In re Allen CA2/6

Filed 1/21/15 In re Allen CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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).