1 

Filed 6/27/13 P. v. Wigiert CA3 

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(El Dorado) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MATTHEW ALAN WIGIERT, 

 Defendant and Appellant. 

C071286 

(Super. Ct. No. P08CRF0255) 

This case involves the interplay between the Sex Offender Registration Act 

(SORA) and the Criminal Justice Realignment 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 which no one--not the 

People, not defense counsel, and not the probation 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 responsibility for housing and supervising certain 

felons from the state to the individual counties’” but excludes SORA registrants from its 

ambit. (People v Torres (Feb. 15, 2013, F063840) ___ Cal.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 defendant in the current case, the trial 

court ordered defendant to register as a sex offender for (and only for) five years, as a 

condition of probation. The trial court later revoked probation and sent defendant to 

prison. 

Defendant claims he should not have been 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 SORA. His status as a SORA registrant was 

not changed by the temporally-limited registration order made as a condition of probation 

earlier in this case. Contrary 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 court reached the same conclusions 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 the 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 predecessor statute].) Such a person “shall” register 
3 

“pursuant to” SORA. (§ 290.006.) 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 trial 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 dismissed pursuant to the plea bargain. 

 In a letter dated November 30, 2009, the probation department notified the court 

that defendant had been assessed with “the State Authorized Risk Assessment Tool for 

Sex Offenders (SARATSO)” and scored at “high” risk of reoffense. Normally, that 

would require continuous electronic monitoring while on probation unless the trial court 

found such monitoring was unnecessary in a particular case. (See § 1202.8, subd. (b).) 

________________________________________________________________ 

2 As the People argued in the trial court, this 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 authority to require registration only for the 

period of probation. Although no published decision has yet addressed the point, if the 

court is imposing registration under the discretionary provisions of section 290.006, it 

might be argued the court also has the discretion to determine the length of the 

registration requirement. Nothing in the section 290 statutory scheme, however, indicates 

registration, whether mandatory or discretionary, is for anything less than life without a 

certificate of rehabilitation or pardon.” (Couzens, Prickett & Bigelow, Sentencing 

California Crimes (Barrister Press, Aug. 2011) Sex Crimes, p. 270 (Couzens, Prickett & 

Bigelow); see People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481-1490 [allowing a 

defendant to withdraw his plea because he thought SORA registration was merely for 

length of probation, and he was not advised it was a lifetime duty, pointing out (at p. 

1484) that “Registration is not for a finite period, like a jail incarceration or probation”].) 

We need not resolve that issue in this appeal. However, we note that the trial court’s 

probation condition was not wholly unprecedented. (See People v. King (2007) 151 

Cal.App.4th 1304, 1306 (King).) 

 
4 

The probation department recommended against monitoring by the probation department 

because, “As a result of his status as a registered 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 subject to continuous electronic 

monitoring by the probation officer at this time. Prior to his discharge from parole the 

probation officer will reevaluate the appropriateness of subjecting the defendant to 

continuous electronic monitoring and make the appropriate recommendation to the 

court.” Although this information signaled 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 electronic monitoring by the probation officer until 

he is discharged from parole.” 

 On November 21, 2011, the People filed a petition alleging defendant violated 

probation (VOP), and probation was summarily revoked. A VOP report alleged 

defendant removed his ankle monitor and absconded 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 recommended a two-year sentence 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 admitted violating probation. Imposition of sentence in the drug case 

was suspended and probation was reinstated. 

 On February 16, 2012, a third VOP was filed, alleging defendant did not promptly 

contact the probation officer and did not report as directed for installation of a new 

monitoring device. An attached probation report noted defendant was a “high risk” sex 

offender who “had cut off” his monitoring device and fled the state before, and 
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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 the 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 released 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 sentence. 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 custody 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 was ineligible for sentencing under the 

Realignment Act, and asked the court to correct what they characterized 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 light on 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: “When a court sentences a 

defendant to county jail under the Realignment Act, the court can suspend execution of a 

concluding portion of the defendant'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, 2012, asserting his registration duty arose 

from only the probation condition in the current 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 “is required to register as a sex offender 

pursuant to Chapter 5.5 (commencing with Section 290) [.]” (§ 1170, subd. (h)(3)(C), 

emphasis added.) Defendant’s argument was that he was not required to register 

“pursuant to” SORA, but pursuant 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 “California 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 registration. (§ 290, subds. (b) & (c).) 

 The People’s brief argued the split sentence 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 case P08CRF0255 [i.e., 

as a condition of probation in the current case] is irrelevant and 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), second-degree burglary (P06CFR0598), and misdemeanor 

sexual battery (P06CRF0388), with the fourth case (P06CRF1084) to be dismissed. 

Defendant had initialed a line that read: “I understand that I will be required to register 

as a sex offender pursuant to Penal Code § 290.” 

 When the current case came on for a hearing 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 retained the power to recall the 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 issue regarding defendant’s registration status 

arising from the prior case. Then, for the first time, the People informed the court that 

there was a second prior case, P05CRM1922, in which defendant allegedly was 

convicted of unlawful sexual intercourse and ordered to register as a sex offender. 

 The subsequent defense brief did not address the issue of the registration orders in 

the two prior cases, except to state counsel had not received all relevant transcripts. The 

People’s brief included as exhibits a March 5, 2007 change-of-plea form in the prior 

sexual battery case (P06CRF0388), and a February 24, 2006 minute order in the prior 

unlawful sexual intercourse case (P05CRM1922), reflecting that defendant was ordered 

to register as a sex offender “pursuant to” section 290, in each case. The same copy of 

defendant’s Sex and Arson Registry report that had been submitted before was attached 

to the People’s brief. 

 On April 11, 2012, the trial court took judicial notice of the two prior “cases” and 

stated “I have considered those files.” The 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 guide, 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 & Bigelow).) 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, the trial court did not clearly identify 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 People’s brief. We need not resolve this point. 
8 

 On April 11, 2012, the trial court declined to reinstate probation and imposed a 

state prison sentence consisting of the upper term of three years on count I, with a 

concurrent lower-term sentence on count II. 

 Defendant timely filed this appeal. 

DISCUSSION 

I 

Defendant is Excluded from 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 remained eligible for a 

county jail commitment under the Realignment Act. We disagree. 

 First, we have previously held there 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, emphasis 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, arguing there was an issue “of what 

must be pled and proven[.]” On appeal, defendant fails to present any authority 

preventing a trial court from taking judicial notice of its own files, or documents from its 

files, to determine a defendant’s prior criminal record, and therefore has forfeited any 

such claim. (See In re S.C. (2006) 138 Cal.App.4th 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 previously convicted of sexual battery. (§ 243.4, subd. (e)(1).) 
9 

from those cases, and the authenticated DOJ documents, confirm defendant was a 

lifetime sex registrant, independent 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 that 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 registration is compelled, and that he had, 

in fact, registered. 

 Defendant in part contends those documents do not show defendant 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 imposing registration 

“pursuant to” SORA in the sexual battery case was a lifetime order: “Every person 

described in subdivision (c) [which includes 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 point in his being ordered to register for a 

finite period of time” as a condition 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. 1309.) 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 prior 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 severity of the violation and other relevant 

factors. (Cf. King, supra, 151 Cal.App.4th at pp. 1307-1309, & fn. 6 [where defendant’s 

duty to register arose solely from a condition of probation, and trial court had not made 
10 

the discretionary findings authorizing SORA registration for the offense of unlawful 

sexual intercourse, defendant could not be convicted 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 that he did register under SORA. As stated 

in an analogous case, “official government records clearly describing a prior conviction 

presumptively establish that the conviction in fact occurred, assuming those records meet 

the threshold requirements of admissibility. (See Evid. Code, § 664 [‘It is presumed that 

official duty has been regularly performed’].) Some evidence must rebut this 

presumption before the authenticity, accuracy, or sufficiency 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 defendant’s status as a SORA registrant. 

 Finally, we reject defendant’s claim that only those sex registrants whose SORA 

duties arise from a current case are excluded from the Realignment Act. The portion of 

the statute relevant to his argument is as follows: 

 “Notwithstanding paragraphs (1) and (2), where the defendant (A) has a 

prior or current felony conviction for a serious felony described in subdivision (c) 

of Section 1192.7 or a prior or current conviction for a violent felony described in 

subdivision (c) of Section 667.5, (B) has a prior felony conviction in another 

jurisdiction for an offense that 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 required 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 punishable pursuant to this subdivision 

shall be served in state prison.” (§ 1170, subd. (h)(3).) 
11 

 Defendant’s argument hinges on the use of “prior or current” and “prior” 

convictions in other exclusions from the Realignment Act. He reasons that because 

“prior” does not appear in the part of the statute pertaining to SORA 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 conviction that would be serious 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 California 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 Legislature wanted to limit the exclusion to persons ordered to 

comply with SORA in current cases but not prior registrants--assuming there was some 

rational reason to do so--it would not have phrased the exclusion the way it did, to cover 

any person who “is required to register as a sex offender pursuant to” SORA. (§ 1170, 

subd. (h)(3)(C).) We agree with the view of other learned jurists that, “The plain 

language of the statute suggests that anyone required to register, whether or not for the 

current offense, will be excluded from sentencing under section 1170(h).” (Couzens & 

Bigelow, supra, p. 24; see also Couzens, Prickett & Bigelow, supra, p. 130.)7

II 

The Abstract of Judgment 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.) The 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 stand in relative equipoise].) 
12 

intercourse with a victim more than three years 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-term 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 court is directed to prepare a corrected 

abstract of judgment and forward a certified copy thereof to the Department of 

Corrections and Rehabilitation. 

 DUARTE , J. 

We concur: 

 BLEASE , Acting P. J. 

 MURRAY , J.