1 Filed 6/27/13 P. v. Wigiert CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (El Dorado)

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THE PEOPLE, Plaintiff and Respondent,

v. MATTHEW ALAN WIGIERT, Defendant and Appellant. C071286 (Super. Ct. No. P08CRF0255)

This case involves the in terplay between the Sex O ffender Registration Act (SORA) and the Criminal Justice Reali gnment Act of 2011 (Realignment Act). 1 At all relevant times, defendant Matthew Alan Wigiert has been subject to lifetime sexual offender registration arising out of a prior case, a fact whic h no one--not the People, not defense counsel, and not the prob ation department--timely conveyed to the

________________________________________________________________ 1 SORA is found at Penal Code section 290, et seq. All further section references are to the Penal Code. The Realignment Act “‘shifted respon sibility for housing and supervising certain felons from the state to the individual coun ties’” but excludes SORA registrants from its ambit. ( People v Torres (Feb. 15, 2013, F063840) ___ Ca l.App.4th ___, ___ [p. 5]; see People v. Griffis (2013) 212 Cal.App. 4th 956, 961-962 ( Griffis ); § 1170, subd. (h)(3)(C).)2 trial court in the current case. When sentencing defendan t in the current case, the trial court ordered defendant to register as a se x offender for (and only fo r) five years, as a condition of probation. The trial court late r revoked probation an d sent defendant to prison.
Defendant claims he should not have b een sentenced to state prison because he was not excluded from the Realignment Act. We conclude the record shows defendant had a prior lifetime duty to register under SO RA. His status as a SORA registrant was not changed by the temporally-limited regist ration order made as a condition of probation
earlier in this case. Cont rary to defendant’s view, all SORA registrants are excluded from the Realignment Act, not merely new SORA registrants. (See § 1170, subd. (h)(3)(C).) Because the trial c ourt reached the same conclusi ons in sentencing defendant to state prison, we shall affirm.

BACKGROUND In this case, defendant was charged with seven sex offenses. On August 13, 2008, pursuant to a plea bargain, he pled no contest to two counts of unlawful sexual
intercourse with a minor more than three years younger than himself, reflecting two separate victims. (§ 261.5, subds. (a), (c).) The agreed-upon sentence was one year in jail, and registration as a sex offender during the period of probation. Five other counts
were trailed. SORA registration is not mandatory for the crime of unlawful sexual intercourse,
but a trial court has discretion to impose a registration requirement for any offense-- including unlawful sexual intercourse--if th e offense is motivated by “sexual compulsion or for purposes of sexual gratification”--and the trial court states on the record “the reasons for its findings and the reasons for requiring registration.” (§ 290.006; see People v. Picklesimer (2010) 48 Cal.4th 330, 345; People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198 [discussing pr edecessor statute].) Such a person “shall” register3 “pursuant to” SORA. (§ 290.0 06.) The reporter’s transcript of the 2008 change-of-plea hearing is not in the record, so it is unclear why the trial court ordered the temporallylimited sex registration condition of probation in this case. 2 On November 19, 2008, a different tria l court stayed imposition of sentence and placed defendant on five years of probation, with a condition that he register as a sex offender for the period of probation, which the trial court described as “a difference from
the normal law and order. This will be for a five year reporting term only from this date.” The trailing counts were dismisse d pursuant to the plea bargain. In a letter dated November 30, 2009, th e probation department notified the court
that defendant had been assessed with “the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO)” and scored at “hig h” risk of reoffense. Normally, that would require continuous electronic monito ring while on probation unless the trial court
found such monitori ng was unnecessary in a particular case. (See § 1 202.8, subd. (b).)

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2 As the People argued in the trial court, th is may have been an unauthorized limitation. Registration is for life. (Pen. Code, § 290, subd. (b).) Because of the lifetime registration requirement, the court generally has no author ity to require regist ration only for the period of probation. Although no published decision has yet addressed the point, if the court is imposing registration under the disc retionary provisions of section 290.006, it might be argued the court also has the di scretion to determine the length of the registration requirement. Nothing in the sec tion 290 statutory scheme, however, indicates registration, whether mandatory or discretionary, is for anyt hing less than life without a certificate of rehabilitation or pardon.” (Couzens, Prickett & Bigelow, Sentencing California Crimes (Barrister Press, Aug. 2 011) Sex Crimes, p. 270 (Couzens, Prickett & Bigelow); see People v. Zaidi (2007) 147 Cal.App.4th 14 70, 1481-1490 [allowing a defendant to withdraw his plea because he thought SORA regist ration was merely for length of probation, and he wa s not advised it was a lifetim e duty, pointing out (at p. 1484) that “Registration is no t for a finite period, like a ja il incarceration or probation”].) We need not resolve th at issue in this appeal. Howeve r, we note that the trial court’s probation condition was not whol ly unprecedented. (See People v. King (2007) 151 Cal.App.4th 1304, 1306 ( King ).)4 The probation department recomme nded against monitoring by the probation department because, “As a result of his status as a regist ered sex offender the defendant is subject to the continuous electronic monitoring as a condition of parole. Therefore, it is respectfully recommended that the defendant not be subj ect to continuous electronic monitoring by the probation officer at this ti me. Prior to his discharge from parole the probation officer will reevaluate the approp riateness of subjecting the defendant to continuous electronic monitoring and ma ke the appropriate recommendation to the court.” Although this information signale d clearly that the registration probation condition imposed in the current case was partly duplicative of a lifetime registration requirement from a prior case, the only result of this letter was that the trial court ordered
defendant “absolved from continuous electron ic monitoring by the probation officer until he is discharged from parole.” On November 21, 2011, th e People filed a petition a lleging defendant violated probation (VOP), and probation was summa rily revoked. A VOP report alleged
defendant removed his ankle monitor and absc onded to Nevada with his mother’s ATM card. The report stated defendant had recently been discharged from parole “following a lengthy criminal history including multiple convictions for sex offenses , burglary, and narcotics use[,]” (emphasis added) and recomme nded a two-year senten ce on each count, to be served consecutively, for a four-year prison term. Defendant was later charged with two drug offenses, and a second VOP was filed. On February 10, 2012, he pled no contest to one misdemeanor drug charge, the other was dismissed, and he adm itted violating probation. Impositi on of sentence in the drug case was suspended and probation was reinstated. On February 16, 2012, a third VOP was f iled, alleging defendant did not promptly contact the probation officer and did not re port as directed for installation of a new monitoring device. An attached probation re port noted defendant was a “high risk” sex
offender who “had cut off” his monitoring device and fled the state before, and5 recommended the trial court impose and stay a two-year sentence and order him to serve 120 days in jail, with no credit for time served. 3 On March 5, 2012, defendant admitted the latest VOP allegations. The trial court declined to reinstate probation and sentenced defendant to th e upper term of three years on one of the sex counts, with a concurrent midterm on the other, but “split the sentence” so that defendant would serve two years in county jail, and the trial court stayed the remaining year “so the Defendant will be rele ased on mandatory supervision.” The trial court was “somewhat troubl[ed]” by the prior limited sex registration order, stating “it’s not really appropriate on a state prison senten ce. But I’m sure probation will have other terms they’ll be requesting.” 4 On March 7, 2012, the parties were back in court to discuss a claimed error in the computation of defendant’s cust ody credits. At that hearing, the People for the first time advised the court that, because defendant was a registered sex offender (apparently still referencing only the current case), he wa s ineligible for sentencing under the Realignment Act, and asked the court to correct what they ch aracterized as an unauthorized “split” sentence, seeking a state prison sentence instead. The trial court recalled the sentence (see § 1170 , subd. (d)) and sought briefing from the parties. (See fn. 5, post .)

________________________________________________________________ 3 The record sheds no lighton the question of why a two-year stayed state prison sentence was recommended at this point, when a four-year unstayed state prison sentence was recommended before defendant twice more violated probation.

4 The “split-sentence” is a creature of the Realignment Act: “Whe n a court sentences a defendant to county jail under the Realignmen t Act, the court can suspend execution of a concluding portion of the defend ant's sentence, during which time the defendant is given supervised release from custody, akin to probation. (§ 1170, subd. (h)(5) (B).)” ( Griffis , supra , 212 Cal.App.4th at p. 963, fn. 2.)6 Defendant filed his brief on March 15, 20 12, asserting his registration duty arose from only the probation condition in the curren t case. The SORA exception provided by the Realignment Act, requiring defendants to serve sentences in state prison rather than county jail, applies to any defendant who “i s required to register as a sex offender
pursuant to Chapter 5.5 (commencing with Section 290) [.]” (§ 117 0, subd. (h)(3)(C), emphasis added.) Defendant’s argument was that he was not required to register “pursuant to” SORA, but pursu ant to a probation condition. The People then lodged with the trial court a letter from the California Department of Justice (DOJ), authenticating certified copies of defendant’s “Ca lifornia Sex and Arson Registry.” In part, it shows that defendant was previously convicted of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). As a matter of law, such a conviction results in mandatory lifetime SORA registrati on. (§ 290, subds. (b) & (c).) The People’s brief argued the split sent ence reflected an abuse of discretion because the trial court (and, inferentially, everyone else involved) had until that point been “unaware the defendant was already a lifetime sex offender registrant pursuant to his valid plea and waiver agreement in case P06CRF0388 [the prior sexual battery case]. Thus, the validity of the court’s order requiring him to register in ca se P08CRF0255 [i.e., as a condition of probation in the current case] is irrelevant a nd the issue is moot.” Attached to the brief was a copy of the plea form in the prior case, showing defendant resolved four then-pending criminal cases by pleading no contest to receiving stolen property (P07CRF0011), seco nd-degree burglary (P06CF R0598), and misdemeanor sexual battery (P06CRF0388), w ith the fourth case (P06CRF 1084) to be dismissed.
Defendant had initialed a line that read: “I unde rstand that I will be required to register as a sex offender pursuant to Penal Code § 290.”
When the current case came on for a he aring on March 21, 2012, the trial court lamented its “sordid history[,]” but concluded that it had not lost jurisdiction to change
the sentence because it reta ined the power to recall th e sentence within 120 days,7 pursuant to section 1170, subdivision (d). 5 The trial court continued the matter for the parties to brief the newly-discovered issu e regarding defendant’s registration status arising from the prior case. Then, for the firs t time, the People info rmed the court that
there was a second prior case, P05CRM1922, in wh ich defendant allegedly was
convicted of unlawful sexual intercourse and ordered to register as a sex offender. The subsequent defense brie f did not address the issue of the registration orders in the two prior cases, except to st ate counsel had not received a ll relevant transcripts. The People’s brief included as exhibits a Marc h 5, 2007 change-of-plea form in the prior sexual battery case (P06CRF0388), and a Februa ry 24, 2006 minute order in the prior unlawful sexual intercourse case (P05CRM1922 ), reflecting that defendant was ordered to register as a sex offende r “pursuant to” section 290, in each case . The same copy of defendant’s Sex and Arson Registry report th at had been submitted before was attached to the People’s brief. On April 11, 2012, th e trial court took judicial noti ce of the two prior “cases” and
stated “I have considered those files.” Th e trial court tentatively concluded the prior cases mooted the pending sentencing issues. Defense counsel argued in a part that “increased penalties and additional obligations ” had not been pled or proven, a point
reiterated in a later motion. 6 The People argued the original split sentence was
unauthorized because defendant was a SORA registrant.

________________________________________________________________ 5 The trial court relied on a leading bench gui de, which concludes a trial court’s power to recall a state prison commitment (§ 1170, subd . (d)) includes the power to recall a prison sentence ordered to be served locally. (Couzens & Bigelow, Felony Sentencing After Realignment (Feb. 2013) Additional Issues, pp. 26-27 (Couzens & Bi gelow).) Defendant disagrees with this view, but concedes the trial court had the power to “correct” its sentence if it were not legally authorized.

6 As defendant points out, th e trial court did not clearly id entify the documents judicially noticed. The trial court may have meant the entire case files, or merely the documents from those files attached as exhibits to the Pe ople’s brief. We need not resolve this point.8 On April 11, 2012, the trial court declined to re instate probation and imposed a state prison sentence consisti ng of the upper term of th ree years on count I, with a
concurrent lower-term sentence on count II. Defendant timely filed this appeal.
DISCUSSION
I Defendant is Excluded fr om the Realignment Act
Defendant contends no evidence shows he was subject to a lifetime registration requirement resulting from any prior case, and in any event he rema ined eligible for a county jail commitment under the R ealignment Act. We disagree. First, we have previously held ther e is no need to plead and prove a prior conviction in order to disqualify a defendant from the Realignment Act, and in doing so made it clear our holding applied to “a prior conviction or other factor disqualifying a defendant from a jail sentence under the Realignment Act [.]” ( Griffis , supra , 212 Cal.App.4th at pp. 963-964, em phasis added.) We adhere to that view in this case. Therefore, there was no need for the People to formally plead and prove his exclusion from the Realignment Act. The trial court took judicial notice of records in two prior cases, and found defendant was subject to lifetime SORA registration. (See fn. 6, ante .) The documents

Defense counsel did not ask the trial court to clarify what it was considering or to lodge that material in the record . Instead, counsel merely objected to the trial court’s considering anything outside the current case file, argui ng there was an issue “of what must be pled and proven[.]” On appeal, defendant fails to present any authority preventing a trial court from taki ng judicial notice of its own files, or documents from its files, to determine a defenda nt’s prior criminal record, and therefore has forfeited any such claim. (See In re S.C. (2006) 138 Cal.App.4t h 396, 408.) And in any event, such a claim would fail. (See People v. Woodell (1998) 17 Cal.4th 448, 455-456; 1 Witkin, Cal. Evidence (4th ed. 2000) Judicial Notice, § 23, pp. 117-118.) There was simply no factual dispute that defendant was previo usly convicted of sexual batte ry. (§ 243.4, subd. (e)(1).)9 from those cases, and the au thenticated DOJ documents, confirm defendant was a lifetime sex registrant, independ ent of the probation condition imposed in this case. If trial counsel thought those documents were somehow inadequate, the remedy was to challenge them or present other evidence th at belied them. This was not done. The documents presented to the trial court were sufficient to show defendant had been convicted of sexual battery, for which SORA re gistration is compelled, and that he had, in fact, registered. Defendant in part contends those docume nts do not show defe ndant was ordered to register for life . We disagree. Even if SORA registration is not always for life--barring a certificate of rehabilitation or pardon (see fn. 2, ante )--the order impos ing registration “pursuant to” SORA in the se xual battery case was a lifetime order: “Every person described in subdivision (c) [which incl udes convictions for sexual battery], for the rest of his or her life ,” is subject to SORA. (§ 290, subd. (b), emphasis added.) Assuming the limited registration order was authorized (but see fn. 2, ante ), we disagree with defendant that there was “no po int in his being ordered to register for a finite period of time” as a cond ition of probation in the present case. Although that order may have been made without knowledge of defendant’s preexisting SORA registration duties, “A trial court has broad discretion to impose conditions of probation that will
foster rehabilitation of the defendant and protect the public and the victim.” ( King , supra , 151 Cal.App.4th at p. 13 09.) It would not be irrational to impose a SORA registration order as a condition of probation, even for a person, like defendant, who is also required to register because of a prio r conviction, because doing so would allow flexibility in dealing with subsequent SORA violations: They might result in new criminal charges or could be dealt with by means of a VOP alleging noncompliance with the probation condition, depending on the seve rity of the violati on and other relevant factors. (Cf. King , supra , 151 Cal.App.4th at pp. 1307-130 9, & fn. 6 [where defendant’s duty to register arose solely from a condition of probation, and tria l court had not made10 the discretionary findings authorizing SORA registration for the offense of unlawful sexual intercourse, defendant could not be co nvicted of violating SORA, but could be subject to revocation of probation].) But in any event we reject defendant’s apparent view that the earlier probation order in this case has any relevance to his preexisting SORA registration status. Defendant argues the documents in the record merely show defendant would be
ordered to register, not that he actually did register. But the authenticated DOJ
documents show that he did , in fact, register. Further, we presume official duties are
carried out and the relevant officials ensured th at he did register under SORA. As stated in an analogous case, “official government records clear ly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. (S ee Evid. Code, § 664 [‘It is presumed that official duty has been regularly performed ’].) Some evidence must rebut this presumption before the auth enticity, accuracy, or sufficien cy of the prior conviction records can be called into question.” ( People v. Epps (2001) 25 Cal.4th 19, 27.) Nothing in the record calls into question defe ndant’s status as a SORA registrant. Finally, we reject defendant’s claim th at only those sex registrants whose SORA
duties arise from a current case are excluded from the Reali gnment Act. The portion of the statute relevant to his argument is as follows: “Notwithstanding paragraphs (1) a nd (2), where the defendant (A) has a prior or current felony conviction for a se rious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violen t felony described in subdivision (c) of Section 667.5, (B) ha s a prior felony conviction in another jurisdiction for an offense th at has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is re quired to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony p unishable pursuant to this subdivision shall be served in state pris on.” (§ 1170, subd. (h)(3).)11 Defendant’s argument hinges on the use of “prior or current” and “prior”
convictions in other exclusions from the Re alignment Act. He reasons that because “prior” does not appear in the part of the statute pertaining to SO RA registrants, only

current-case SORA registrants are excluded. We disagree. The other provisions exclude persons who have “a prior or current” serious or violent felony or a “prior” foreign convicti on that would be seri ous or violent if
committed in California. The SORA exclusion refers to a person’s status , which might arise from a current or prior conviction in Ca lifornia or elsewhere, provided that such conviction triggers the SORA definitions. (See §§ 290, subds. (b) & (c), 290.005.) All such persons are “required to register as a sex offender pursuant to” SORA. (§ 1170, subd. (h)(3)(C).) Had the Legisl ature wanted to limit the excl usion to persons ordered to comply with SORA in current cases but not prior re gistrants--assuming there was some
rational reason to do so--it woul d not have phrased the exclus ion the way it did, to cover any person who “is require d to register as a sex offender pursuant to” SORA. (§ 1170, subd. (h)(3)(C).) We agree w ith the view of other learned jurists that, “The plain language of the statute sugges ts that anyone required to register, whether or not for the current offense, will be excl uded from sentencing under section 1170(h).” (Couzens & Bigelow, supra , p. 24; see also Couzens, Prickett & Bigelow , supra , p. 130.) 7
II The Abstract of Judgme nt Must be Corrected An abstract of judgment must fully and accurately capture all components of a defendant’s sentence. (See People v. Mitchell (2001) 26 Cal. 4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385-389.) Th e sentencing triad for unlawful sexual

________________________________________________________________ 7 Contrary to defendant’s view, his reading of the statute does not plausibly account for its language and therefore he has not tendered an ambiguity so as to trigger the “rule of lenity.” (See People v. Cornett (2012) 53 Cal.4th 1261, 1271 [rule of lenity not applied unless two interpretations stan d in relative equipoise].)12 intercourse with a victim more than three y ears younger than the defendant is the default triad of 16 months, two years, or three years. (See §§ 18, 261.5, subd. (c).) As the People note, the trial court imposed the lower term of 16 months in state prison for count II, to be served concurrently to the upper-ter m sentence of three years for count I. However, the abstract of judgment incorrectly states the concurrent sentence on count two is one year and six months (that is, 18 months), instead of one year and four months (that is, 16 months). We will direct the trial court to prepare a corrected abstract of judgment.
DISPOSITION The judgment is affirmed. The trial c ourt is directed to prepare a corrected abstract of judgment and forward a certif ied copy thereof to the Department of
Corrections and Rehabilitation.

DUARTE , J.

We concur:

BLEASE , Acting P. J.

MURRAY , J.