John Doe v. Harris

• Decision Date: 01 July 2013
• Docket Number: No. S191948.,S191948.
• Citation: 57 Cal.4th 64,158 Cal.Rptr.3d 290,302 P.3d 598
• Court: California Supreme Court
• Parties: John DOE, Plaintiff and Respondent, v. Kamala D. HARRIS, as Attorney General, etc., Defendant and Appellant.

57 Cal.4th 64

302 P.3d 598

158 Cal.Rptr.3d 290

John DOE, Plaintiff and Respondent,

v.Kamala D. HARRIS, as Attorney General, etc., Defendant and Appellant.

No. S191948.

Supreme Court of California

July 1, 2013.

See4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 339.

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, Michael Romano and Gary Dubcoff, San Francisco, for Plaintiff and Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Peggy S. Ruffra, Deputy Attorneys General, for Defendant and Appellant.

KENNARD, J.

[1]The federal Ninth Circuit Court of Appeals, which is considering a claim by plaintiff that his plea agreement would be violated by requiring him to comply with postconviction amendments to California's Sex Offender Registration Act, Penal Code section 290 et seq.,¹ requested an answer to the following quesTION: “whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law.”We accepted the request and slightly rephrased the question as: “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”We respond that the general rule in California is that the plea agreement will be “ ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....’ ”( People v. Gipson(2004)117 Cal.App.4th 1065, 1070, 12 Cal.Rptr.3d 478( Gipson ).)That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.

BACKGROUND

In 1991, plaintiff, who is proceeding under the pseudonym “John Doe,” was charged with six counts of lewd and lascivious acts upon a child under the age of 14 (former § 288, subd. (a)), an offense subject to the registration requirements of former section 290(as amended byStats.1989, ch. 1407, § 4, pp. 6191–6195).In August of that year, Doe entered into a plea agreement under which he agreed to plead nolo contendere to a single count in exchange for the dismissal of the others.The written change of plea form, which Doe signed, recited that the maximum penalties for Doe's conviction would be probation, participation in a work furlough program, fines, testing as required by former section 290.2, and registration as a sex offender under section 290.The superior court accepted the plea, entered judgment convicting Doe of a single count of committing a lewd and lascivious act on a child under the age of 14, and sentenced him in accordance with the plea agreement.

Doe registered as required by section 290.The statute at that time required persons convicted of specified sex offenses, including former section 288, subdivision (a), to register and to provide their fingerprints and photographs.(Former § 290, subd. (e).)It also recited: “[T]he statements, photographs, and fingerprints herein required shall not be open to inspection by the public or by any person other than a regularly employed peace or other law enforcement officer.”(Former § 290, subd. (i).)But the Legislature later adopted “Megan's Law”(§ 290.46, added by Stats.2004, ch. 745, § 1, pp. 5798–5803), which among other things, provides a means by which the public can obtain the names, addresses, and photographs of the state's registered sex offenders.The Legislature further specifically and expressly mandated that the public notification provisions of the law are “applicable to every person described in this section, without regard to when his or her crimes were committed or his or her duty to register pursuant to Section 290 arose, and to every offense described in this section, regardless of when it was committed.”(§ 290.46, subd. (m).)The Legislature accordingly made the public notification provisions retroactive and thus applicable to Doe's conviction.

In 2007, Doe filed a civil complaint in the United States District Court, asserting that requiring him to comply with the amended law's public notification provisions would violate his plea agreement.As explained to us by the Ninth Circuit, the district court, after hearing the testimony of the prosecutor, the defense attorneys involved in the case and Doe, found the parties had not discussed section 290 during their plea negotiations except to acknowledge Doe was required to comply with its requirements.In addition, the written change of plea form, executed when Doe changed his plea from not guilty to nolo contendere, although including a reference to Doe's obligation to register in accordance with section 290, did not state what the sex registration requirements were or what section 290 required Doe to do.And finally, neither the parties' plea negotiations, nor the change of plea form, nor the plea agreement considered or addressed the possibility future legislation might change the sex registration requirements.

The district court nonetheless concluded that publicly disclosing any of Doe's previously confidential sex offender registration information would violate the terms of Doe's plea agreement, explaining, “one cannot reasonably interpret the language of the plea agreement, which reads ‘P.C. 290,’ to mean [anything] other than compliance with that section of the Penal Code, as it was written at the time of the plea.”It found, further, that allowing Doe to withdraw his plea at “this late point in time” would be “a useless exercise.”It therefore issued an injunction barring the Attorney General from disclosing Doe's information, ruling Doe was not subject to postconviction amendments to the registration requirements.

The Attorney General appealed to the Ninth Circuit, which directed its request to us, asserting that as a result of perceived inconsistencies between the decisions in Swenson v. File(1970)3 Cal.3d 389, 90 Cal.Rptr. 580, 475 P.2d 852( Swenson )andPeople v. Arata(2007)151 Cal.App.4th 778, 60 Cal.Rptr.3d 160 and those in In re Lowe(2005)130 Cal.App.4th 1405, 31 Cal.Rptr.3d 1,Gipson, supra,117 Cal.App.4th 1065, 12 Cal.Rptr.3d 478, andPeople v. Acuna(2000)77 Cal.App.4th 1056, 92 Cal.Rptr.2d 224, the action presents an unsettled question of California law which could determine the outcome of the case.( Doe v. Harris(2011)640 F.3d 972.)

DISCUSSION

I.

Our task is limited.We are not here concerned with the restrictions imposed by the federal and state Constitutions on the Legislature's power to legislate retroactively.(See, e.g., In re Marriage of Buol(1985)39 Cal.3d 751, 756, 218 Cal.Rptr. 31, 705 P.2d 354[“[R]etrospective application of a statute may be unconstitutional if it is an ex post facto law, if it deprives a person of a vested right without due process of law, or if it impairs the obligation of a contract.”].)For present purposes, we assume the Legislature's decision to make the amendments to the sex registration requirements retroactive comports with federal and state constitutional requirements, including due process, the prohibition against ex post facto laws, and the federal and state contract clauses that prohibit states from passing laws impairing the obligation of contracts.

We also do not assess the merits of the parties' factual assertions or consider whether the district court's factual findings, as explained to us by the Ninth Circuit, are supported by the evidence.(SeePooshs v. Philip Morris USA, Inc.(2011)51 Cal.4th 788, 793, 123 Cal.Rptr.3d 578, 250 P.3d 181.)We accordingly accept as true the Ninth Circuit's representation that neither the parties' negotiations nor the express terms of the plea agreement addressed whether Doe's identity would remain forever confidential or included an affirmative promise that Doe would be exempt from changes in the law affecting persons convicted of his offense.

Doe argues we must also accept as true what he characterizes as the district court's factual determination that the plea bargain contained an implied promise that the privacy protections contained in the law in effect at the time of his plea would govern his future obligations.But although the district court's determination of what the parties said, did, and subjectively believed are factual findings, its determination of the legal effect of the parties' communications and beliefs presents an issue of law.(SeeGarcia v. Truck Ins. Exchange(1984)36 Cal.3d 426, 439, 204 Cal.Rptr. 435, 682 P.2d 1100;Parsons v. Bristol Development Co.(1965)62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839.)Moreover, as we understand the situation, the Ninth Circuit intends to review the district court's conclusion that the plea agreement's reference to section 290 was in effect a promise that Doe would not be required to comply with any later amendments to that section.It has requested our guidance on a rule of contract interpretation to ensure its decision on that point is consistent with California law.

II.

We turn now to the issue that does concern us: whether the rule in California is that the terms of a plea agreement incorporate existing law to the exclusion of any retroactive amendments to the law or whether, as asserted by the court in Gipson, supra,117 Cal.App.4th at page 1070, 12 Cal.Rptr.3d 478, plea bargains in California are “ ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....’ ”

The Ninth Circuit cited a possible tension...