Doe

The federal Ninth Circuit Court of Appeals, which is considering a claim by plaintiff that his plea agreement would be violated by requiring him to comply with postconviction amendments to California’s Sex Offender Registration Act, Penal Code section 290 et seq., 1 requested an answer to the following question: “Whether, under California law, the default *66 rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law.” We accepted the request and slightly rephrased the question as: “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?” We respond that the general rule in California is that the plea agreement will be “ ‘deemed to incorporate and contemplate not only the existing law but the resérve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .’ ” (People v. Gipson (2004) 117…

The United States Circuit Court of Appeals for the Ninth Circuit has asked this court to answer a question of California law. As rephrased by this court, the question is this: “Under California law of contract interpretation^] as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”

Today, this court’s majority holds that “requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement . . . .” (Maj. opn., ante, at p. 73.) This broad language means that new changes in the law must be followed even though they were not contemplated by the parties when they negotiated the terms of their agreement, which is a form of contract. I do not share the majority’s view. I would hold that only if the new legislation does not materially affect the plea agreement’s terms can the parties be required to comply with the new law. Put differently, a legislative change in the applicable law binds the parties unless the new law so alters the plea agreement that, had the parties known of it at…

BACKGROUND

In 1991, plaintiff, who is proceeding under the pseudonym “John Doe,” was charged with six counts of lewd and lascivious acts upon a child under the age of 14 (former § 288, subd. (a)), an offense subject to the registration requirements of former section 290 (as amended by Stats. 1989, ch. 1407, § 4, pp. 6191-6195). In August of that year, Doe entered into a plea agreement under which he agreed to plead nolo contendere to a single count in exchange for the dismissal of the others. The written change of plea form, which Doe signed, recited that the maximum penalties for Doe‟s conviction would be probation, participation in a work furlough program, fines, testing as required by former section 290.2, and registration as a sex offender under section 290. The superior court accepted the plea, entered judgment convicting Doe of a single count of committing a lewd and lascivious act on a child under the age of 14, and sentenced him in accordance with the plea agreement. Doe registered as required by section 290. The statute at that time required persons convicted of specified sex offenses, including former section 288, subdivision (a), to register and to provide their…