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Name: People v. Jerry Z.
Case #: A127878
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 11/29/2011
Subsequent History: Rev. gr. 3/14/12 (S199289)

A defendant may be entitled to specific performance of his plea bargain guaranteeing him relief from sex registration, despite subsequent change, with retroactive application in the pertinent statutes, making registration mandatory. In 1997, appellant entered into a plea bargain whereby he pled no contest to one count of Penal Code section 288.5 (continuous sexual abuse of a minor), in exchange for dismissal of other charges. There was no written plea agreement and no mention of prospective relief from conviction or registration. Appellant was advised that he would be required to register under Penal Code section 290, but was not told how long the requirement would last. At the time of the plea, a defendant convicted of section 288.5 was not precluded from relief under Penal Code section 1203.4, and once granted such relief, could then apply for a certificate of rehabilitation which could have led to relief of the sex offender registration obligation. Appellant was granted probation on April 17, 1997. Effective January 1, 1998, the statute was amended retroactively and a defendant convicted under section 288.5 became statutorily ineligible for relief under section 1203.4, as well as the related certificate of rehabilitation and relief from registration process. Appellant successfully completed probation and remained crime-free for ten years. He repeatedly petitioned for relief under section 1203.4, with the thrust of his motion being that he was entitled to relief based on the terms of the plea bargain. Relief, however, was denied and appellant appealed. The appellate court analyzed the issue on the basis of the law relating to enforcement of plea bargains. It agreed with a lower court finding that relief under section 1203.4, as written at the time of the agreement, was an implicit term of the plea bargain. It also found, per the declarations of appellant and defense counsel that this term was a significant term of the agreement. Likewise, the granting of a certificate of rehabilitation and relief from registration were found to be significant terms of the plea bargain. Thus, appellant was entitled to specific performance of the bargain. The alternate remedy of permitting appellant to withdraw his plea was not viewed as appropriate as appellant had fulfilled his part of the bargain and, due to the passage of time, prosecution was not proper. The case was remanded with instruction to the court to grant the relief promised in the bargain even though the action would result in technical violations of sections 1203.4, 4852.01, and 290. (See People v. Arata (2007) 151 Cal.App.4th 778.)