Filed 9/13/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A164739
v.
JUNAID MANZOOR, (Alameda County
Super. Ct. No. 21CR014104)
Defendant and Appellant.
In 2006, defendant Junaid Manzoor pleaded guilty in Contra Costa
County to a felony violation of Penal Code sections 288.2 and 6641 for
attempting to distribute harmful material to a minor. In exchange for his
plea, the prosecutor dismissed count one, in which it was alleged Manzoor
attempted to commit a lewd act upon a child under the age of 14 in violation
of sections 288, subdivision (a) and 664. As a result of his conviction, he was
required to register as a sex offender for life under former section 290.
(Former § 290, subd. (a)(2)(A), as amended by Stats. 2005, ch. 722, § 3.5.)
Almost 14 years later, the trial court granted his petition to reduce his
conviction from a felony to a misdemeanor pursuant to section 17, subdivision
(b). Then, after the Legislature amended section 290 to provide for a tiered
system of registration time periods (Stats. 2020, ch. 79, § 2), Manzoor filed a
petition in Alameda County for relief from the registration requirements.
The court summarily denied his petition.
1 All undesignated statutory references are to the Penal Code.
On appeal, Manzoor argues that due to the amendments to section 290,
he is entitled to relief from the registration requirements because the
reduction of his felony conviction to a misdemeanor places him in “tier one”
under the statute, and he is therefore only subject to a 10-year registration
requirement, which he has satisfied. For the reasons explained below, we
will affirm the order.
I. BACKGROUND
In April 2006, Manzoor pleaded guilty in the Contra Costa County
Superior Court to felony attempting to distribute harmful material to a
minor. (§§ 664, subd. (a), 288.2, subd. (b).) The trial court suspended
imposition of sentence and placed Manzoor on probation for three years with
a 90-day jail term, which he was permitted to satisfy on electronic home
monitoring in Santa Clara County. In addition, he was ordered to “[r]egister
in Sunnyvale [Santa Clara County]…per PC 290 [within] 5 days”.
In February 2020, based on a petition Manzoor filed, the court in
Contra Costa County reduced his felony conviction to a misdemeanor
pursuant to section 17, subdivision (b), and ordered the case dismissed under
section 1203.4.2
In November 2021, Manzoor filed a petition for relief from the sex
offender registration requirements in the Superior Court in Alameda County,
where he apparently resided and was required to register. He argued that
under recent amendments to section 290, the current version of the statute
“provides no obligation to register for those who stand convicted of
misdemeanor 288.2,” even though a felony conviction of section 288.2 was a
“tier three” offense subject to lifetime registration, and thus he “stands with
2 A “[s]ection 1203.4 dismissal . . . does not affect sex offender
registration.” (People v. Chatman (2018) 4 Cal.5th 277, 287.)
2
those for whom registration is imposed for none [sic] listed offenses under
section 290.006.” He contended that section 290.006, in turn, provided that
“such registrants are placed in tier 1 ([registration for] 10 years) unless
otherwise directed by the sentencing court.” Therefore, he argued, he was
eligible for relief from registration based on his placement in tier one, which
he asserted had taken place by operation of law once his offense was reduced
to a misdemeanor.
The local law enforcement agency submitted a report to the court
stating that Manzoor was subject to a “[l]ifetime” mandatory registration
period.
The prosecutor in Alameda County filed a response to Manzoor’s
petition, arguing that it should be summarily denied because he did not
qualify for termination as a “lifetime registrant” in “[t]ier 3” and did not fall
under the “risk-level exception.”
In February 2022, the trial court summarily denied Manzoor’s petition,
finding that Manzoor did not qualify for relief from the sex offender
registration requirements because he was a lifetime registrant.
This appeal followed.
II. DISCUSSION
Manzoor argues that because the court reduced his felony violation of
section 288.2 to a misdemeanor pursuant to section 17, subdivision (b)(3), he
is entitled to relief from the sex offender registration requirements under the
amendments to section 290 that became effective on January 1, 2021. As we
will explain, we disagree that the reduction of Manzoor’s felony conviction to
a misdemeanor qualified him for relief from the registration requirements,
because subdivision (e) of section 17 bars courts from granting such relief
3
when the defendant was found guilty of an offense for which lifetime
registration is required, and the amendments to section 290 do not reflect a
legislative intent to create an exception to this rule.3 The trial court
therefore did not err in denying Manzoor’s petition for relief from the
registration requirements.
A. Section 290’s Sex Offender Registration Requirements Before
and After the 2021 Amendments
At the time Manzoor pleaded guilty to a felony violation of section
288.2, the Sex Offender Registration Act (§§ 290–290.04) required lifetime
registration for defendants convicted of certain offenses, including “any felony
violation of Section 288.2 . . . .” (Former § 290, subd. (a)(2)(A), as amended by
Stats. 2005, ch. 722, § 3.5.) “Section 290 ‘applies automatically to the
enumerated offenses, and imposes on each person convicted a lifelong
obligation to register.’ ” (Wright v. Superior Court (1997) 15 Cal.4th 521,
527.) Misdemeanor violations of section 288.2 were not listed in former
section 290. (See former § 290, subd. (a)(2)(A), as amended by Stats. 2005,
ch. 722, § 3.5.)
3 In the alternative, Manzoor argues that because the “misdemeanor”
offense “for which [he] stands convicted is not listed in Section 290,” it is not
a “registerable offense,” and he would only be required to register if the trial
court made certain findings under section 290.006, which the court did not.
Section 290.006 provides that “[a]ny person . . . who is not required to
register pursuant to Section 290, shall so register, if the court finds at the
time of conviction or sentencing that the person committed the offense as a
result of sexual compulsion or for purposes of sexual gratification.” (§
290.006, subd. (a).) “The person shall register as a tier one offender . . . .” (§
290.006, subd. (b).) The issue of whether the court made any findings under
section 290.006 has no impact on this appeal, as our interpretation and
application of subdivision (e) of section 17 is dispositive.
4
Effective January 1, 2021, the Legislature amended section 290’s
lifetime registration requirement to provide for a tiered system of registration
time periods dependent on the offense for which the defendant was convicted.
(See Stats. 2017, ch. 541, § 2.5; Stats. 2018, ch. 423, § 52; Stats. 2020, ch.
79, § 2.) A “tier one offender” must register for a minimum of 10 years, a “tier
two offender” must register for a minimum of 20 years, and a “tier three
offender” must continue to register for life. (§ 290, subds. (d)(1)(A), (2)(A), (3),
respectively.)
As in the prior version of section 290, the current version of the statute
does not expressly mention misdemeanor violations of section 288.2 and still
requires a defendant who is convicted of a “felony violation of [s]ection 288.2”
to register, albeit according to the tiered registration system. (§ 290, subds.
(b), (c)(1).) Section 290 now provides that a defendant is a tier three offender
subject to lifetime registration if, as relevant here, “[t]he person was
convicted of violating . . . [¶]. . . [¶]. . . [s]ection 288.2.” (§ 290, subd.
(d)(3)(C)(x).) Thus, even under the new tiered registration system, a
defendant convicted of a felony violation of section 288.2 is still subject to
mandatory lifetime registration.
B. The Relevant Provisions of Section 17 and Related Caselaw
Section 17, subdivision (b) governs the process used to determine
whether an offense “ ‘punishable either by a term in state prison or by
imprisonment in county jail’ ”—commonly referred to as “wobblers”—is a
misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 885; § 17, subd.
(b).) Violations of section 288.2 are wobblers. (§ 288.2, subd. (a)(1).) Section
17, subdivision (b), states in relevant part, “[W]hen a crime is punishable, in
the discretion of the court, either by imprisonment in the state prison or
imprisonment in a county jail ..., it is a misdemeanor for all purposes under
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the following circumstances: [¶] . . . [¶. . . (3) When the court grants probation
to a defendant and at the time of granting probation, or on application of the
defendant or probation officer thereafter, the court declares the offense to be
a misdemeanor.” (§ 17, subd. (b)(3).)
Notably, both before and after the 2021 amendments to section 290,
subdivision (e) of section 17 has expressly addressed the effect that a
misdemeanor designation has on sex offender registration requirements. (§
17, subd. (e); see id., former subd. (e), as added by Stats. 1998, ch. 960, § 1.)
It states, “[N]othing in this section authorizes a judge to relieve a defendant
of the duty to register as a sex offender pursuant to Section 290 if the
defendant is charged with an offense for which registration as a sex offender
is required pursuant to Section 290, and for which the trier of fact has found
the defendant guilty.” (§ 17, subd. (e).)
At least one appellate court has interpreted subdivision (e) of section 17
as precluding a court from relieving a defendant from section 290’s lifetime
registration requirement after the court has reduced the defendant’s section
288.2 felony conviction to a misdemeanor pursuant to section 17, subdivision
(b)(3). In People v. Kennedy (2011) 194 Cal.App.4th 1484 (Kennedy), the
defendant was charged with and pleaded no contest to attempted distributing
or exhibiting harmful matter to a minor by the Internet in violation of
sections 288.2 and 664. (Id. at p. 1488.) A couple of years later, the court
granted the defendant’s motion to reduce the section 288.2 offense from a
felony to a misdemeanor pursuant to section 17, subdivision (b)(3). (Ibid.)
The defendant then moved for an order terminating his sex offender
registration requirement. (Id. at pp. 1488–1489.) The court denied his
motion, and he appealed. (Id. at p. 1487.)
6
In construing sections 17 and 290, the Sixth District first noted
California Supreme Court authority holding that section 290’s registration
requirement “ ‘ “automatically applies to the enumerated offenses,” ’ ” and
that “ ‘[r]elief under section 17, subd. (b), is not retroactive’ ” in operation.
(Kennedy, supra, 194 Cal.App.4th at p. 1491, collecting cases.) “ ‘If ultimately
a misdemeanor sentence is imposed, the offense is a misdemeanor from that
point on, but not retroactively . . . .’ ” (Ibid.)
With that authority in mind, the Kennedy court found that it was
“undisputed…that defendant was ‘charged with an offense for which
registration as a sex offender is required pursuant to Section 290, and for
which the trier of fact has found the defendant guilty.’ (§ 17, subd. (e).)
Defendant was charged with a felony violation of sections 664 and 288.2,
subdivision (b), and he pleaded no contest to the charge as a felony.”
(Kennedy, supra, 194 Cal.App.4th at p. 1491.) Therefore, the court reasoned,
“Section 290 automatically applied to the felony offense and, upon his
conviction therefor, imposed on defendant a lifelong obligation to register as a
sex offender. . . . When the trial court later granted defendant’s 2010 motion to
reduce the offense from a felony to a misdemeanor, the offense became a
misdemeanor from that point on, not retroactively. [Citation.] Therefore,
notwithstanding the authority of the trial court to subsequently reduce
defendant’s conviction from a felony to a misdemeanor pursuant to section 17,
subdivision (b)(3), the trial court was not ‘authorize[d] . . . to relieve . . .
defendant of the duty to register as a sex offender pursuant to Section 290.’ (§
17, subd. (e).)” (Ibid., italics added.)
The Kennedy court further concluded, “[e]ven if we were to consider the
statutory language of section 17, subdivision (e) to be ambiguous in light of
the language of subdivision (b), a review of the legislative history supports
7
our analysis here. When section 17 was amended in 1998 to add in part
subdivision (e), an analysis of the underlying assembly bill by the Assembly
Committee on Public Safety stated that the bill ‘[p]recludes the court in
reducing a felony to a misdemeanor from relieving a sex offender of his or her
duty to register pursuant to Penal Code Section 290.’ [Citation.] Thus, our
construction promotes rather than defeats the general purpose of the
statute.” (Kennedy, supra, 194 Cal.App.4th at p. 1492.)
C. Analysis
Manzoor appears to agree that subdivision (e) of section 17 did not
relieve him of the obligation to register at the time the court reduced his
felony conviction to a misdemeanor. He nevertheless contends that when “a
court declares an offense to be a misdemeanor [pursuant to section 17], it
becomes a misdemeanor for all purposes,” and that he is “entitled to relief
under the amended [section 290].” He reasons, “In its recent
amendments, . . . the legislature has [] declared that misdemeanor 288.2 is
not a registerable offense,” and “[n]othing in 17(b) prevents one who now
stands convicted of a misdemeanor from pursuing relief under the provisions
of the statute.” After reviewing sections 17 and 290 de novo to ascertain the
Legislature’s intent, we disagree with Manzoor’s reading. (See City of
Brentwood v. Central Valley Regional Water Quality Control Bd. (2004) 123
Cal.App.4th 714, 722 [standard of review for issues of statutory
construction].)
Based on the plain language of section 17, subdivision (e), we agree
with Kennedy that the reduction of a defendant’s felony violation of section
288.2 to a misdemeanor pursuant to section 17, subdivision (b) does not affect
the defendant’s lifetime duty to register as a sex offender under section 290.
(See MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134
8
Cal.App.4th 1076, 1082 [“The Legislature’s chosen language is the most
reliable indicator of its intent”].) Subdivision (e) of section 17 makes clear
that all that matters for purposes of a defendant’s duty to register as a sex
offender is the offense with which he or she was “charged” and “found guilty
of by the trier of fact.” (§ 17, subd. (e).) If it is “an offense for which
registration as a sex offender is required pursuant to Section 290,”
subdivision (e) of section 17 expressly states that a trial court is not
authorized to relieve the defendant from the registration requirements, even
if the court has reduced the conviction to a misdemeanor pursuant to
subdivision (b) of section 17. (Id., subd. (e).)
The Legislature amended section 17 several years after Kennedy was
decided in 2011, but it did not substantively alter those provisions of the
statute construed in Kennedy. (Stats. 2022, ch. 734, § 2; § 17, subd. (e).) It
also did not include any language in the 2021 amendments to section 290
indicating an intent to establish an exception to subdivision (e) of section 17.
(§ 290.) “ ‘[W]hen the Legislature amends a statute without altering portions
of the provision that have previously been judicially construed, the
Legislature is presumed to have been aware of and to have acquiesced in the
previous judicial construction.’ ” (City and County of San Francisco v.
Strahlendorf (1992) 7 Cal.App.4th 1911, 1915.)
Applying subdivision (e) of section 17 here, we conclude that the trial
court did not err in finding that Manzoor was subject to lifetime registration
under the current version of section 290. Manzoor was charged with and
pleaded guilty to a felony attempted violation of section 288.2. Both the prior
version and the current version of section 290 provide that a defendant
convicted of a felony violation of section 288.2 is subject to lifetime sex
offender registration. (§ 290, subds. (c)(1), (d)(3)(C)(x); see id., former subd.
9
(c), as amended by Stats. 2018, ch. 423, § 52.) The trial court’s reduction of
Manzoor’s felony conviction to a misdemeanor pursuant to section 17,
subdivision (b)(3) did not eliminate his lifetime obligation to register because
he was charged with and found guilty of “an offense for which registration as
a sex offender is required pursuant to Section 290.” (§ 17, subd. (e).)
Subdivision (e) of section 17 therefore precluded the trial court from relieving
Manzoor of his lifetime duty to register.
Manzoor presents no basis for departing from this conclusion. He
argues that the phrase “a misdemeanor for all purposes” as used in section
17, subdivision (b) has been “repeatedly interpreted to be literally, ‘for all
purposes.’ ” However, our high court in People v. Park (2013) 56 Cal.4th 782
explained that “[t]he provisions of section 17(b) are not necessarily
conclusive, . . . and the Legislature sometimes has explicitly made clear its
intent to treat a wobbler as a felony for specified purposes notwithstanding a
court’s exercise of discretion to reduce the offense to a misdemeanor.” (Id. at
p. 794.) “[W]e discern a long-held, uniform understanding that when a
wobbler is reduced to a misdemeanor in accordance with the statutory
procedures, the offense thereafter is deemed a ‘misdemeanor for all purposes,’
except when the Legislature has specifically directed otherwise.” (Id. at p.
795.)
As we have already indicated, the Legislature has “specifically directed
otherwise” for sex offender registration requirements by enacting subdivision
(e) of section 17. (See People v. Park, supra, 56 Cal.4th at p. 795; see also
Kennedy, supra, 194 Cal.App.4th at p. 1492 [“notwithstanding the authority
of the trial court to subsequently reduce defendant’s conviction from a felony
to a misdemeanor pursuant to section 17, subdivision (b)(3), the trial court
was not ‘authorize[d] . . . to relieve . . . defendant of the duty to register as a
10
sex offender pursuant to Section 290’ ”].) The cases Manzoor relies on as
support for his argument are distinguishable because they do not involve a
clear legislative exception to the requirement that an offense designated a
misdemeanor under section 17 be considered a misdemeanor “for all
purposes.” (§ 17, subd. (b); see, e.g., People v. Moreno (2014) 231 Cal.App.4th
934, 941, italics added [“A court’s designation of an offense as a misdemeanor
under section 17 is controlling ‘for all purposes’ thereafter, unless the
Legislature has indicated a clear intention to the contrary. . . . The
Legislature has not given any such contrary indication” regarding eligibility
for a certificate of rehabilitation and pardon].)
Manzoor also asserts for the first time in his reply brief that a guilty
plea is not the same as being “found guilty by the trier of fact”, as that phrase
is used in subdivision (e) of section 17, the implication being that subdivision
(e) does not apply in this case to bar the court from relieving him of his
lifetime duty to register under section 290 because his section 288.2 felony
conviction was the result of a guilty plea. It is well-established, however,
that “[a] guilty plea is the ‘legal equivalent’ of a ‘verdict’. . .and is
‘tantamount’ to a ‘finding.’ ” (People v. Statum (2002) 28 Cal.4th 682, 688, fn.
2; see People v. Valladoli (1996) 13 Cal.4th 590, 601 [“A guilty plea is, for
most purposes, the legal equivalent of a verdict of guilty reached by a jury”].)
Accordingly, the Kennedy court found that the defendant, who had pleaded no
contest to a felony violation of sections 664 and 288.2, was “ ‘charged with an
offense . . . for which the trier of fact has found the defendant guilty.’ ”
(Kennedy, supra, 194 Cal.App.4th at p. 1491.)
Read together, sections 17 and 290 support a conclusion that a person
is “found . . . guilty” within the meaning of subdivision (e) of section 17 when
he or she has pleaded guilty. (See Mason v. Retirement Board (2003) 111
11
Cal.App.4th 1221, 1229 [“[W]e must ‘ “construe every statute with reference
to the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness” ’ ”].) Section 290 requires a defendant
to register as a sex offender whenever he or she has been “convicted” of a
registerable offense. (§ 290, subd. (c)(1).) As Kennedy recognized, California
Supreme Court authority holds that section 290’s registration requirements
apply “ ‘ “automatically” ’ ” to a defendant “ ‘ “convicted” ’ ” of any of the
enumerated offenses. (Kennedy, supra, 194 Cal.App.4th at p. 1491, citing
Wright v. Superior Court, supra, 15 Cal.4th at p. 527.) A person is generally
“convicted” when he or she is “adjudicated guilty,” and this may occur either
through a verdict or through a plea. (People v. Mendoza (2003) 106
Cal.App.4th 1030, 1034.) Our high court has further held that the reduction
of a misdemeanor to a felony under section 17 does not apply retroactively.
(People v. Feyrer (2010) 48 Cal.4th 426, 439, citing People v. Banks (1959) 53
Cal.2d 370, 387–388, superseded by statute on another ground as stated in
People v. Park, supra, 56 Cal.4th at pp. 791–793.) Thus, in enacting
subdivision (e) of section 17, it appears that the Legislature intended to
clarify that whenever a defendant has been adjudicated guilty of a
registerable felony—whether through a verdict or through a plea—section
290 automatically imposes on the defendant a mandatory duty to register
that cannot be avoided through the subsequent reduction of the felony
conviction to a misdemeanor pursuant to section 17, subdivision (b).
Even if this statutory language is ambiguous, an interpretation that
section 17, subdivision (e) applies to all cases where the defendant has been
adjudicated guilty of an offense for which he or she is required to register
under section 290 “promotes rather than defeats the general purpose of the
statute” to “ ‘[p]reclude[] the court in reducing a felony to a misdemeanor
12
from relieving a sex offender of his or her duty to register pursuant to Penal
Code Section 290.’ ” (Kennedy, supra, 194 Cal.App.4th at p. 1492.) To hold
otherwise would draw an arbitrary line between defendants who have pled
guilty or no contest and defendants found guilty by a jury, which is an absurd
result. (See People v. Jenkins (1995) 10 Cal.4th 234, 246 [“We must select the
construction that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the general
purpose of the statute, and avoid an interpretation that would lead to absurd
consequences”].)
In sum, we are not persuaded by Manzoor’s argument that the
amendments to section 290 reflect a legislative intent to relieve a defendant
whose felony conviction of section 288.2 has been reduced to a misdemeanor
pursuant to section 17 from the lifetime obligation to register. Under both
the current version and the pre-2021 version of section 290, a felony
conviction of section 288.2 requires lifetime registration, and misdemeanor
violations of section 288.2 are not mentioned. (§ 290, subds. (c)(1),
(d)(3)(C)(x); see id., former subd. (c), as amended by Stats. 2018, ch. 423, §
52.) And subdivision (e) of section 17 continues, both before and after the
amendments to section 290, to prohibit a court from “reliev[ing] a defendant
of the duty to register as a sex offender pursuant to Section 290” where the
“defendant is ‘charged with an offense for which registration as a sex offender
is required pursuant to Section 290, and for which the trier of fact has found
the defendant guilty.’ ” (Kennedy, supra, 194 Cal.App.4th at pp. 1491–1492.)
Because Manzoor was adjudicated guilty of an offense for which lifetime
registration as a sex offender is required, the trial court did not err in
denying his petition for relief from the registration requirements.
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III. DISPOSITION
The order denying Manzoor’s petition for relief from the sex offender
registration requirements is affirmed.
14
BOWEN, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A164739P
Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
15
Superior Court of Alameda County
The Honorable Dennis L. McLaughlin
Counsel:
Innocence Legal Team, William P. Daley for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M.
Provenzano, Supervising Deputy Attorney General and Melissa A. Meth,
Deputy Attorney General for Plaintiff and Respondent.
16