People v. Bennett

• Decision Date: 30 July 2013
• Docket Number: F064362
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHAD CECIL BENNETT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. CHAD CECIL BENNETT, Defendant and Appellant.

F064362

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: July 30, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F11905725)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Chad Cecil Bennett stands convicted, following his guilty plea, of unlawful sexual intercourse by a person 21 years of age or older with a minor under 16 years of age. (Pen. Code,¹ § 261.5, subd. (d).) Sentenced to three years in prison and ordered to pay various fees and fines, he now challenges imposition of a lifetime sex offender registration requirement and contends he is entitled to additional custody credits. We affirm the conviction, but remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY²

On September 30, 2011, defendant (then 28 years old) met the victim for the first time at a wedding reception. He asked her age and expressed surprise upon learning she was only 15. During the reception, when the victim mentioned she was going to use the bathroom, defendant directed her to a different bathroom. There, defendant (who was six feet three inches tall) forced the victim (who was five feet four inches tall) to orally copulate and have intercourse with him. As soon as she was able to run from the bathroom, the victim asked a friend to take her from the scene. As he was driving her away, she explained what had happened. The friend and his girlfriend convinced her to call the police. Contacted the next morning at his parents' house, defendant first denied anything happened, then maintained the sexual acts were consensual and he thought the victim was about 20 years old.

A felony complaint was subsequently filed in Fresno County Superior Court, charging defendant with commission of a lewd or lascivious act on a child who was 14 or 15 years old by a person at least 10 years older (§ 288, subd. (c)(1); count 1), oral copulation of a person under the age of 16 years by a person over the age of 21 years (§ 288a, subd. (b)(2); count 2), and unlawful sexual intercourse by a person over the ageof 21 years with a minor under the age of 16 years (§ 261.5, subd. (d); count 3). Defendant pled not guilty.

On December 7, 2011, defendant entered into a plea agreement pursuant to which he pled guilty to count 3 in return for dismissal of the remaining counts. In pertinent part, he was advised he could receive a maximum sentence of four years in prison; his was a "'[p]ossible AB 109'" case, meaning it would be determined at sentencing whether he was eligible to serve time in the county jail; and, as part of the consequences of his plea, it would be within the court's discretion whether to order lifelong registration pursuant to section 290, which also would be determined at the time of sentencing, following a section 288.1 evaluation.

On February 8, 2012, defendant was sentenced to prison for three years. Following review of the section 288.1 evaluation report and argument on the subject, the court found the offense was committed for purposes of sexual gratification, and ordered defendant to register as a sex offender for his lifetime. As a result, the court found defendant ineligible for local commitment pursuant to section 1170, subdivision (h).

DISCUSSION

A

Defendant contends the requirement that he register as a sex offender for his lifetime must be stricken because it increased the penalty for his offense based on facts he had the right to have a jury find true beyond a reasonable doubt. (See Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) He further asserts the entire discretionary registration scheme is constitutionally defective and must be "struck down completely."³

Section 290, subdivision (b) mandates lifetime registration for anyone convicted of an offense listed in subdivision (c) of the statute. Section 261.5 is not listed in subdivision (c) of section 290; hence, a person convicted of violating that statute is exempt from section 290's mandatory lifetime registration requirement. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197 (Hofsheier).)

This does not necessarily mean such a person escapes registration, however. Section 290.006 provides: "Any person ordered by any court to register pursuant to [section 290 et seq.] 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."

This statute (the terms of which previously were contained in subdivision (a)(2)(E) of section 290) "leaves the trial judge with the option of refusing to order registration." (Hofsheier, supra, 37 Cal.4th at p. 1197, italics added.) "[T]o implement the requirements of section [290.006], the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender. By requiring a separate statement of reasons for requiring registration even if the trial court finds the offense was committed as a result of sexual compulsion or for purposes of sexualgratification, the statute gives the trial court discretion to weigh the reasons for and against registration in each particular case." (Ibid., italics added.)

In defendant's case, the trial court found the offense was committed for purposes of sexual gratification. The United States Supreme Court has held, however, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) "[T]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he [or she] may impose without any additional findings." (Blakely v. Washington (2004) 542 U.S. 296, 303-304.)

The initial question, then, is whether discretionary sex offender registration pursuant to section 290.006 increased the penalty for defendant's crime beyond the prescribed statutory maximum. Defendant says discretionary registration constitutes punishment for two reasons. First, section 3003.5, subdivision (b) makes it "unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather."⁴ Second, section 1170, subdivision (h)(3) excludes anyone required to register as a sex offender from being sentenced under the provisions of subdivision (h) of section 1170.⁵ Had a sex offender registration requirement not been imposed on defendant, he would have been permitted to serve his time in county jail, eligible for a hybrid sentence, andnot subject to parole or postrelease community supervision. (§§ 261.5, subd. (d), 1170, subd. (h)(2) & (5), 3000, subd. (a)(1), 3450 et seq.)

The United States Supreme Court has held that sex offender registration does not constitute punishment. (Smith v. Doe (2003) 538 U.S. 84, 89, 105-106.) The California Supreme Court has reached the same conclusion with respect to California's statutory scheme, despite recognizing registration "imposes a 'substantial' and 'onerous' burden. [Citations.]" (Hofsheier, supra, 37 Cal.4th at p. 1197; accord, In re Alva (2004) 33 Cal.4th 254, 262; People v. Castellanos (1999) 21 Cal.4th 785, 796 (lead opn. of George, C.J.).) As one appellate court has explained: "The registration requirement is not an action, a criminal count, or a factual allegation. Nor is registration under section 290 considered to be punishment. [Citation.] Rather, it is a consequence of conviction of certain enumerated crimes." (People v. Tuck (2012) 204 Cal.App.4th 724, 730-731.)

At least two Courts of Appeal have rejected the argument Apprendi and its progeny apply to the discretionary registration scheme, or at least the portions thereof that do not implicate the residency restriction. (People v. Garcia (2008) 161 Cal.App.4th 475, 485-486, disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th 330, 338-339, fn. 4; People v. Presley (2007) 156 Cal.App.4th 1027, 1031-1033, 1035.) The California Supreme Court has held the residency restriction contained in section 3003.5, subdivision (b), is properly applied to sex offenders who are released on parole after its effective date, even if they committed their offenses before it went into effect (In re E.J. (2010) 47 Cal.4th 1258, 1275-1276): "Although [such persons] fall under the new restrictions by virtue of their status as registered sex offenders who have been released on parole, they are not being 'additionally punished' for commission of the original sex offenses that gave rise to that status. Rather, [they] are being subjected to new restrictions on where they may reside while on their current parole — restrictionsclearly intended to operate and protect the public...