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Name: In re Rodden
Case #: C064437
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/29/2010

A guilty plea for failure to register as a sex offender in California may be set aside when the least adjudicated elements of the Kentucky conviction were gleaned from a probation report. Sex offender registration is required if an out-of-state conviction includes the least adjudicated elements which satisfy the elements of a crime enumerated in Penal Code section 290, subdivision (c), or when the foreign jurisdiction required the defendant to register as a sex offender. In 2003, Rodden entered a guilty plea to a Kentucky charge of criminal facilitation of sodomy in the first degree. The probation report contained her admissions that her boyfriend pressed her for permission to have sex with her 7 and 11-year-old daughters. She saw him put his penis in her daughter’s mouth, but he promised he would never do it again. He did. She did not controvert any of the factual statements at the time of sentencing she was granted probation, and she was not required to register as a sex offender in Kentucky. She moved to California while still on probation under the interstate compact and the California probation officer informed her that she would have to register. When she refused to register, she was charged with failure to register within five days of moving into Butte County, along with other offenses. A challenge to the felony charge resulted in a ruling that the Kentucky conviction was the equivalent of Penal Code section 266j. She entered a guilty plea to the charge and obtained a certificate of probable cause to challenge her guilty plea. She also filed a habeas petition which the court addressed as the means for a more rapid adjudication of a meritorious claim and to provide an adequate remedy where the sentence was likely to be served before the appellate process could conclude. The court found as a matter of statutory interpretation that Penal Code section 290 does not refer to conduct underlying a conviction in determining who must register. Rather, registration is predicated on conviction of specified Penal Code sections. In examining the elements of the Kentucky offense and Penal Code section 266j, the California statute contains an intent to provide or make a minor available for the purpose of engaging in a lewd and lascivious act and there is no equivalent mental state required for the Kentucky violation. The habeas petition was granted and the conviction was set aside.