P. v. Lancina

Filed 5/23/08 P. v. Lancina CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Adam Sabastian Lancina pleaded guilty to failing to register as a sex offender, and was sentenced to the felony term of three years in state prison. (Pen. Code, former  290, subd. (a)(1)(A).)[1] Failure to register under section 290 is punishable as either a misdemeanor, if the registration requirement is based on a misdemeanor conviction, or a felony, if the registration requirement is based on a felony conviction. ( 290, former subd. (g)(1) & (2).) The complaint alleged a felony violation and listed three prior felony convictions, but inconsistently said defendant was required to register based on an unspecified misdemeanor conviction. Defendant concedes that everyone in the trial court, including himself, thought he was pleading to a felony violation of section 290. Nevertheless, defendant argues that we must construe his plea as a plea to a misdemeanor, and reduce his sentence. We disagree, and affirm the judgment and sentence.

I. facts

On January 3, 2007, a complaint was filed stating one criminal count for failing to register as a sex offender ( 290, former subd. (a)(1)(A)), and alleging three prior prison terms served for felony indecent exposure convictions in 1996, 1997, and 2001. ( 314, subd. (1), 667.5, subd. (b).) Count One alleged: ADAM SEBASTIAN LANCINA did, in the County of Sonoma, State of California, on or about the 14th day of October, 2006 through the 14th day of December, 2006, violate [former] Section 290(a)(1)(a) of the PENAL CODE, a felony, in that he being a person required to register upon coming into, and changing residence and location within a jurisdiction, based on a misdemeanor conviction; did willfully and unlawfully violate the registration provisions of section 290. (Emphasis in original.)

At his arraignment on January 4, 2007, the court advised defendant, there has been a complaint filed against you, a felony, and asked defendant if he was represented by an attorney or able to afford one. Defendant said no, and the court said it would appoint the public defender. Defendant asked: Is that two or one felonies? The court explained there was one count with three priors alleged. The public defender acknowledged receipt of the complaint, stipulated to a proper arraignment, and waived further advisement of rights. Defendant entered a not guilty plea and denied the prior conviction allegations.

On April 5, 2007, defendant waived his right to a preliminary hearing and entered a guilty plea, pursuant to a plea bargain. Defendant initialed and signed a written plea form in which he pleaded guilty to count one, 290(a)(1)(a) PC - Failure to update registration. Defendant entered an open plea in which he agreed to a maximum determinate term of three years in state prison, followed by parole for three to four years. Defendant indicated that he understood that presumptive prison was a consequence of his plea, and initialed the statement I understand that as a convicted felon, I will not be able to own, possess, or have under my custody or control any firearm or ammunition. In exchange for his plea, all prison prior allegations were dismissed. However, defendant agreed that the court could consider the dismissed charges at sentencing, and further agreed that the sentencing judge could determine aggravating circumstances in determining whether to impose the upper term.

On May 24, 2007, a probation officer submitted a Felony Presentence Report that recommended imposition of a three-year prison term. The report summarized a police investigation, which found that defendant is required to register in regard to a felony indecent exposure conviction in 1996. The police learned that defendant moved from his registered address (his mothers residence) to an apartment but failed to register the new address. Defendant admitted to the police that he did not register. He said he did not register because he did not want his landlord to know about his registration requirement, and his name was not on the rental contract. The report provided a record of defendants convictions, which include misdemeanor and felony indecent exposure convictions, and repeated violations of probation and parole.

The sentencing hearing was held on June 6, 2007. Defense counsel argued for a grant of probation, and the prosecutor noted that defendant was statutorily ineligible for probation, absent unusual circumstances, because defendant has two prior felony convictions (or more). ( 1203, subd. (e)(4).) The prosecutor argued against probation and urged adoption of the probation departments recommendation of the aggravated, three-year prison term.

The court found no unusual circumstances supporting a grant of probation, and imposed the upper three-year prison term upon finding that defendants prior convictions were numerous. (Cal. Rules of Court, rule 4.421(b)(2).) The court advised defendant: you have been convicted of a felony, and cautioned him that he was thus prohibited from owning or possessing a firearm or ammunition.

On July 11, 2007, defendant filed and personally signed a Notice of Appeal Felony. He was assigned an appellate attorney, who now argues that defendant, while he admittedly thought he pleaded guilty to a felony, effectively pleaded guilty to a misdemeanor because the charging document contained inconsistent allegations.

Ii. discussion

A violation of section 290 can be either a misdemeanor or a felony depending on whether the registrants underlying sex offense was a felony or a misdemeanor. (People v. Gonzalez (2007) 149 Cal.App.4th 304, 308.) If the underlying offense was a misdemeanor, failure to register is a misdemeanor. ( 290, former subd. (g)(1).) If the underlying offense was a felony, failure to register is a felony. ( 290, former subd. (g)(2).) Section 290, [former] subdivision (g)(2) is a mandatory sentencing provision that requires a felony sentence whenever a person is required to register based on an underlying felony sex offense. (People v. Gonzalez, supra, at p. 308.)

Defendant concedes that, if he had been charged with a felony violation under [former] subdivision (g)(2), he would have been guilty of it. Defendant also concedes that he, his attorney, the prosecutor, and the judge all thought that the plea was to a felony violation of section 290. Nevertheless, defendant argues that he pleaded guilty to the charge, and the charge contained language that effectively made the offense a misdemeanor. Defendant does not want to withdraw his negotiated pleahe wants the plea enforced as a plea to a misdemeanor, and his sentence reduced accordingly. His position is wholly unreasonable.

The complaint contained a plain error. But that error did not render the charge a misdemeanor, contrary to defendants position on appeal. It rendered the charge ambiguous as to whether a felony or misdemeanor was alleged. The linguistic ambiguity in the charging document never misled defendant or deprived him of notice that he was, in fact, being prosecuted for a felony. It is clear the defendant knew that he was accused of a felony, and freely pleaded guilty to a felony. Under these circumstances, defendant was properly sentenced as a felon.

The parties agree that the complaint contained a plain error. The complaint alleged that defendant violated Section 290(a)(1)(a) of the PENAL CODE, a felony, in that he being a person required to register upon coming into, and changing residence and location within a jurisdiction, based on a misdemeanor conviction; did willfully and unlawfully violate the registration provisions of [former] section 290. (Emphasis in original.) The allegations are inconsistent. The complaint alleges a felony, but says the registration requirement was based on a misdemeanor conviction. To be consistent, the complaint should have said the registration requirement was based on a felony, not a misdemeanor.

Due process requires that one accused of a crime be informed of the nature and cause of the accusation. (People v. Ramirez (2003) 109 Cal.App.4th 992, 999 (Ramirez).) This requirement is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial. (Ibid.) Californias liberal pleading rules provide that a felony complaint is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. (Pen. Code,  952.) There is no requirement that the statute which the accused is charged with violating be designated by number, and even a reference to the wrong statute has been viewed of no consequence . . . . [Citation.] A mistake in designating the statute on which a charge is based or in naming an offense is  immaterial unless the defendant is misled thereby . . . .   [Citation.] Consistent with this authority, we may not conclude that a complaint is insufficient, or set aside a guilty plea or sentence unless we first determine that a defect or imperfection in matter of form has prejudice[d] a substantial right of the defendant upon the merits. (Pen. Code,  960.) (Ramirez, supra, at p. 999.)

The complaint here alleged a felony failure to register, and further alleged three felony convictions for sex offenses. Despite the errant reference to an unspecified underlying misdemeanor conviction (as a basis for the duty to register), the complaint provided sufficient notice that defendant was accused of a felony. Defendant was never in any doubt on the matter. At his arraignment the day after the complaint was filed, the court told defendant there has been a complaint filed against you, a felony. Defendant asked the court [i]s that two or one felonies; he did not have any question about whether a felony or misdemeanor was alleged.

All the proceedings in the trial court show defendant knew he was accused of a felony, and intended to plead guilty to a felony. On defendants signed plea form, he accepted a maximum three-year prison term followed by parole (a felony sentence); said he understood that presumptive prison was a consequence of his plea; and initialed the statement I understand that as a convicted felon, I will not be able to own, possess, or have under my custody or control any firearm or ammunition. The sentencing report was entitled Felony Presentence Report. It recommended imposition of a three-year prison term, and stated that defendant is required to register in regard to a felony indecent exposure conviction in 1996. The sentencing court told defendant he was convicted of a felony, and defendant filed a notice of appeal on a form reserved for felony convictions. As defendant concedes on appeal, everyone in the trial court, including himself, thought that the plea was to a felony violation of section 290.

Defendant was not misled by the ambiguous complaint, and his rights were not affected by the complaints imperfection of form. He therefore has no basis for challenging his sentence. ( 960.) Moreover, the uncertainty of the complaint could have been challenged by demurrer, and defendants failure to raise the issue below forfeits his appellate claim. ( 1004, 1012.) The failure to demur or otherwise object to uncertain allegations in a complaint forfeits the issue on appeal. (Ramirez, supra, 109 Cal.App.4th at p. 997.) Defendant acknowledges the rule of forfeiture, but argues it is irrelevant here because he is not complaining of that uncertainty. Instead, he is happy to deem the charging document certaincertain enough, so far as he is concerned, that he was charged with an offense which is a misdemeanor. In other words, defendant wants to exploit the uncertainty and obtain a misdemeanor sentence after negotiating a plea bargain in which he agreed to a felony sentence for which prior prison term convictions were dismissed. This he may not do. A defendant may not speculate on the result of a sentencing hearing and then, in the face of an unfavorable result, seize upon theoretical uncertainty in the accusatory pleading to lessen his sentence on appeal. (Id. at p. 998.)  This is bounty in excess of that to which he is entitled. [Citation.] Both the People and a defendant must honor the terms of a negotiated disposition. (Ibid.)

Iii. disposition

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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[1] All further section references are to the Penal Code. References to section 290 are to the statute effective September 20, 2006 to October 12, 2007, which was operative at the relevant time period in this case. Recently, section 290 (with its many subdivisions) was repealed and reenacted in separate provisions, as sections 290 to 290.23.