II. REGISTRATION AS A DRUG OFFENDER

The trial court committed appellant to CYA for a period not to exceed three years based on her admission that she possessed marijuana for sale in violation of Health and Safety Code¹ section 11359, and her violation of probation. The court also ordered appellant to register as a narcotics offender pursuant to Health and Safety Code section 11590, subdivision (a) upon her "release" from CYA. Appellant did not object to the imposition of the registration order.

Appellant asserts such a registration requirement can only be based on a criminal conviction rather than a juvenile adjudication, and the court lacked statutory authority to impose the registration requirement.

Respondent asserts appellant has waived any challenge to the court's failure to advise her of the registration order because she did not object at the disposition hearing. In the alternative, respondent asserts that even if appellant did not waive this objection, she cannot show prejudice because the trial court had the authority to require a juvenile to register as a narcotics offender.

In order to resolve these issues, we must first determine whether appellant's failure to object to the registration order waived review of this issue. Appellant asserts the court lacked the authority to impose such an order, and thus imposed an unauthorized sentence which may be challenged despite her failure to raise the issue below. Second, we must determine whether appellant, as an adjudicated juvenile committed to CYA, is a person within the narcotics registration statutes. Third, we must determine whether the court exceeded its authority in imposing such an order at the disposition hearing.

A. The registration requirement

Respondent is correct that any objection to the court's failure to advise the party of a registration requirement is waived if not raised when the registration order is formally imposed, absent a showing of prejudice. (People v. McClellan (1993) 6 Cal.4th 367, 378, 24 Cal.Rptr.2d 739, 862 P.2d 739.) However, appellant asserts the registration order exceeded the court's statutory authority, and thus constituted an unauthorized sentence, which may be challenged despite failing to raise the issue at the disposition hearing. If the court lacked statutory authority to order a person to register as a narcotics offender, then that aspect of the disposition order was unauthorized and appellant's failure to object does not constitute waiver of the contention on appeal. (See People v. Brun (1989) 212 Cal.App.3d 951, 954, 260 Cal. Rptr. 850; People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Thus, we must review the narcotics offender registration requirements to determine whether the court's order may be reviewed as exceeding its jurisdiction.

"Registration requirements generally are based on the assumption that persons convicted of certain offenses are more likely to repeat the crimes and that law enforcement's ability to prevent certain crimes and its ability to apprehend certain types of criminals will be improved if these repeat offenders' whereabouts are known. (3 Witkin & Epstein, Cal.Criminal Law (2d ed.1989) § 1416, p. 1678.) Accordingly, the Legislature has determined that sex offenders (Pen.Code, § 290), narcotics offenders (Health & Saf.Code, § 11590) and arsonists (Pen.Code, § 457.1) are likely to repeat their offenses and therefore are subject to registration requirements." (People v. Adams (1990) 224 Cal.App.3d 705, 710, 274 Cal.Rptr. 94.)

The trial court herein relied on section 11590, subdivision (a) which requires the registration as a narcotics offender by "any person who is convicted" of one of the enumerated narcotics offenses; "any person who is discharged or paroled from a penal institution where he or she was confined because of the commission of any such offense"; or any person who arrives in the state having an out-of-state conviction which would qualify as one of the enumerated narcotics offenses in California. While section 11590 creates a duty on any person within its terms to comply with the registration provisions, it does not give rise to a concomitant duty on the part of the trial court to order a convicted person to comply with such registration provisions. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1258, 82 Cal.Rptr.2d 231.) In addition, registration does not constitute "punishment" for purposes of ex post facto analysis. (People v. Castellanos (1999) 21 Cal.4th 785, 799, 88 Cal.Rptr.2d 346, 982P.2d 211.)

The section 11590, subdivision (a) registration requirement triggers associated statutory obligations, such as maintaining current registration and furnishing fingerprints and photographs to the Department of Justice. The registrant is subject to police inquiry in the event crimes similar to those for which he or she has registered have occurred. Anyone who fails to comply with the registration requirement is guilty of a misdemeanor. (§ 11594; People v. Villela (1994) 25 Cal.App.4th 54, 60, 30 Cal.Rptr.2d 253; People v. Brun, supra, 212 Cal.App.3d at p. 955, 260 Cal.Rptr. 850.)

The purpose of section 11590's registration requirement is to deter recidivism by facilitating the apprehension of past offenders. (People v. Villela, supra, 25 Cal.App.4th at p. 60, 30 Cal.Rptr.2d 253; People v. Brun, supra, 212 Cal. App.3d at p. 955, 260 Cal.Rptr. 850.) It has survived constitutional scrutiny based on the rational legislative basis for collecting and maintaining information concerning the whereabouts of drug offenders convicted of certain more serious drug offenses, such as possessing marijuana for sale. Retaining such information is properly within the exercise of the state's right to enact laws promoting public health, welfare and safety, by permitting local police to keep track of the identities and locations of drug offenders in the community. (People v. Hove (1992) 7 Cal.App.4th 1003, 1006, 9 Cal.Rptr.2d 295.) Moreover, the registration requirement is designed to minimize the intrusion into individual privacy. The information contained in the section 11590 registration shall not be open to inspection by the public or by any person other than a regularly employed peace officer or other law enforcement officer, and the registration requirement terminates in five years. (People v. Hove, supra, 7 Cal.App.4th at p. 1007, fn. 7, 9 Cal.Rptr.2d 295; People v. Terrell, supra, 69 Cal.App.4th at p. 1258, 82 Cal.Rptr.2d 231.) Finally, the registration requirement has been found reasonable in light of the offense and the danger to society. "Possessing marijuana for sale is analogous to cultivating marijuana in that it is the beginning of a process which ultimately places an illegal substance in the hands of a great number of consumers. [Citation.]" (People v. Hove, supra, 7 Cal.App.4th at p. 1007, 9 Cal.Rptr.2d 295.) For example, Hove dealt with a defendant ordered to register based on his conviction for possessing six and one-half pounds of marijuana for sale. "Given the quantity of marijuana found, the offense and the offender present a significant danger to society." (Ibid.) In section 11590, the Legislature has expressed an intent to differentiate between various drug-related offenses and to require registration only for designated narcotics violations. "Had the Legislature intended to require all drug offenders to register, it could have drafted the statute to accomplish that purpose. The sentencing court is therefore not free to impose registration under section 11590 for convictions of crimes not listed in the statute. If it were otherwise, every sentencing court could nullify the Legislature's decision to treat convictions for different crimes in a different manner." (People v. Brun, supra, 212 Cal.App.3d at p. 954, 260 Cal. Rptr. 850.) The court cannot subject a party to these specific statutory obligations and disabilities where the Legislature, by its omission of defendant's crime from section 11590, has manifested an intent that registration is not required. (People v. Brun, supra, 212 Cal.App.3d at p. 955, 260 Cal.Rptr. 850.)

Thus, the juvenile court may have exceeded its authority and imposed an unauthorized order if section 11590, subdivision (a) does not permit the imposition of a registration requirement on a juvenile adjudicated a ward of the court and committed to CYA. (See People v. Villela, supra, 25 Cal.App.4th at p. 58, 30 Cal.Rptr.2d 253; People v. Saunders (1991) 232 Cal. App.3d 1592, 1598, 284 Cal.Rptr. 212.) Appellant's failure to challenge the registration...