P. v. Echols
Filed 10/9/08 P. v. Echols 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Trinity)
----
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KENNETH ECHOLS, Defendant and Appellant. | C057859 (Super. Ct. No. 07F122) |
Defendant William Kenneth Echols received felony probation pursuant to a plea bargain, but the offense he pled to was not a felony. On appeal, the parties agree that the matter must be remanded to the trial court with directions to reduce defendants conviction to a misdemeanor. We shall do so.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2007, the People filed a complaint against defendant in case No. 07F122, alleging:
COUNT ONE
That said defendant did, in the Trinity County Judicial District, County of Trinity, State of California, on or about the 21st day of September, 2007, commit a felony, to wit: a violation of Section 290(a)(1)[(C)](i)/(g)(2) of the CALIFORNIA PENAL CODE, in that said defendant being a person without a residence address required to register and reregister as a transient within five days of the occurrence of certain conditions and no less than within every thirty days based on a felony conviction and a juvenile adjudication, did violate the provisions of Penal Code Sections 290(a)(1)(C)(i-viii) by unlawfully failing to register and reregister.
IT IS FURTHER ALLEGED that the defendant has one prior violation of Penal Code Section 290(a)(1)(C).[1]
According to the probation report, the facts underlying the complaint, which defendant admitted when he entered his plea, are as follows: William Echols is a registered sex offender. His address of record is listed as Transient. Pursuant to [section] 290(a)(1)[(C)] of the Penal Code, transient registered sex offenders are obligated to reregister every 30 days. Echols last registration was on August 7, 2007, therefore he should have reregistered by September 8, 2007. On September 12, 2007, Echols made an appointment to register but Officer Mercier was unable to meet with him due to illness. He was told to re-contact as soon as possible to reschedule. As of September 21, 2007, Echols had failed to re-contact the Sheriffs Department.[2]
The probation report also shows that on June 13, 2007, in case No. 07M248, after defendant entered a plea of guilty or no contest to failure to register and admitted a violation of probation, he received misdemeanor probation. The report cites section 290, former subdivision (a)(1)(A), which does not concern transients. But since the complaint in case No. 07F122 alleges a prior violation of section 290(a)(1)(C) (transient registration) and the probation report cites no other section 290 offenses, the People surmise that the June 13, 2007 offense was the prior misdescribed in the probation report.
On November 7, 2007, defendant entered into the following written plea agreement as to case Nos. 07F122 and 07M248: Count One, PC 290(a)(1)(C)(i)[/](g)(2) felony[.] Dismiss the prior, local time guarantee, [a]dmit VOP in 07M248. But at the plea hearing, after the trial court read out these terms, the prosecutor interjected: Your Honor, he has to admit the prior to make this a felony. So its not a dismissal of the prior per se. Thats what makes this a felony, his prior misdemeanor 290. Defense counsel added: Because the underlying was a misdemeanor. The trial court, apparently accepting counsels correction, proceeded to take defendants guilty plea to the present offense and although the court took defendants waiver of his right to a hearing on the prior violation for 290(a)(1)(c), it appears the court did not take defendants admission to the prior conviction. We note the court did, however, take defendants admission to a violation of probation arising from the conviction.
The trial court thereafter imposed three years felony probation, including 180 days in county jail.
DISCUSSION
As the complaint shows, the prosecutor believed that a second violation of section 290(a)(1)(C)(i) (transient registration) is automatically a felony. As the plea hearing shows, defense counsel and the trial court shared this belief. They were all mistaken. Unlike other provisions of section 290, it takes at least two prior violations of section (a)(1)(C)(i) (transient registration) to make a new violation a felony. Because two such prior violations were not admitted or otherwise proved, defendants felony conviction must be reversed.
The complaint cited section 290, former subdivision (g)(2) (hereafter subdivision (g)(2)) as the provision making defendants offense a felony. This provision read in part: Except as provided in paragraphs (5), (7), and (9) [of subdivision (g)], any person who is required to register under this section based on a felony conviction or juvenile adjudication . . . for the offense of failing to register under this section and who subsequently and willfully violates any requirement of this section is guilty of a felony[.] Paragraphs (5), (7), and (9) do not mention section (a)(1)(C)(i). Thus, on a first reading of subdivision (g), it would be easy to conclude, as everyone did below, that subdivision (g)(2) controls here. But it does not.
The applicable provision is former subdivision (g)(6), which read in part: Except as otherwise provided in paragraph (5) [concerning sexually violent predators], any person who is required to register or reregister pursuant to clause (i) of subparagraph (C) of paragraph (1) of subdivision (a) and willfully fails to comply with the requirement that he or she reregister no less than every 30 days is guilty of a misdemeanor . . . . A person who willfully fails to comply with the requirement that he or she reregister no less than every 30 days shall not be charged with this violation more often than once for a failure to register in any period of 90 days. Any person who willfully commits a third or subsequent violation of the requirements of subparagraph (C) of paragraph (1) of subdivision (a) that he or she reregister no less than every 30 days shall be punished in accordance with either paragraph (1) [concerning misdemeanors] or [paragraph] (2) [concerning felonies] of this subdivision. (Italics added.)
Thus, under subdivision (g)(6), a single prior violation of section (a)(1)(C)(i) is not enough to make a new violation a felony. Yet that is all that was ever charged or admitted by defendant here.[3] Because the offense defendant pled to did not constitute a felony, we must reverse and remand the matter to the trial court.
DISPOSITION
The order imposing felony probation is vacated. The matter is remanded to the trial court with directions to reduce defendants conviction to a misdemeanor and to resentence him accordingly.
CANTIL-SAKAUYE , J.
We concur:
MORRISON , Acting P. J.
ROBIE , J.
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[1]All further undesignated statutory references are to the Penal Code.
After the charges were filed, the Legislature renumbered and otherwise amended section 290 (nonsubstantively as to the provisions we discuss). (Stats. 2007, ch. 579, 8-31, eff. Oct. 13, 2007.) Section 290, former subdivision (a)(1)(C), is now section 290.011; section 290, former subdivision (g), is now section 290.018. In this opinion, we shall use the former section numbers.
[2]Thus, despite the complaints recital in the language of the statute that defendant failed to register and reregister, the complaint actually alleged only a single failure to reregister.
[3]The probation report repeatedly states that this is defendants third conviction for failure to register. But even assuming that the report meant to cite section (a)(1)(C) rather than section (a)(1)(A) as to case No. 07M248, this makes only a single prior conviction under section (a)(1)(C). The other cited failure to register as a sex offender is an offense under an unspecified Nebraska statute.
