People v. Dryg, H036092

CourtCalifornia Court of Appeals
Writing for the CourtELIA
PartiesTHE PEOPLE, Plaintiff and Respondent, v. EDWARD JAMES DRYG, Defendant and Appellant.
Docket NumberH036092
Decision Date19 March 2012

THE PEOPLE, Plaintiff and Respondent,
v.
EDWARD JAMES DRYG, Defendant and Appellant.

H036092

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Filed: March 19, 2012


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC330917)

Edward James Dryg appeals from a postjudgment order compelling him to register as a sex offender as a matter of discretion pursuant to Penal Code section 290.006.1 Appellant had sought relief from mandatory sex offender registration pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier). Appellant Dryg, who is representing himself, raises a myriad of contentions. Some of his claims are not cognizable in this appeal. The remainder we reject on their merits.2

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I

Background

On July 20, 2004, appellant entered a negotiated no contest plea to three felony sexual offenses committed on or about August 13, 1998: unlawful sexual intercourse with minor who was more than three years younger than appellant (§ 261.5, subd. (c)) (count one), sexual penetration of a person under 18 years of age (§ 289, subd. (h)) (count two), and oral copulation with a person under 18 years of age (§ 288a, subd. (b)(1)) (count three). Before accepting the plea, the court advised appellant that he would be required to register as a sex offender.3 The plea agreement included a grant of probation conditioned upon one year in county jail.

On September 30, 2004, the court suspended imposition of sentence and placed appellant on formal probation for five years and, as a condition of probation, ordered him to serve one year in county jail.

In 2006, the California Supreme Court held in Hofsheier that former section 290's mandatory lifetime registration requirement violated equal protection as applied to the 22-year-old defendant convicted of violating section 288a, subdivision (b)(1). (Hofsheier, supra, 37 Cal.4th at pp. 1192-1193, 1207.) The court found no rational basis for distinguishing between persons, like the defendant, who were convicted of voluntary oral copulation with 16 or 17-year-old victims (§ 288a, subd. (b)(1)) and subject to mandatory registration and persons who were convicted of voluntary sexual intercourse with minors of the same age (§ 261.5) and were not subject to mandatory registration under the law. (Id. at pp. 1201-1207.) Although it found that the mandatory registration

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requirement could not be constitutionally applied to the defendant, the Supreme Court directed the appellate court "to remand the case to the trial court with directions to remove the requirement that defendant register as a sex offender pursuant to subdivision (a)(1)(A) of [former] section 290, to determine whether defendant is subject to discretionary registration pursuant to subdivision (a)(2)(E) of [former] section 290, and, if so, to exercise its discretion whether to require defendant to register under that provision." (Id. at p. 1209.)

In 2007, the Legislature repealed former section 290 and enacted the Sex Offender Registration Act (SORA) (§ 290 et seq.), a restructured and renumbered statutory scheme. (Stats. 2007, ch. 579, §§ 7-31, eff. Oct. 13, 2007, pp. 3738-3747.) The SORA imposes mandatory registration upon, among others, any person convicted of violating section 288a and 289, regardless of when the crime was committed, when the person was convicted, or when the duty to register arose.4 (§§ 290, subd. (c), 290.023.) Section 290.006, like former section 290, subdivision (a)(2)(E), provides: "Any person ordered by any court to register pursuant to the Act 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."

Probation was revoked and, on March 3, 2008, appellant was sentenced to a total prison term of two years on the three sex offenses to which he had pleaded no contest. At that point in time, appellant had not sought Hofsheier relief from mandatory registration as a sex offender.

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Following his release on parole, appellant Dryg requested relief from the mandatory lifetime sex offender registration requirement pursuant to Hofsheier by petition (denominated as a petition for habeas corpus) filed September 21, 2009 in Santa Clara County superior court. Attached to the petition was a letter from the California Attorney General, dated December 15, 2008, advising appellant that Hofsheier could have an impact on him and it was his responsibility to seek possible judicial relief pursuant to that decision.

By petition for habeas corpus filed September 29, 2009 in Santa Clara County superior court, appellant Dryg sought to withdraw his negotiated no contest pleas to the sexual crimes and proceed to trial on the charges on the grounds that (1) the trial court failed to advise him of the lifetime sex offender registration at the time of change of plea, (2) he received ineffective assistance of counsel in connection with entering his no contest pleas, and (3) post-plea modifications of probation violated the negotiated plea agreement.

On October 9, 2009, the court issued an order requesting an informal response from the People as to both petitions.

By order filed November 16, 2009, the superior court summarily denied the September 29, 2009 habeas petition on the ground Dryg failed to show a prima facie case for relief. It also issued an order to show cause with respect to the September 21, 2009 petition after the People conceded in its informal response that Hofsheier's holding directly applied to appellant's conviction of violating section 288a, subdivision (b)(1), and its reasoning generally applied.

In March 2010, the California Supreme Court issued its opinion in People v. Picklesimer (2010) 48 Cal.4th 330 (Picklesimer). The court held that a petition for writ of mandate is the proper procedural method for a person, who is no longer in actual or constructive custody, to assert a Hofsheier claim for relief from mandatory lifetime sex

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offender registration based on equal protection. (Id. at pp. 335, 340.) It clarified that "[a] freestanding postjudgment motion for Hofsheier relief, such as the one Picklesimer filed, is not cognizable." (Id. at p. 335.) The court stated: "For a defendant still in actual or constructive custody, a petition for writ of habeas corpus in the trial court is the preferred method by which to challenge circumstances or actions declared unconstitutional after the defendant's conviction became final. [Citations.] But once a defendant has been released and is no longer subject to parole or probation, he or she is no longer in constructive custody and this avenue is foreclosed. [Citation.] . . . Thus, a party no longer in constructive custody may not challenge his or her obligation to register as a sex offender by way of a petition for writ of habeas corpus. [Citation.]" (Id. at p. 339.)

The court explained: "Placement in, or removal of, a person from the state sex offender registry is a ministerial act, contingent only on whether the person has suffered a conviction that lawfully mandates registration (§ 290, subd. (c)) or has been the subject of a court's discretionary order to require registration (§ 290.006)." (Id. at p. 340.) "[T]he Department of Justice, as the entity responsible for maintenance of the state sex offender registry, would be the nominal respondent . . . ." (Id. at p. 340, fn. 5.) "If a party seeking Hofsheier relief can establish he or she no longer should be required to register, the trial court may issue a writ directing the Department of Justice to remove the petitioner from the state sex offender registry." (Id. at p. 340.)

The court made clear that "defendants who assert a claim for Hofsheier relief and establish a right to relief from mandatory sex offender registration may still be subject to discretionary registration under section 290.006." (Id. at p. 335.) It declined to treat the postjudgment motion as "a mislabeled petition for writ of mandate" because "the record before [the court] [did] not conclusively establish that Picklesimer [was] exempt from discretionary registration and thus entitled to relief." (Ibid.) The court affirmed the judgment of the Court of Appeal dismissing the appeal "without prejudice to

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Picklesimer's opportunity to file an original petition for writ of mandate in the trial court seeking whatever relief he may be entitled to under People v. Hofsheier, supra, 37 Cal.4th 1185 . . . ." (Id. at p. 346.)

The Supreme Court in Picklesimer, supra, 48 Cal.4th 330, further stated: "We determined in Hofsheier . . . and reiterate today, that in cases where mandatory sex offender registration has been shown to violate equal protection, the procedure that most closely matches the legislative intent is not automatic removal of a sex offender from the state sex offender registry, but an after-the-fact discretionary determination whether removal is appropriate."...

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