Filed 7/30/13 P. v. Bennett CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. CHAD CECIL BENNETT, Defendant and Appellant. F064362 (Super. Ct. No. F11905725)



### OPINION

APPEAL from a judgment of the Superi or 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, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-2. Defendant Chad Cecil Bennett stands convicted, following his guilty plea, of unlawful sexual intercourse by a person 21 ye ars 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 rema nd the matter for further proceedings.
FACTS AND PROCED URAL HISTORY 2 On September 30, 2011, defendant (then 28 years old) met the victim for the first time at a wedding reception. He asked her ag e and expressed surprise upon learning she was only 15. During the reception, when th e 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. Th e 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 sexu al 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 commissi on of a lewd or lascivious act on a child who was 14 or 15 years old by a person at l east 10 years older (§ 288, su bd. (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 age

1 All statutory references are to the Penal Code.
2 Since defendant pled guilty before the preliminary h earing, the facts are taken from the probation officer’s report.3. of 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 agreemen t pursuant to which he pled guilty to count 3 in re turn for dismissal of the remain ing counts. In pertinent part,
he was advised he could receive a maximum se ntence 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 whet her to order lifelong registration pursuant to section 290, which also would be determin ed at the time of sentencing, following a
section 288.1 evaluation. On February 8, 2012, de fendant was sentenced to pr ison for three years. Following review of the section 288.1 evaluati on report and argument on the subject, the court found the offense was committed for pur poses of sexual gratif ication, 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 secti on 1170, subdivision (h).
DISCUSSION
A Defendant contends the requi rement 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 defec tive and must be “struck down completely.” 3

3 The Attorney General says defendant fo rfeited his claims by failing to raise them in the trial court. (See People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.) In People v. French (2008) 43 Cal.4th 36, 46, howeve r, our state high court suggested a defendant’s failure to object does not preclude the assertion on appeal that he or she was denied the constitutional right to a jury trial. Whether Apprendi applies to discretionary sex offender registration is an unsettled que stion, with the issue pending before the4. Section 290, subdivision (b) mandates lif etime registration for anyone convicted
of an offense listed in subdiv ision (c) of the statute. Se ction 261.5 is not listed in subdivision (c) of section 290; hence, a pe rson 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: “A ny person ordered by any court to register pursuant to [section 290 et seq.] for any offense not incl uded specifically in subdivision (c) of Section 290, shall so register, if the court fi nds at the time of conviction or sentencing that the person committed the offense as a resu lt 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 previo usly were contained in subdivision (a)(2)(E) of section 290) “ leaves the trial judge with the optio n 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 c ourt must engage in a two-step process: (1) it must find whether the offense was co mmitted 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 re gistration as a sex offender. By requiring a separate statement of reasons for requiring re gistration even if the trial court finds the
offense was committed as a result of se xual compulsion or for purposes of sexual

California Supreme Court ( People v. Mosley (2010) 188 Cal.App.4th 1090, review granted Jan. 26, 2011, S187965), and, while it would have been better for defendant to object at sentencing on Sixth Amendment gr ounds rather than merely claiming the registration statute was overbroad, we decline to find forfeiture (see People v. French, supra, 43 Cal.4th at p. 48 & fn. 6).5. gratification, the statute gives the trial court disc retion to weigh the reasons for and against registration in each particular case .” ( Ibid. , italics added.) In defendant’s case, the trial court foun d the offense was commi tted for purposes of sexual gratification. The United States Su preme Court has held, however, that “[o]ther than the fact of a prior conviction, any fact that increases the pe nalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, an d 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 discreti onary registration constitutes punishment for two reasons. First, section 3003.5, subdivision (b) makes it “unlawful for any person for whom registrati on is required pursuant to Sec tion 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) excl udes anyone required to register as a sex offender from being sentenced under the provisions of subdiv ision (h) of section 1170. 5 Had a sex offender registration requirement not been imposed on defendant, he would have been permitted to serve hi s time in county jail, eligible for a hybrid sentence, and

4 We sometimes refer to this provision, which we assume applies equally to mandatory registration unde r section 290 and discreti onary registration under section 290.006, as the residency restriction. ( In re Pham (2011) 195 Cal.App.4th 681, 684.)
5 We sometimes refer to this sent encing scheme as realignment. ( People v. Ellis (2012) 207 Cal.App.4th 1546, 1549, 1553.)6. not 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 conclusi on with respect to California’s statutory scheme, despite recognizing registration “impos es 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, 7 96 (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 allega tion. Nor is registra tion under section 290 considered to be punishment. [Citation.] Rather, it is a conseque nce 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 sc heme, 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 10 27, 1031-1033, 1035.) The California Supreme Court has held th e 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 restricti ons by virtue of their status as registered sex offenders who have been released on parole, th ey 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 — restrictions7. clearly intended to operate and protect the public in the pr esent, not to serve as additional punishment for past crimes.” ( Id . at p. 1278, italics omitted.) 6 The state high court has not determin ed, however, whether the residency restriction renders the discretionary registration scheme “punishment” for Apprendi purposes. The court has stated, in another co ntext, that “a period of parole following a prison term has generally been acknow ledged as a form of punishment” ( People v.
Nuckles (2013) 56 Cal.4th 601, 609 ), but has not ruled whether the existence of a parole period renders a state prison sentence more punitive than sentenci ng under realignment (see id . at p. 608, fn. 4). We have expresse d doubt whether the other provisions of realignment constitute less onerous puni shment than a state prison term. ( People v. Cruz (2012) 207 Cal.App.4th 664, 672-673, fn. 8.) We are bound by the recent pronouncem ents by the California Supreme Court that sex offender registration is not punishment. ( Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455. ) Accordingly, we conclude defendant’s Sixth Amendment right to a jury trial was not vi olated by the trial court’s imposition of a registration requirement purs uant to section 290.006. 7
Even if we were to conclude the discre tionary registration requirement contains a punitive element that brings it within the purview of Apprendi and its progeny, we would reject, on the record before us, defendant’s claim the discretionary registration scheme must be struck down. (See In re Pham, supra, 195 Cal.App.4th at pp. 685-690.) Nor would the result change in defenda nt’s case. “Failure to subm it a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” ( Washington v.

6 The high court did not decide whether the residency restriction only applies so long as a sex offender is on parole.
7 Should a higher court hold otherwise, defendant will not be left without a remedy. ( People v. Picklesimer, supra, 48 Cal.4th at pp. 339-340; In re David (2012) 202 Cal.App.4th 675, 680; see People v. French, supra, 43 Cal.4th at pp. 48-49.)8. Recuenco (2006) 548 U.S. 212, 222.) Rather, such error is revi ewed under the standard
set forth in Chapman v. California (1967) 386 U.S. 18, 24. ( People v. Sandoval (2007) 41 Cal.4th 825, 838.) This means “we must ask whether we can conclude, ‘beyond a reasonable doubt, that the jury, applyi ng the beyond-a-reasonable-doubt standard, unquestionably would have f ound true [the] aggravating circumstance had it been submitted to the jury.’ [Citation.]” ( People v. Wilson (2008) 44 Cal.4th 758, 812.) “The failure to submit a sentencing factor to a ju ry may be found harmle ss if the evidence supporting that factor is overwhelming and un contested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” ( People v. French, supra, 43 Cal.4th at p. 53, quoting Neder v. United States (1999) 527 U.S. 1, 19.) In defendant’s case, the ev idence he committed the offense for purposes of sexual gratification was “overwhelmi ng and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” ( People v. French, supra, 43 Cal.4th at p. 53.) We recognize defendant pled gui lty before a preliminary hearing and so the evidence was not developed, bu t defendant admitted having in tercourse with the victim. The disputed issues were whether the act was consensual and if he knew she was underage. We have no doubt that if a jury convicted defendant, it would find, beyond a reasonable doubt, that the o ffense was committed for purposes of sexual gratification. (See People v. Baughman (2008) 166 Cal.App.4th 1316, 1323.) Sexual gratification having been esta blished, section 290.006 still requires a
determination whether sex offender registration should be ordered. ( Hofsheier , supra , 37 Cal.4th at p. 1197.) In our view, th is determination is not subject to Apprendi ’s requirements. “[T]he scope of the constituti onal jury right must be informed by the historical role of the jury at common law. [Citation.]” ( Oregon v. Ice (2009) 555 U.S. 160, 170.) Defendant fails to persuade us the assignment to a sentencing judge of a determination whether, in a given case, a pers on should be ordered to register as a sex offender, “implicates Apprendi ’s core concern: a legislat ive attempt to ‘remove from the9. [province of the] jury’ the de termination of facts that warr ant punishment for a specific statutory offense. [Citation.]” ( Ibid .) “[A]s Apprendi ’s core concern is inapplicable to the issue at hand, so too is the Sixth Ame ndment’s restriction on judge-found facts.” ( Ibid .)
B
The trial court’s comments at sentenci ng indicate a belief that, once a finding of sexual gratification is made, imposition of a sex offender registration requirement is mandatory. 8 Generally, “where the record affirm atively discloses that the trial court misunderstood the scope of its discretion, re mand to the trial court is required to permit that court to impose sentence with fu ll awareness of its discretion ....” ( People v.
Fuhrman (1997) 16 Cal.4th 930, 94 4, italics omitted; accord, People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1245-1246; People v. Jeffries (2000) 83 Cal.App.4th 15, 26.) Similarly, “when the record shows that the tr ial court proceeded with sentencing on the erroneous assumption it lacked discretion, rema nd is necessary so that the trial court may have the opportunity to exercise its sentenci ng discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentenc ing decisions made in the exercise of the “informed discretion” of the sentencing co urt,’ and a court that is unaware of its discretionary authority canno t exercise its informed di scretion. [Citation.]” ( People v.
Brown (2007) 147 Cal.Ap p.4th 1213, 1228.)

8 The court stated: “As far as the 290 regi stration is concerned, [defense counsel], I also disagree with you on that element in th is case. I understand the family of Mr. Bennett does not believe he deserves this par ticular type of outcome in this case. They have the right to have their opinion. This Court -- requirements of the Court is, though, to assess the facts before the court. A nd in 290.006 still it creates the following statement: When an offense is committed as a result of se xual compulsion, which I don’t find in this case; or for purposes of sexual gra tification, which I do fi nd in this case, that the court is to order Penal Code 290. It says shall. Shall is not at that point discretionary. If I found one of those two facts, which I have a requirement to do to assess the facts before me, I must make those findings .” (Italics added.)10. Given the trial court’s comments, we aske d the parties to file supplemental briefs concerning whether remand is required here. They agree that it is, and we concur. The record clearly shows the trial court believe d it was required to order registration if it
found defendant’s offense wa s committed for purposes of sexual gratification. The
record contains no indication whether the court would have imposed a registration requirement had it understood its discretion not to do so. 9 Upon remand, the trial court must exer cise its discretion whether to require registration, after considering all relevant in formation available to it at the time it makes its decision. ( People v. Garcia, supra, 161 Cal.App.4th at p. 483.) “[O]ne consideration
before the court must be the likelihoo d that the defendant will reoffend.” ( Id . at p. 485; accord, People v. Thompson (2009) 177 Cal.App.4th 1424, 1431; Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78.)
C If, upon remand, the trial court exercise s its discretion to again impose a sex offender registration requirement, it shall re instate defendant’s sentence as originally imposed, with any update in, or recalculation of, defendant’s custody credits as may be appropriate. (See People v. Buckhalter (2001) 26 Cal.4th 20, 23-24, 37, 41.) 10 The

9 Dr. Terrell, the psychiatrist who co nducted the section 288.1 evaluation of defendant, recommended imposition of a regi stration requirement. However, he also recommended granting probation with a year in jail. The trial court discussed Dr. Terrell’s evaluation in terms of the sexual gratification issue, and not in terms of whether to require registration.
10 Defendant committed his o ffense on September 30, 2011 ; was convicted pursuant to his guilty plea on December 7, 2011; and wa s sentenced on February 8, 2012. He was awarded presentence custody credits in the am ount of 131 days of actual time plus 64 days of conduct credits, for a total of 195 days. On appeal, he claims entitlement, under the equal protection clause of the federal C onstitution, to additional custody credits under the amendment to section 4019 that became operative on October 1, 2011. Relying primarily on People v. Brown (2012) 54 Cal.4th 314, 328-330, we rejected an equal protection challenge to th e October 1, 2011, amendment to section 401911. sentencing minute order and abstr act of judgment shall then reflect the registration order was made pursuant to section 290.006, not (a s presently shown) section 290.1, which was repealed by Statutes 2005, chapter 704, section 2. If the trial court decides not to impose a re gistration requirement, it shall sentence defendant pursuant to the provisions of sec tion 1170, subdivision (h). (See § 261.5, subd. (d).)
DISPOSITION The judgment of conviction is affirmed. Sentence is vacated and the matter is remanded to the trial court for further procee dings in accordance with this opinion.

_____________________ DETJEN, J. WE CONCUR:

_____________________ GOMES, Acting P.J.

_____________________ POOCHIGIAN, J.

in People v. Ellis, supra, 207 Cal.App.4th at pages 1552-1553. Since defendant committed his offense prio r to October 1, 2011, Ellis controls; moreover, were we to undertake an equal protection analysis, we would still conclude de fendant would not be entitled to custody credits calculated unde r the post-October 1, 2011, version of section 4019. (See, e.g., People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53-56; People v. Verba (2012) 210 Cal.App.4th 991, 995-997 .) If the sex offender registration requirement is not reimposed upon remand , however, defendant may be entitled to additional credit under the vers ion of sections 2933 and 40 19 that became effective on September 28, 2010. (See People v. Hul (2013) 213 Cal.App.4t h 182, 185-187.)