People v. Dulan

• Decision Date: 27 February 2007
• Docket Number: No. H028838.,H028838.
• Citation: 147 Cal.App.4th 1428,55 Cal.Rptr.3d 312
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Seanalan Christopher DULAN, Defendant and Appellant.

55 Cal.Rptr.3d 312

147 Cal.App.4th 1428

The PEOPLE, Plaintiff and Respondent, v. Seanalan Christopher DULAN, Defendant and Appellant.

No. H028838.

Court of Appeal, Sixth District.

February 27, 2007.

Jeanine G. Strong under appointment by the Court of Appeal, Carmel, for Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Eric D. Share, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General.

RUSHING, P.J.

Defendant Seanalan Christopher Duran entered a negotiated plea of no contest to charges that, while over the age of 21, he engaged in sexual intercourse and oral copulation with a person under the age of 16. Among other conditions of his sentence, the trial court ordered him to register as a sex offender pursuant to Penal Code section 290 (§ 290). On appeal defendant contends that this was error because the mandatory registration requirement applicable to oral copulators in his situation violates equal protection in view of the absence of such a requirement affecting those who commit unlawful sexual intercourse with minors in otherwise identical circumstances. The Supreme Court recently upheld a similar challenge to the statutes' treatment of adults who engage in oral copulation with persons between 16 and 18 years of age. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206, 39 Cal. Rptr.3d 821, 129 P.3d 29 (Hofsheier).) We see no basis for a different result here. Accordingly we will remand the matter with instructions to strike the registration requirement, subject to the trial court's discretionary power to impose such a requirement if it makes the particularized finding that defendant should be required to register, and otherwise complies with the provisions for such an ruling.

BACKGROUND

Because defendant pleaded no contest at an early stage of the proceedings, the only record we have of the circumstances leading to his conviction is found in the probation report. It states that defendant had sexual contacts with the victim, Jane Doe, over a six-week period in 2004, when she was a 15-year old member of a basketball team of which defendant was the 25-year old coach. The matter was reported to authorities by the victim's brother, who knew defendant and who, after growing suspicious, elicited an admission from his sister that she had a "`sexual relationship' " with defendant.

A complaint was filed charging defendant with (1) unlawful sexual intercourse by a person over 21 with a person under 16 (Pen.Code, § 261.5, subd. (d)); (2) sexual penetration of a, person under 16 by one over 21 (PemCode, § 289, subd. (i)); and (3) oral copulation with a person under 16 by one over 21 (Pen.Code, § 288a, subd. (b)(2)). It was alleged with respect to the second and third counts that conviction would require registration pursuant to section 290.

At an early hearing, defendant entered a negotiated plea of nolo contendere to counts one (unlawful sexual intercourse) and three (unlawful oral copulation). After proceedings described more fully below, defendant acknowledged that conviction would require him to register as a sex offender. The court ultimately sentenced defendant to 12 months in the county jail, and ordered him to register as a sex defender over the express objection of defense counsel. Defendant brought this timely appeal.

DISCUSSION

I. Preservation for Appeal

A. Background

Respondent contends that the nature of the proceedings below precludes defendant from challenging the registration requirement on appeal. Review of this contention requires a capitulation in some detail of the proceedings leading up to the court's imposition of such a requirement.

At the change-of-plea hearing, the court first asked that the plea agreement be placed on the record, whereupon defense counsel said, "Mr. Dulan is going to be entering a plea as to Counts 1 and 3 of the complaint. It will be a no contest plea. Count 2 will be dismissed at sentencing on the motion of the District Attorney. Conditional no state prison plea with the understanding that Mr. Dulan will receive no less than 9 months county jail, and no more than 12 months county jail. [¶] Mr. Dulan will enter a waiver of his appellate rights, and we will be going to the 859 judge, Judge Lisk, for sentencing." The prosecutor then added, "Just to clarify the waiver, he will agree to have the case sent to Judge Lisk for sentencing. The waiver of appellate rights has been negotiated in this case. That is part of the negotiated disposition. But beyond what has been stated on the record, the Court can sentence the defendant. There are no other agreements beyond what was stated on the record."

The subject of registration did not come up until some time later. First the court informed defendant that it was "going to be advising you of certain rights, and I am going to be asking you certain questions in the next few minutes. This is to make sure that you understand exactly what is happening in your case today." The court confirmed that defendant had not consumed any substances that might affect his comprehension of proceedings, and that he had had an opportunity to discuss the matter with counsel. It secured defendant's negative answer to the question, "Besides what has been stated on the record, are there any other promises or conditions made to you in exchange for your plea of no contest?" Colloquy ensued as to whether defendant was to plead guilty or no contest. After this the court apprised defendant that the maximum sentence he faced was three years and eight months in state prison. The court said that under the plea agreement, defendant would receive a sentence of 9 to 12 months in jail, that he would be subject to probation for up to five years, and that the sentencing judge might impose additional conditions of probation. The court told defendant about the parole consequences of any prison term he might receive, as well as the possible immigration consequences of conviction. It informed him that the conviction would disable him from owning or possessing a firearm. The subject of registration then first came up, as follows:

"You will be required to register as a convicted sex offender with the police or Sheriffs Department of any city or county in which you reside. Failure to register as required will result in a new criminal violation. Do you understand that? [¶] THE DEFENDANT: Yes, your Honor. [¶] THE COURT: That is pursuant to Penal Code 290. All right? [¶] THE DEFENDANT: Yes, your Honor, [¶] THE COURT: Registration is a lifetime requirement and includes an annual registration within days [sic ] of your birth date, and within two weeks of a change of address. Do you understand that? [¶] MR. BLANK [defense counsel]: A moment, your Honor? Thank you. [¶] THE DEFENDANT: Yes, your Honor. [¶] THE COURT: Do you understand? [¶] THE DEFENDANT: Yes. [¶] THE COURT: Thank you. Counsel, you wanted to look that up because you thought the registration requirements were different, but you agree with the Court. Correct? [¶] MR. BLANK: Yes. [¶] THE COURT: Thank you. . . ."

The court went on to describe the potential use of any prison commitment as a future sentence enhancement, as well as defendant's duty to provide a DNA sample and to pay certain fines and assessments, including registration fees under section 290 as well as Penal Code section 290.3. Then, after advising defendant of the constitutional rights he was giving up by changing his plea, the court invited the prosecutor to question him. In response to these questions, defendant confirmed that he was "giving up [his] right to appeal this conviction, or attack the conviction by a Writ of Habeas Corpus in State or Federal Court." He also acknowledged that he would "be required to provide blood, saliva, and print samples, pursuant to Penal Code sections 295 to 300.3, because this is a 290 sex registrable offense." Defendant thereupon entered his plea of no contest to the first and third counts. The court found the plea to rest on a "knowing, intelligent, free and voluntary waiver of [his] rights." The; court accepted the plea and scheduled the matter for sentencing before Judge Lisk.

Prior to sentencing, defense counsel filed a memorandum arguing that defendant should not be required to register under section 290, subdivision (a)(2)(A), because that statute's requirement of mandatory registration for oral copulation but not sexual intercourse violates the equal protection clause. He noted that two Court of Appeal decisions, both of which were pending before the Supreme Court, had reached opposite conclusions on this issue. (See People v. Hofsheier (2004) 117 Cal.App.4th 438, 11 Cal.Rptr.3d 762, review granted Jun. 9, 2004, S124636, revd. in part sub nom. Hofsheier, supra, 37 Cal.4th 1185, 39 Cal.Rptr.3d 821, 129 P.3d 29; People v. Alcala (2004) 118 Cal. App.4th 1362, 13 Cal.Rptr.3d 741, review granted Aug. 25, 2004, S125898, cause transferred with directions to vacate May 17, 2006.) He also argued that application of the mandatory requirement to defendant was particularly irrational since defendant was unlikely to recidivate.

The latter contention rested largely on a psychological evaluation attached to the probation report. Its author, a clinical psychologist, opined that defendant presented no sexual or antisocial disorders and had no paraphilic, pedophilic, or predatory characteristics. He considered defendant an empathic, law-abiding citizen whose anomalous conduct in this instance grew out of, and was secondary to, a deep emotional attachment to the victim, which persisted at the time of the evaluation. The evaluator attributed the attachment, and the resulting aiminal conduct, to.defendant's relative social immaturity and to an overidentification with Jane Doe based in part on common traits in their family backgrounds, including...