Filed 1/21/15 In re Allen CA2/6
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


In re LOREN BRADLEY ALLEN,                                                    2d Civil No. B254793
                                                                            (Super. Ct. No. 1430834)
         on Habeas Corpus.                                                   (Santa Barbara County)




                   The California Department of Corrections and Rehabilitation (CDCR) appeals
a superior court judgment granting Loren Bradley Allen's petition for writ of habeas corpus.
The trial court found Allen was required to register as a sex offender only as a condition of
his probation following his conviction of first degree burglary. (Pen. Code, § 459.)1 It
enjoined CDCR "from making the provisions of Penal Code [sections] 290 and 3003.5
conditions of [Allen's] parole." We conclude the trial court erred by deciding the habeas
petition without conducting an evidentiary hearing and by making findings without an
adequate and complete evidentiary record. We reverse and remand.
                                                           FACTS
                   In November 2007, Allen was charged with first degree burglary (§ 459),
prowling (§ 647, subd. (h)), and peeking (§ 647, subd. (i)). In a plea agreement, Allen
agreed to "register pursuant to Penal Code § 290 and [to] 'standard terms & conditions as
outlined in the plea report.'"

1
    All statutory references are to the Penal Code.
              On November 12, 2008, Allen pled no contest to first degree burglary. The
trial court "suspended pronouncement of judgment" and placed him on three years' "felony
probation."
              Allen violated the terms and conditions of his probation. On November 29,
2011, the trial court imposed a four-year state prison sentence.
              On August 28, 2013, Allen filed a petition for writ of habeas corpus in the
superior court. He sought to enjoin CDCR from imposing sex offender residency
restrictions upon his release from prison. (§§ 290, 3003.5.) He claimed such restrictions
would constitute an invalid "parole condition."
              On September 12, 2013, the trial court issued an order to show cause. The
court ordered CDCR "to show cause why the court should not order that Penal Code §§ 290
[sex offender registration requirement] and 3003.5 [residency restriction for sex offenders]
do not apply to petitioner Loren Bradley Allen and enjoin [CDCR] from making the
provisions of these statutes a condition of petitioner's parole."
              CDCR filed a return and said, "[A]ny order requiring sex offender registration
is necessarily for lifetime registration . . . ." It said, "[T]he petition must be denied because
Allen negotiated by plea for lifetime sex offender registration." (Boldface omitted.)
              The trial court granted Allen's habeas corpus petition. It found Allen was
required to register as a sex offender only as a condition of his probation. It enjoined CDCR
from applying "the provisions of Penal Code [sections] 290 and 3003.5" as "parole"
conditions.
                                         DISCUSSION
                          The Sex Offender Registration Requirement
              CDCR contends the judgment must be reversed because Allen was required to
register as a sex offender. It contends the trial court erred because Allen was subject to "a
lifetime obligation to register" as a sex offender.
              Individuals who commit specified sex offenses are required to register as sex
offenders. (§ 290, subds. (b) & (c).) Allen was convicted of burglary. This is not a sex
offense listed in section 290, subdivision (c).

                                                  2
              Defendants whose offenses are not listed in section 290, subdivision (c) may
be required to register "if the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for purposes of sexual
gratification." (§ 290.006.) This statute also requires that "[t]he court shall state on the
record the reasons for its findings and the reasons for requiring registration." (Ibid.)
              Where the court intends to impose a lifetime sex offender registration
requirement for a defendant who commits burglary, it must make the section 290.006
findings and "state the reasons for" imposing the registration requirement. (People v. King
(2007) 151 Cal.App.4th 1304, 1308; § 290.006.)
              CDCR notes that sex offender registration is a lifetime requirement for
convicted sex offenders. (§ 290, subds. (b) & (c).) But a trial court also may impose a sex
offender registration requirement as a condition of probation. (People v. King, supra, 151
Cal.App.4th at pp. 1308-1309.) In such a case, the registration requirement is limited to the
"period during which [the defendant is] on probation." (Id. at p. 1308.)
              In 2008, Allen entered into a plea agreement where he agreed to "felony
probation for 3 years" and that he would "register pursuant to Penal Code Section 290."
              In deciding the habeas petition, the trial court found "the Penal Code § 290
registration requirement was a condition of probation only, not a required or implicit term of
the sentence." (Italics added.)
              The parties have different positions on this issue. The People contend that
because Allen included the reference to section 290 in his plea agreement, he is subject to its
lifetime registration requirement. Allen claims he was only subject to a registration
requirement as a probation condition. He argues the reference to section 290 was only a
short hand description of the type of registration he was subject to during the period of
probation.
              The trial court's ruling on this issue was premature. It did not have an
adequate and complete evidentiary record to make its findings. The court said the wording
of the plea agreement "is open to two interpretations." A properly noticed evidentiary
hearing was required to decide the nature and duration of the registration requirement.

                                                3
              But the trial court did not hold a hearing. It decided the habeas petition simply
by reviewing the return and documents it selected. Because there was no hearing, there was
no opportunity to call witnesses such as the judge who sentenced Allen to probation in 2008,
the prosecutor and the defense counsel who represented Allen. (In re Luce (1966) 64 Cal.2d
11, 13 [affidavit of retired judge "may be considered in a habeas corpus proceeding for the
purpose of explaining or filling certain gaps in the official record"]; People v. Dubon (2001)
90 Cal.App.4th 944, 955 [testimony of retired judge was properly considered].) Such
testimony would be highly probative evidence about what was intended with respect to the
duration of the registration requirement.
              In making its findings on the habeas petition, the trial court selected
documents that were not included in the return. It did not give prior notice to the parties of
its intent to use this procedure. The parties did not have the opportunity to review those
records prior to the court's decision. Those records are also not part of the record. The
People contend the procedure the court used prevented them from raising and obtaining
rulings on procedural issues. They claim there are unresolved issues such as the absence of
a traverse requiring the exercise of trial court discretion.
              The trial court erred by not conducting a hearing and by making findings
without a complete evidentiary record.
                                            Disposition
              The judgment is reversed and the matter is remanded to the trial court with
instructions to conduct an evidentiary hearing. The specific procedure the trial court selects
to make its findings is a matter within its sound discretion.
              NOT TO BE PUBLISHED.



                                            GILBERT, P. J.
I concur:



              PERREN, J.

                                                4
YEGAN, J. Concurring and Dissenting
                I agree the judgment should be reversed. But, I dissent from that
portion of the judgment ordering an evidentiary hearing. Remand for an evidentiary
hearing would serve no purpose. Allen is no longer in custody and may not
challenge the sex offender registration order by way of a petition for writ of habeas.
(People v. Pickelsimer (2010) 48 Cal.4th 330, 339.) Even if the trial court had
jurisdiction to grant habeas relief, modification of the order would violate the terms
of the negotiated plea and Penal Code sections 290 and 290.006.1
                The 2006 plea agreement states that Allen "must register as a sex
offender" pursuant to section 290.2 Allen was represented by extremely competent
counsel, knew what he was pleading to, and received a highly favorable negotiated
disposition of his case. He was charged with two residential burglaries and plead
no contest to one count after admitting to the police that the crimes (residential
burglary, prowling, and peaking --- all subject to a Harvey waiver) were for sexual
gratification. (People v. Harvey (1979) 25 Cal.3d 754.) The probation report states
that Allen was arrested outside the victim's bedroom window and told the police
that he had been "peeping" in at women for two years. Allen admitted that he did it
for a sexual gratification and that it was "a problem" for him. That is an
understatement. Allen had a plastic bag filled with condoms and seven pairs of
women's underwear, all belonging to the burglary victims. He is not the typical
burglar.




1
    All statutory references are to the Penal Code.
2
 Allen appealed from the judgment in 2011 after he was sentenced to state prison.
We affirmed the judgment in an unpublished opinion. (B238083.) I have
considered the appellate record in B238083 which includes the probation report, the
written plea agreement, and the transcript of the change of plea, probation violation,
and sentencing hearings.
              Allen entered the change of plea in exchange for a suspended
imposition of sentence with a six year lid and the express condition that "I must
register as a sex offender" pursuant to section 290. ~(CT 79-80)~ After violating
probation four times, he was sentenced to four years state prison and subject to the
same sex registration order.
              Because Allen was convicted of first degree residential burglary,
registration as a sex offender was, in theory, discretionary rather than mandatory.
(See People v. Hofsheier (2006) 37 Cal.4th 1185, 1197-1198.) But the period of
registration pursuant to section 290 is for life. (Id., at p. 1198; People v. King
(2007) 151 Cal.App.4th 1304, 1309.)
              Section 290.006 provides that a court may impose sex offender
registration "if the court finds at the time of conviction or sentencing that the person
committed the offense as a result of sexual compulsion or for purposes of sexual
gratification." (Emphasis added.) Here registration as a sex offender was a term of
the negotiated disposition and is incorporated into the "conviction." (See People v.
Davis (2010) 185 Cal.App.4th 998, 1001 ["conviction" occurs when defendant
enters a plea admitting guilt or when a jury returns a guilty verdict].) Allen did not
object to the section 290 order when it was made, when he was sentenced to state
prison, or when he appealed the sentence. He is precluded from doing so now.
(People v. McClellan (1993) 6 Cal.4th 367, 381.)
              The majority remands for an evidentiary hearing to determine whether
the sex registration order was only a condition of probation. But such an order
would violate section 290.006.3 "The plain language of the statute requires the
court to decide whether to impose sex offender registration either at the time of

3
 One could argue that the trial court failed to make express findings or state its
reasons for ordering sex offender registration. (§ 290.006.) But those finding were
implied and any contention to the contrary is forfeited because Allen did not object.
(People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331,
353.)
                                           2
conviction or at the time of sentencing." (People v. Allexy (2012) 204 Cal.App.4th
1358, 1363.) "If a trial court wants to use the specter of sex offender registration as
a basis for encouraging a defendant to comply with the terms of probation, . . . there
is a way to do so without violating section 290.006. A trial court may suspend
imposition of sentence and place a defendant on probation, thereby leaving any
decision to impose sex offender registration to the time the court sentences the
defendant." (Id., at p. 1360.)
              Once a sex registration order is imposed pursuant to section 290 or
290.006, the trial court may not vacate/modify the order based on the theory that the
order expires after probation is revoked. (See e.g., Wright v. Superior Court (1997)
15 Cal.4th 521, 527 [purpose of lifetime sex-offender registration is to prevent
recidivism; People v. King, supra, 151 Cal.App.4th at p. 1309 [although court may
impose temporary registration requirement as condition of probation, it may not do
so under registration statutes which mandate lifetime, as opposed to temporary,
registration].) Allen was specifically ordered to register as a sex offender pursuant
to section 290. "By its terms, section 290 imposes a registration requirement on the
individual 'for the rest of his or her life. . . .' (§ 290, subd. (a)(1)(A) [now subd.
(b))].)" (People v. King, supra, 151 Cal.App.4th at p. 1308.)
              The written plea agreement speaks for itself. So do sections 290 and
290.006. Allen received the benefit of the plea bargain and should not be allowed
to trifle with the courts. (People v. Hester (2000) 22 Cal.4th 290. 295.) Having
accepted the benefits of his negotiated disposition, he should be estopped from
seeking to jettison an onerous aspect thereof. (Id., at p. 259; see also People v.
Velasquez (1999) 69 CalApp.4th 503, 506-507.)
       NOT FOR PUBLICATION


       YEGAN, J.


                                             3
                                   Brian E. Hill, Judge

                         Superior Court County of Santa Barbara

                           ______________________________


             Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant
Attorney General, Julie A. Malone, Supervising Deputy Attorney General, Charles Chung,
Deputy Attorney General, for Appellant Jeffrey A. Beard, Secretary of the California
Department of Corrections and Rehabilitation.
             Richard B. Lennon, under appointment by the Court of Appeal, for
Respondent Loren Bradley Allen.
