Filed 8/11/16 P. v Fernandez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067551

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN325353)

MARTIN DIEGO FERNANDEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed in part, with directions.



         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette

Cavalier and Britton Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       Martin Diego Fernandez pleaded guilty to one count of residential burglary (Pen.

Code, §§ 459, 460; count 2)1 in exchange for dismissal of other charges and allegations.

Fernandez agreed the court would determine the sentence and whether or not to order

discretionary registration as a sex offender pursuant to section 290.006. Although

Fernandez stated the factual basis for his plea was that he "[a]ided and abetted another

person who entered a residence with intent to commit theft or a felony therein," the court

found Fernandez was the person who entered the female victim's bedroom through a

sliding door while she slept and repeatedly attempted to remove her pants. The court

ordered Fernandez to register as a sex offender and ordered him to stay away from the

victim. The minute order included a sex offender registration fee of $300 pursuant to

section 290.3, even though the court did not make such an order.

       Fernandez asserts three contentions on appeal: (1) the court abused its discretion

in ordering him to register as a sex offender pursuant to section 290.006 because the facts

he agreed upon to support his plea to count 2 did not include a sexual offense and he did

not agree to a Harvey waiver,2 (2) the imposition of a $300 sex offender fine was not

ordered and was unauthorized, and (3) the stay-away order was unauthorized. We

disagree with the first contention and conclude the court acted within its discretion to

order Fernandez to register as a sex offender pursuant to section 290.006. However,

1      All further statutory references are to the Penal Code unless otherwise indicated.

2     See People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey), holding conduct
underlying dismissed charges cannot be considered at sentencing absent a waiver.
                                             2
since the People concede the second point and we agree with the third, we strike the $300

fine imposed pursuant to section 290.3 and the stay-away order. We affirm the judgment

in all other respects.

                                     BACKGROUND

                                             A3

       "On [August 23, 2013], at about 5:30 [a.m.], [San Diego County Sheriff's

Department deputies] responded to a call from a residence in Fallbrook to investigate an

attempted rape. The deputies met with the residents of the home, victim Jane Doe and

her mother. Ms. Doe was nervous and crying. She had no physical injuries, and she

declined any medical attention. She reported she and her female friend had each

consumed a couple beers the night prior into the early morning. Her friend left the

residence around 2:00 [a.m.] that morning. Ms. Doe remembered leaving the sliding

glass door in her bedroom opened because it was hot, and the screen door was unlocked

and closed. She also kept the porch light on outside of her bedroom and left the bedroom

door unlocked and closed. A few hours after falling asleep, she woke up to the sound of

empty beer cans being knocked over. When she opened her eyes, she saw the silhouette

of a man standing over her bed. The man was looking down at her and breathing heavily.

He sat on her bed and reached to pull Ms. Doe's yoga pants halfway down. She pulled

them up again. The unknown man pulled Ms. Doe's yoga pants down twice more, and



3      Because both parties draw their recitation of the factual background from the
probation report and it is generally consistent with the trial testimony offered before the
mistrial, we quote the summary of evidence from the report.
                                              3
Ms. Doe pulled her pants up again. While she was not completely awake, she told the

suspect to get off of her while struggling to keep him from taking her pants off. She then

heard her mother pounding on her door. The suspect fled out the screen door. Ms. Doe

stated she had to unlock her bedroom door to let her mother in. She knew she did not

lock her door prior to falling asleep because she never locked it. She believed the suspect

locked the door after entering the bedroom. Ms. Doe described the suspect as being

muscular and 'having wide shoulders,' shaved head and wearing a white or light colored

tank top-like shirt. She did not see his face because it was too dark in her room. She did

not know if he was White or a light skinned Hispanic male.

       "The deputies searched the perimeter of the residence and noticed the wooden

fence in the backyard had three boards removed. Ms. Doe said the boards were present

the night before, and she believed the suspect must have removed them. Deputies found

a cigarette butt near the fence where the boards had been removed. No one who lived at

the residence smoked the brand of cigarette that was found. Ms. Doe reported she

smelled cigarette smoke earlier that morning while her friend was there, and she looked

outside to see where the odor was coming [from]. She thought it might have been her

brother, but he was asleep in his bedroom. She also said she smelled cigarette smoke on

the suspect during the attack. The cigarette butt was collected for evidence along with

latent prints from the screen[']s metal frame on the door and 'Touch DNA' from the pants

when the [man] pulled down Ms. Doe's pants. A shoe print having a diamond pattern

similar to a Vans tennis type shoe was collected.



                                            4
       "Later the same day around 11:00 [a.m.], Ms. Doe called the deputy and said she

remembered she had also went [sic] to sleep with the TV on, and it was off after the

suspect left.

       "On [October 30, 2013], a CODIS match from the Sheriff's crime lab from DNA

extracted from the cigarette butt was made on [Fernandez]. The investigator, who was

familiar with [Fernandez] from prior law enforcement contact, knew [Fernandez] lived

down a dirt road to the [w]est of the victim's residence. He contacted Ms. Doe and

showed her a photo lineup. She identified [Fernandez] as the suspect who committed the

offense. Ms. Doe's brother was present and he said [Fernandez's] name was 'Diego,' and

he lived down the street from them. Her brother met [Fernandez] before and did not like

him or the people he associated with. Both the victim and her brother said [Fernandez]

had no reason to be at their residence. Ms. Doe said she saw [Fernandez] two weeks

prior to the offense. He walked [past] her home while she was outside washing her car.

[Fernandez] passed by a second time and she did not pay attention to him.

       "A search warrant was acquired on [Fernandez] and his residence. Deputies were

looking for 'Vans' type tennis shoes, a generic brand type of cigarette, and a DNA sample

from [Fernandez].

       "On [November 5, 2013], detectives served the search warrant at [Fernandez's]

residence and he was detained. The deputies recovered from [Fernandez's] room a pair of

Vans tennis shoes [sic] matched the diamond pattern at the victim's residence, the brand

of cigarettes recovered from the victim's yard, and a white 'wife beater' [T]-shirt. They

recovered numerous pornography magazines and CD's and a metal bar with a handmade

                                             5
handle at one end to use as a club. [Fernandez] was arrested and transported to the

Fallbrook Station. He said he did not know his neighbors, but he knew the victim's

brother because he asked to borrow a bike pump. [Fernandez] said he had never been in

or around the victim's yard. When the deputy explained they found DNA to prove he was

at the victim's residence the night of the offense, [Fernandez] denied ever going to the

residence, and [said] he did not know the girl."

                                              B

       Fernandez was charged with one count of felonious assault with intent to commit

rape during first degree battery (§§ 220, subd. (b), 460; count 1), burglary of the first

degree by unlawfully entering an inhabited dwelling with intent to commit rape (§§ 459,

460; count 2), and possession of a billy club (§ 22210; count 3). Count 2 included a

violent felony allegation stating a person, other than an accomplice, was present in the

residence at the time of the burglary. (§ 667.5, subd. (c)(21).)

       After a jury was unable to reach a verdict in a bifurcated trial of counts 1 and 2,

Fernandez pleaded guilty to count 2 as a residential burglary (§§ 459, 460). Fernandez

admitted these charges and stated he "[a]ided and abetted another person who entered a

residence with intent to commit theft or a felony therein." Fernandez agreed the court

would decide the sentence and whether or not to impose discretionary registration as a

sex offender. Fernandez did not agree to a Harvey waiver. In accordance with the plea,

the People dismissed the balance of the counts and the violent felony allegation in count

2.



                                              6
       In his probation interview, Fernandez stated he was under the influence of

methamphetamine at the time of the offense. He said he knew the victim's brother from

the neighborhood. Fernandez said he and a friend decided to steal a video game console,

television, and other items from the victim's house. He stated his friend entered the house

while Fernandez remained outside as a lookout. He reported the friend ran from the

residence about 40 seconds after entering the residence. Fernandez denied knowing what

happened inside the residence until he was arrested.

       According to the probation report, Fernandez was evaluated in the moderate to

high risk category for being convicted of another sexual offense. The probation

department indicated Fernandez failed to take responsibility for his actions and

minimized his role by saying he was acting as a lookout for a friend. It recommended

Fernandez be ordered to register as a sex offender pursuant to section 290.006.

       Fernandez submitted a psychological report stating Fernandez denied entering the

residence or sexually assaulting the victim. The psychologist opined Fernandez did not

need to register as a sex offender and did not "seem to pose any significant risk to the

public in terms of committing a sexual offense."

       The court sentenced Fernandez to the middle term of four years in state prison.

The court also exercised its discretion to order Fernandez to register as a sex offender. It

imposed various fines and fees. At the conclusion of the hearing, the court stated

Fernandez was to have no contact with the victim.

       Along with his notice of appeal, Fernandez filed a request for a certificate of

probable cause stating he intended to challenge "the decision to order that he register as a

                                             7
sex offender pursuant to [section] 290.006." The court denied Fernandez's request for a

certificate of probable cause finding he had "not shown reasonable, constitutional,

jurisdictional, or other grounds for appeal relating to the legality of the proceedings and

denies the request." Fernandez contends the denial of his request for a certificate of

probable cause has no effect because he is not seeking to set aside his plea. (§ 1237.5;

Cal. Rules of Court, rule 8.304(b)(4).)

                                       DISCUSSION

                                               I

                          Discretionary Sex Offender Registration

       Fernandez concedes the trial court's consideration of discretionary registration was

within the scope of the plea agreement. Fernandez also states he "does not challenge the

sufficiency of the evidence introduced at trial which supports the trial court's belief that

[Fernandez] was the man in the house or the wisdom of the discretionary decision to

order registration in light of that belief." Instead, Fernandez asks us to hold "the trial

court's discretion under … section 290.006 was limited by law to the factual scenario

agreed to in the plea agreement" and the court breached the plea agreement by

considering facts beyond his factual scenario. We decline to so hold.

                                              A

                                  General Legal Principles

       The court has discretion to order any person to register as a sex offender, pursuant

to the Sex Offender Registration Act, for any offense not included specifically in section

290, subdivision (c), "if the court finds at the time of conviction or sentencing that the

                                              8
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.) "[U]nder the discretionary registration

statute, the required finding need only be found true by a preponderance of the evidence."

(People v. Mosley (2015) 60 Cal.4th 1044, 1052, fn. 4.)

       "A plea bargain is a negotiated agreement between the prosecution and the

defendant by which a defendant pleads guilty to one or more charges in return for

dismissal of one or more other charges. [Citation.] … [Citation.] [¶] Because a

negotiated plea agreement is in the nature of a contract, 'it is interpreted according to

general contract principles.' " (People v. Martin (2010) 51 Cal.4th 75, 79.) " 'The

fundamental goal of contractual interpretation is to give effect to the mutual intention of

the parties.' " (People v. Shelton (2006) 37 Cal.4th 759, 767.) " 'The mutual intention to

which the courts give effect is determined by objective manifestations of the parties'

intent, including the words used in the agreement, as well as extrinsic evidence of such

objective matters as the surrounding circumstances under which the parties negotiated or

entered into the contract; the object, nature and subject matter of the contract; and the

subsequent conduct of the parties.' " (Ibid.) " '[T]he course of actual performance by the

parties is considered the best indication of what the parties intended the writing to

mean.' " (Epic Communications, Inc. v. Richwave Technology, Inc. (2015) 237

Cal.App.4th 1342, 1355.)




                                              9
                                             B

                                        Application

       In this case, Fernandez pleaded guilty to count 2 for violating sections 459 and

460. The charge in count 2 regarding violation of section 459 stated the entry of the

building was done "with the intent to commit rape."

       The plea form states Fernandez was not induced to enter this plea by any promise

or representation except "dismiss remaining charges [and] allegationssentence to court;

judge to decide discretionary 290 registration." Fernandez did not admit the special

allegation that the burglary was a violent felony within the meaning of section 667.5,

subdivision (c)(21). As a result, the violent felony allegation was dismissed along with

the remaining counts.

       The plea form set out a factual basis for his plea stating he "[a]ided and abetted

another person who entered a residence with intent to commit theft or a felony therein."4

Both the probation report and the prosecutor's sentencing brief based the

recommendations on the factual scenario that Fernandez entered the residence for sexual

gratification. Fernandez's attorney argued in his brief the facts asserted by the

prosecution were not believable and suggested the court consider asking the probation

officer to prepare a new report without the assumption Fernandez entered the bedroom.

Nevertheless, he did not contend the court was contractually bound to consider only



4      We note admitting the entry of the residence with an intent to commit "a felony
therein" is not inconsistent with the charge the entry was committed with an intent to
rape.
                                             10
Fernandez's aiding and abetting scenario. Nor did he request to withdraw the plea based

upon a breach of the bargain if the court were to consider the prosecutor's factual theory.

       During sentencing, Fernandez's attorney merely pointed out the difference

between the factual theories presented by the prosecution and Fernandez. Fernandez did

not ask to remove the "with the intent to rape" language from count 2 charging a violation

of section 459 or argue a breach of the plea agreement. Rather, Fernandez's attorney

acknowledged it was up to the trial court to ultimately determine which factual basis it

would accept to proceed with its analysis for sentencing and discretionary registration.

Therefore, the conduct of the parties in this case indicate they did not intend to bind the

court to Fernandez's factual basis for purposes of sentencing or for the court's exercise of

its discretion under section 290.006.

       We also note the court in this case was not obligated to inquire about the factual

basis of the plea since the plea was not conditioned upon a sentencing outcome. "Section

1192.5 … imposes on trial courts the burden of inquiry into a factual basis for a guilty

plea only for negotiated pleas specifying the punishment to be imposed." (People v.

Hoffard (1995) 10 Cal.4th 1170, 1174, italics omitted.) The court has no such duty to

inquire into the factual basis of the plea not conditioned upon receipt of a particular

sentence. (Levinson, California Criminal Practice (The Rutter Group 2015) ¶ 13:32.)

"There is … no federal constitutional requirement that a court, whether federal or state,

inquire into the factual basis for a plea. '… The Constitution's standard "was and remains

whether the plea represents a voluntary and intelligent choice." ' " (Hoffard, at p. 1183.)



                                             11
Here, Fernandez agreed sentencing would be left to the discretion of the court as would

the determination about discretionary sex offender registration.

       The court did ask Fernandez if the facts stated in the plea form were what

happened. However, Fernandez cited no authority for his argument on appeal that a court

is bound by a factual scenario a defendant agrees supports a conviction when the court is

deciding whether or not to impose discretionary sex offender registration under section

290.006. The factual scenario provided by Fernandez merely ensured he committed a

crime at least as serious as the first degree burglary conviction to which he was willing to

plead.5

       Fernandez's reliance upon Harvey, supra, 25 Cal.3d 754 does not assist him. In

Harvey, the Supreme Court held, absent a waiver, "it would be improper and unfair to

permit the sentencing court to consider any of the facts underlying the dismissed count …

for purposes of aggravating or enhancing defendant's sentence" and the defendant should

"suffer no adverse sentencing consequences by reason of the facts underlying, and solely

pertaining to, the dismissed count." (Id. at p. 758.) However, the court also explained

the court may take into account facts underlying the dismissed charges if they are

transactionally related to the offense to which the defendant pleaded guilty. " 'The plea



5      "The purpose of the [section 1192.5] requirement [for the court to inquire as to the
factual basis for the plea] is to protect against the situation where the defendant, although
he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do
not constitute the offense with which he is charged. [Citation.] Inquiry into the factual
basis for the plea ensures that the defendant actually committed a crime at least as serious
as the one to which he is willing to plead." (People v. Watts (1977) 67 Cal.App.3d 173,
178.)
                                             12
bargain does not, expressly or by implication, preclude the sentencing court from

reviewing all the circumstances relating to … admitted offenses' " when choosing the

appropriate sentence " 'commensurate with the gravity of his crime.' " (Ibid.; see People

v. Calhoun (2007) 40 Cal.4th 398, 406-407.) Courts have observed the Harvey rule

"must give way … when it would prevent the trial court from considering all the factors

necessary to an informed disposition for the offenses to which defendant has pleaded

guilty." (People v. Klaess (1982) 129 Cal.App.3d 820, 823.)

       Count 2 incorporated an intention to commit rape in the burglary charge.

Therefore, it was appropriate for the court to consider all of the evidence related to the

charges in count 2, including what occurred when the person was in the bedroom.

Additionally, the evidence in this case about the sexual assault charged in count 1 was

transactionally related to the burglary. The event giving rise to both counts occurred in

one night with one victim over the course of seconds or minutes.

       Moreover, for purposes of sex offender registration, "discretionary registration

does not depend on the specific crime of which a defendant was convicted. Instead, the

trial court may require a defendant to register under section [290.006] even if the

defendant was not convicted of a sexual offense." (People v. Hofsheier (2006) 37 Cal.4th

1185, 1197-1198 (Hofsheier),6 citing People v. Olea (1997) 59 Cal.App.4th 1289

(Olea).)




6     Hofsheier, supra, 37 Cal.4th 1185 was disapproved on another point in Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 888 (Johnson).
                                             13
       In Olea, supra, 59 Cal.App.4th 1289, the defendant was alleged to have entered

the homes of elderly individuals where he stole or disturbed items. In one instance, a

female victim awoke to find the defendant on top of her pulling at her adult diaper. He

fled when she called for help. In another instance, a female victim was awoken by the

defendant. When she went into a bathroom, she saw him begin to masturbate and he

grabbed at her as she walked past him to go to a neighbor's to call police. (Id. at p. 1294.)

The defendant pleaded guilty to residential burglary charges in exchange for dismissal of

the charged sex offenses. Although the parties agreed the dismissed offenses were

transactionally related to the charges to which the defendant pleaded guilty, there was no

mention during the plea colloquy of sex offender registration. (Id. at pp. 1293-1294.) At

the sentencing hearing, over defense objections, the trial court ordered sex offender

registration under the discretionary statute. (Id. at p. 1295.)

       The appellate court noted the circumstances of the plea in that case could

reasonably have led the defendant to believe the dismissal of the sex offense counts

would eliminate the basis for registration. (Olea, supra, 59 Cal.App.4th at p. 1297.) The

appellate court concluded it was a violation of the defendant's due process rights to

impose a registration requirement without notice and violated the plea agreement. (Id. at

p. 1298.) In remanding the matter for resentencing, the appellate court stated, "[t]he

court's determination that [defendant] should have to register as a sex offender was

eminently within its discretion; its error was in imposing the requirement without offering

[defendant] a chance to withdraw his plea." (Id. at p. 1299.)



                                              14
       Here, in contrast to Olea, the plea agreement contemplated the court's exercise of

discretion in determining whether or not to order sex offender registration. When the

court took the plea, Fernandez stated he understood a discretionary lifetime requirement

to register as a sex offender was a potential of his plea even though he asserted an

alternate factual basis for his plea. We conclude, therefore, it was proper and within the

scope of the plea agreement for the court to consider the evidence presented at trial

regarding the incident, to find Fernandez was the person in the bedroom, and to exercise

its discretion to impose lifetime registration under section 290.006. "In order to make a

discretionary determination as to whether or not to require registration [under section

290.006], the trial court logically should be able to consider all relevant information

available to it at the time it makes its decision." (People v. Garcia (2008) 161

Cal.App.4th 475, 483, disapproved on another ground in Johnson, supra, 60 Cal.4th at

p. 888, and disapproved on another ground in People v. Picklesimer (2010) 48 Cal.4th

330, 338, fn. 4, 339.)

                                             II

                                     Sex Offender Fine

       The parties agree the court did not orally impose a $300 sex offender fine pursuant

to section 290.3, although this fine appears on the minute order of the sentencing hearing

and on the abstract of judgment. We may correct a judgment at any time to reflect the

oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

       Additionally, section 290.3, subdivision (a) provides in pertinent part, "[e]very

person who is convicted of any offense specified in subdivision (c) of [s]ection 290 shall,

                                             15
in addition to any imprisonment or fine, or both, imposed for commission of the

underlying offense, be punished by a fine of three hundred dollars ($300) upon the first

conviction … unless the court determines that the defendant does not have the ability to

pay the fine." Sections 459 and 460 are not among the offenses listed in section 290,

subdivision (c). Section 290.3 does not refer to the discretionary sex offender registration

under section 290.006. Therefore, we strike the $300 fine as unauthorized. (People v.

Scott (1994) 9 Cal.4th 331, 354; People v. Wilson (2013) 219 Cal.App.4th 500, 518.)

                                             III

                             Postjudgment No-Contact Order

       Fernandez contends the broad and indefinite order to stay away from the victim

was unauthorized and should be stricken. (People v. Barnwell (2007) 41 Cal.4th 1038,

1048, fn. 7 ["[a] claim that a sentence is unauthorized may be raised for the first time on

appeal, and is subject to correction whenever the error comes to the attention of the

reviewing court"].) We agree.

       During the pendency of the criminal proceedings, Fernandez was ordered to have

no contact with the victim. Such an order was permitted under section 136.2, subdivision

(a), during the criminal proceeding before the judgment. However, section 136.2,

subdivision (a), does not authorize a postjudgment no-contact order. (People v. Ponce

(2009) 173 Cal.App.4th 378, 383 (Ponce).)

       Section 136.2, subdivision (i)(1) allows a court to issue a protective order for up to

10 years after a defendant is convicted of certain enumerated crimes involving domestic

violence or "any crime that requires the defendant to register pursuant to subdivision (c)

                                             16
of [s]ection 290." However, the crimes for which Fernandez was convicted did not

involve domestic violence and, as we have discussed, violations of section 459 and 460

are not among the crimes listed in subdivision (c) of section 290, which require

mandatory sex offender registration. Therefore, subdivision (i) of section 136.2 does not

authorize the indefinite no-contact order here.

       "[E]ven where a court has inherent authority over an area where the Legislature

has not acted, this does not authorize its issuing orders against defendants by fiat or

without any valid showing to justify the need for the order." (Ponce, supra, 173

Cal.App.4th at p. 384.) The prosecutor and the probation report noted the victim's

traumatization as a result of the event and the probation report recommended a no-contact

order. However, no evidence was presented regarding an ongoing threat to the victim

from Fernandez to justify a broad no-contact order for an indefinite period of time.

(People v. Robertson (2012) 208 Cal.App.4th 965, 996; Ponce, at pp. 384-385 ["a

prosecutor's wish to have such an order, without more, is not an adequate showing

sufficient to justify the trial court's action"].) Therefore, the no-contact order was

unauthorized and must be stricken. (Robertson, supra, at p. 996.)

       In so holding, we do not minimize the seriousness of Fernandez's crime or the

traumatization and fear the victim suffered as a result. We note, however, the victim may

seek a protective order under Code of Civil Procedure section 527.6, if necessary.

                                       DISPOSITION

       The trial court is directed to strike from the court minutes and the abstract of

judgment the $300 fine imposed pursuant to section 290.3 as well as the no-contact order.

                                              17
The court is also directed to send a certified copy of the amended abstract of judgment to

the Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.


                                                                      MCCONNELL, P. J.

WE CONCUR:




HUFFMAN, J.




O'ROURKE, J.




                                            18
