Filed 12/13/13 P. v. Meraz 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----




THE PEOPLE,                                                                                  C073293

                   Plaintiff and Respondent,                                   (Super. Ct. No. 12NCR09460)

         v.

ARTEMIO HERNANDEZ MERAZ,

                   Defendant and Appellant.




         Defendant Artemio Hernandez Meraz pled guilty to stalking with a prior stalking
conviction. In exchange, eight related counts and a companion case were dismissed.
Defendant was sentenced to prison for five years. The trial court imposed mandatory sex
offender registration pursuant to Penal Code section 290. (Pen. Code,1 § 290, subd. (b).)




1        Undesignated statutory references are to the Penal Code.

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The trial court also issued a lifetime criminal protective order for the victim and her
children.
       Defendant contends, and the People concede, sex offender registration is not
mandatory because the stalking offense is not one of the triggering offenses in section
290, subdivision (c). The parties agree that the trial court has discretion to order
registration following a conviction of that offense (§ 646.9, subd. (d)), “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. The court shall state on the
record the reasons for its findings and the reasons for requiring registration.”
(§ 290.006.) The parties further agree that a discretionary registration order would
violate the plea agreement, and that defendant must be offered the chance to withdraw his
plea should the trial court find discretionary registration appropriate.
       Defendant contends, and the People concede, the trial court’s lifetime protective
order is unauthorized by statute or the court’s inherent authority. The parties agree that,
on remand, the trial court should exercise its discretion as to the length of any protective
order. We remand.
                                           FACTS
       Victim E. B. began dating defendant in April 2011, and they commenced a sexual
relationship that lasted until September 2011. In July 2012, E. B. moved to Orland.
Defendant occasionally appeared at her residence, and she informed him that she wanted
only to be friends. Defendant’s behavior became increasingly erratic and aggressive. He
would cause disturbances outside E. B.’s residence until she would relent and allow him
inside. On two occasions, defendant told E. B. that he wanted to have sexual intercourse.
When she tired of arguing with him, she acquiesced to intercourse and digital penetration
of her vagina.
       On August 15, 2012, defendant appeared at E. B.’s residence, claimed to be
suicidal, and was allowed inside. After E. B. refused defendant’s demands for

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intercourse, he forcefully pinned her down on the bed, hit the left side of her jaw, and
then pulled off her shorts, placed his fingers in her vagina, and engaged in sexual
intercourse. At one point defendant tied rope to E. B.’s wrist and to his neck and told
E. B. that he wanted her to choke him. E. B. resisted defendant’s actions and attempted
to punch, scratch, and kick defendant to get him off of her.
       On September 2, 2012, while E. B. was in the bathtub conversing on the
telephone, defendant entered her residence without permission and walked into the
bathroom. He angrily confronted her, calling her a slut; grabbed her telephone and took
it apart; and then physically fought with her for possession of the telephone. Defendant
made E. B. delete photographs from her telephone and then engaged in digital penetration
and sexual intercourse with her. She did not report the incident because defendant had
threatened to kill himself at her residence “so her two small children would see him.”
       On September 8, 2012, E. B. telephoned her cousin and asked if she could go to
his house. She explained that she feared for her safety. While at his residence, E. B. told
her cousin what defendant had done to her. Believing that defendant had followed her to
the cousin’s residence, she asked the cousin to check whether defendant was outside.
The cousin went out and found defendant hiding in a nearby ditch. The two men fought,
and the cousin chased defendant away. The next day, E. B. found harassing text
messages that had been sent by defendant.
       E. B. contacted Orland police officers and reported that defendant, her ex-
boyfriend, had physically and sexually assaulted her. E. B.’s parents reported that on past
occasions they had witnessed defendant lurking near E. B.’s residence in the early hours
of the morning.




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                                       DISCUSSION
                                              I
                                 Sex Offender Registration
       Defendant contends, and the People acknowledge, the matter must be remanded
for further proceedings because sex offender registration is not mandatory but may be
imposed in an exercise of the trial court’s discretion. We agree.
       In January 2013, defendant pled guilty to the stalking charge with the
understanding that eight remaining counts and a companion case would be dismissed.
Five of the dismissed counts were alleged to be subject to mandatory lifetime sex
offender registration. On the written plea form, under the heading “Consequences of my
Plea,” the paragraph entitled “Registration” was crossed out and defendant did not initial
the box for that paragraph. The oral plea proceedings did not include any discussion of
sex offender registration. In fact, defendant’s counsel described the sex crime counts
being dismissed in exchange for the plea as “absolute fabrications.” The prosecutor
objected to that description but did not elaborate. The trial court set bail over the
prosecutor’s objection. Defendant did not enter a Harvey2 waiver allowing consideration
of the dismissed counts at sentencing.3
       At sentencing in February 2013, defendant’s counsel argued that evidence the
prosecution had furnished to the defense “proved [defendant] did not sexually assault the
victim in this matter. He pled to the stalking allegation . . . .” The probation officer




2      People v. Harvey (1979) 25 Cal.3d 754.
3      The plea form advised defendant that the trial court could refuse to accept the plea
agreement “if the court discovers new facts.” Defendant was not advised, in the language
of section 1192.5, that the court could “withdraw its approval in the light of further
consideration of the matter.”

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added that “[a] lot of what [defense counsel] said is true. There’s just a lot of unknowns
about his intent on stalking.”
       In response to these remarks, the trial court stated: “And in this case yeah, there
might be disputes about what the sexual conduct was between [defendant] and the victim
in this case, but there’s no dispute that there was stalking, because that’s what was pled
to. There was a stipulated -- I mean, there was a factual basis stated on the record.”4
       Following these remarks, the trial court imposed a sexual offender registration
requirement pursuant to section 290.
       Section 290 requires mandatory lifetime sex offender registration for defendants
convicted of specified offenses. (§ 290, subd. (c).) Stalking under section 646.9 is not
one of those offenses. Thus, the mandatory registration is unauthorized by statute and
must be stricken notwithstanding the lack of contemporaneous objection. (People v.
Scott (1994) 9 Cal.4th 331, 354.)
       However, the stalking statute (§ 646.9, subd. (d)) gives the trial court discretion to
“order a person convicted of a felony under this section to register as a sex offender
pursuant to Section 290.006.” The latter provision states that a person ordered to register
for an offense not listed in section 290, subdivision (c), shall so 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. The court shall state
on the record the reasons for its findings and the reasons for requiring registration.”
(§ 290.006.)
       To require registration under section 290.006, “the trial court must engage in a
two-step process: (1) it must find whether the offense was committed as a result of
sexual compulsion or for purposes of sexual gratification, and state the reasons for these



4       In fact, defendant stipulated that the probation report would provide a factual basis
for the plea.

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findings; and (2) it must state the reasons for requiring lifetime registration as a sex
offender. By requiring a separate statement of reasons for requiring registration even if
the trial court finds the offense was committed as a result of sexual compulsion or for
purposes of sexual gratification, the statute gives the trial court discretion to weigh the
reasons for and against registration in each particular case.” (People v. Hofsheier (2006)
37 Cal.4th 1185, 1197.)
       Because a discretionary registration order would violate the plea agreement,
defendant must be offered the chance to withdraw his plea should the trial court find
discretionary registration appropriate. (People v. Walker (1991) 54 Cal.3d 1013, 1024,
overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183; People v.
Olea (1997) 59 Cal.App.4th 1289, 1294, 1299.)
                                              II
                                 Lifetime Protective Order
       Defendant contends, and the People concede, the lifetime criminal protective order
is unauthorized and must be stricken. The parties agree that, on remand, the trial court
must exercise its discretion whether to issue an order and, if an order is issued, its
duration. At sentencing, the probation officer requested a criminal protective order for
life. Pursuant to section 646.9, subdivision (k), the trial court issued a lifetime protective
order prohibiting contact with E. B. and her children. Although the second page of the
protective order form states that orders under section 646.9 are valid for up to 10 years,
the first page of the order contains a typewritten notation that the “Criminal Protective
Order is issued for **LIFE**.”
       Section 646.9, subdivision (k)(1) provides in relevant part that “[t]he sentencing
court also shall consider issuing an order restraining the defendant from any contact with
the victim, that may be valid for up to 10 years, as determined by the court. It is the
intent of the Legislature that the length of any restraining order be based upon the



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seriousness of the facts before the court, the probability of future violations, and the
safety of the victim and his or her immediate family.”
       While the trial court was statutorily authorized to issue a protective order, it was
not authorized to exceed the 10-year limit and thus was not authorized to make the order
effective for life. The lifetime order may be corrected on appeal notwithstanding
defendant’s failure to assert the matter in the trial court. (People v. Scott, supra,
9 Cal.4th at p. 354; People v. Ponce (2009) 173 Cal.App.4th 378, 381-382.)
       On remand, the trial court shall exercise its discretion as to the duration, if any, of
a criminal protective order under section 646.9, subdivision (k), applying the factors
specified by the Legislature.
                                        DISPOSITION
       The lifetime criminal protective order and the mandatory sex offender registration
orders are reversed. The matter is remanded to the trial court to consider in its discretion
the proper duration of a criminal protective order and whether to require sex offender
registration. If the court elects in its discretion to require sex offender registration, it
shall allow defendant an opportunity to withdraw his plea.



                                                           ROBIE                  , Acting P. J.



We concur:



      BUTZ                    , J.



      HOCH                    , J.



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