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Name: People v. Sheehy
Case #: E058373
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/09/2014

Defendant is ineligible to serve a county jail prison term under the Realignment Act because his prior misdemeanor conviction of annoying a child requires him to register as a sex offender under Penal Code section 290. Defendant committed a number of drug-related crimes in four different cases, for which he was granted probation. He was then convicted of misdemeanor annoying a child (Pen. Code, § 647.6, subd. (a)), which required him to register as a sex offender. Subsequently, he pled guilty to petty theft with a prior and the trial court imposed a county jail prison term under Realignment on all cases. The prosecution appealed, contending that defendant was not eligible for sentencing under Realignment because he had a misdemeanor conviction that required sex offender registration. Held: Sentence reversed. Penal Code section 1170, subdivision (h)(3)(C), disqualifies a defendant from serving his term locally if he is required to register as a sex offender. This applies whether the registration arises from a current or prior conviction because the subdivision (h)(3)(C) exclusion is “conditioned solely on a defendant’s status of being required to register as a sex offender.” This exclusion evidences the Legislature’s recognition that sex offenders pose a risk to society; that risk is the same whether a defendant was convicted of a misdemeanor or felony, and whether the registration requirement arises from the current or a prior conviction. Because defendant’s plea in the petty theft with a prior case was conditioned on him serving his time locally, the case must be remanded to give defendant the option of withdrawing his plea and for resentencing on the other cases.