In re Stier

• Decision Date: 15 June 2007
• Docket Number: No. A112248.,A112248.
• Citation: 61 Cal.Rptr.3d 181,152 Cal.App.4th 63
• Court: California Court of Appeals Court of Appeals
• Parties: In re David Mark STIER on Habeas Corpus.

61 Cal.Rptr.3d 181

152 Cal.App.4th 63

In re David Mark STIER on Habeas Corpus.

No. A112248.

Court of Appeal, First District, Division 1.

June 15, 2007.

As Modified July 12, 2007.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R, Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share and Laurence K. Sullivan, Supervising Deputy Attorneys General, Amy Haddix, Deputy Attorney General, for Appellant the People.

Lynn Searle, San Francisco, for Respondent David Mark Stier.

SWAGER, J.

The Attorney General has taken this appeal from a judgment in this habeas corpus proceeding that discharged respondent from the duty to register as a sex offender pursuant to Penal Code section 290,¹ and removed his identity or any "information regarding him" from "databases of sexual offenders." We conclude that the Attorney General is not foreclosed by principles of waiver or estoppel from challenging the judgment in this appeal. We also conclude that the judgment granting respondent habeas corpus relief is in excess of the trial court's authority in the absence of evidence he was in actual or constructive custody. We therefore reverse the judgment and remand the case to the trial court to grant respondent the opportunity to file an appropriate action.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 1995, respondent, a physician who resides in San Francisco, began an internet and telephone relationship with Jill N., a 41-year-old woman who represented to him that her name was "Jill Armstrong,"² and that she was 18 years old. In February of 1996, while respondent was traveling to a professional conference in North Carolina he arranged to meet Jill at a hotel. In fact, the girl he met was Jill's 14-year-old daughter Lauren. Jill had persuaded or coerced her daughter to meet men for sexual contact. According to the petition, when respondent met Lauren she claimed to be 18-year-old Jill, and based upon her appearance and demeanor he believed her. The declarations of both respondent and Lauren maintain that they engaged in entirely consensual sexual contact — of a nature not disclosed by the record — during this single encounter.³ Respondent also asserted in the petition that he was "duped" as to "the girl's age" by Jill, and had no intent to engage in sex with an underage girl.

Two years later, a criminal investigation ensued in North Carolina during which respondent learned the "truth" of his encounter with Lauren. In March of 2000, respondent entered a guilty plea in North Carolina to taking indecent liberties with a child in violation of North Carolina General Statutes, section 14-202.1. Execution of sentence was suspended, and respondent was placed on felony probation for two years.⁴ The record on appeal does not indicate that respondent was ordered by the North Carolina judgment to register as a sex offender.⁵

Respondent's probation was thereafter transferred to San Francisco. Respondent was advised by his probation officer in California that he was required to register as a sex offender under section 290,⁶ and he did so. By 2002, respondent successfully completed his probation in the North Carolina case, but continued to register as a sex offender as required. He also reported his felony conviction to the California Medical Board (the Medical Board), and as part of a stipulated settlement agreed to five years of supervised probation. He received psychiatric evaluation as ordered by the Board, and was found fit to continue to practice medicine.

In 2003, Business and Professions Code section 2232 was enacted, which provides that the Medical Board "shall promptly revoke the license of any person who, at any time after January 1, 1947, has been required to register as a sex offender pursuant to the provisions of Section 290 of the Penal Code." In 2004, after section 2282 became effective, respondent was informed by the Medical Board that proceedings to revoke his medical license had been initiated "due to [his] registration status." Respondent declared that through his attorney he had contact with the Attorney General's Office about "medical licensure issues," and was advised that he is "not legally required to register" as a sex offender under section 290. Nevertheless, the Medical Board has indicated to respondent that proceedings to confiscate his medical license will continue unless he is relieved by court order of the obligation to register as a sex offender.

Respondent filed the present petition for writ of habeas corpus on December 17, 2004, which requested an order directing the Police Department of San Francisco and the State of California to desist from requiring him to comply with the sex offender registration requirements of section 290. Respondent has alleged in the petition that his liberty is "unlawfully restrained" and he is subject to "constructive custody" or may face "criminal prosecution" unless his duty to register is terminated.

On April 25, 2005, the trial court issued an order to show cause to the San Francisco District Attorney's Office and the California Attorney General's Office to appear and demonstrate "why [respondent] should be required to register under PC § 290."⁷ At a hearing on May 9, 2005, upon learning that the District Attorney's Office and the Attorney General's Office intended to oppose the petition, the court continued the matter for additional briefing or response, and set a further hearing on the matter for June 22, 2005. The District Attorney subsequently filed written opposition to the petition.⁸ The Attorney General's apparent sole opposition to the petition was to file a declaration to the effect that no opinion had been given to respondent that he "was not legally required to register as a sex offender," and a review of registration documents indicated he "is legally required to register as a sex offender."

The hearing was then continued until October 12, 2005. Neither the District Attorney nor the Attorney General filed any further response to the order to show cause. On October 5, 2005, a hearing occurred, without any appearance by the Attorney General. The record before us contains no information concerning the circumstances under which this hearing was set and no indication that the Attorney General's office was noticed or aware of this hearing.⁹ The District Attorney was present and stated that "the People are withdrawing their opposition to the defendant's petition." "In light of that" pronouncement by the District Attorney, the court issued the judgment granting the writ. This appeal by the Attorney General followed.

DISCUSSION

The Attorney General claims that the trial court erred by granting habeas corpus relief under section 1473 where respondent "was not in actual or constructive custody of the state at the time he filed his petition." The position of the Attorney General is that absent evidence of respondent's custody the trial court "lacked fundamental jurisdiction to grant habeas corpus relief." Appellant adds that even if the petition is considered on the merits respondent failed to offer evidence that he is not required to register as a sex offender in California under section 290, and thus he is not entitled to the relief granted.

I. Appellant's Failure to Oppose the Petition.

Respondent acknowledges that his petition for writ of habeas corpus was "an incorrect remedy," but argues that the Attorney General is foreclosed from contesting the ruling on the petition by failing to "answer the court's order to show cause or to oppose [the] respondent's writ petition in the trial court." Respondent maintains that the trial court did not lack "fundamental subject matter jurisdiction," and therefore the failure of the Attorney General to file written response to the order to show cause or appear at the hearing on October 5, 2005, to oppose the writ petition constitutes a "waiver or estoppel" on appeal. The Attorney General responds that jurisdiction "cannot be conferred by waiver, consent, or estoppel," so the issue of propriety of writ relief is cognizable in this appeal.

In resolving the waiver or estoppel issues, we are presented with a somewhat confusing and atypical series of procedural events. Respondent directed his petition to the San Francisco Police Department and the State of California, respectively. As related to the enforcement of the sex offender registration laws, the District Attorney represented the interests of the City and County of San Francisco, while the Attorney General represented the interests of the State of California, and the Medical Board, as the chief law enforcement officer of the state. (See Pitts v. County of Kern (1998) 17 Cal.4th 340, 357, 70 Cal.Rptr.2d 823, 949 P.2d 920; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14, 112 Cal.Rptr. 786, 520 P.2d 10; People v. Parmar (2001) 86 Cal. App.4th 781, 797-798, 104 Cal.Rptr.2d 31.)¹⁰ The order to show cause was directed to both the District Attorney and the Attorney General. The District Attorney filed written opposition to the petition, supplemented with a single supporting declaration from the Attorney General. The action then took an unusual twist when the scheduled hearing on the order to show cause was inexplicably advanced a week, the Attorney General failed to appear, and the District Attorney suddenly reversed its prior opposition to the petition. We thus are presented with essentially a concession by one representative of the People — the District Attorney — and a failure to appear or object under rather ambiguous circumstances by the other representative of the People — the Attorney General.

A Forfeiture or Waiver.

We have no doubt that the District Attorney entered a waiver of the right to contest the petition by formally withdrawing opposition and thereby effectively stipulating to entry of the judgment in favor of respondent. We do not, however, under the...