THE PEOPLE, Plaintiff and Respondent, v. STEVEN FOSTER, Defendant and Appellant, 101 Cal. App. 4th 247

Opinion McINTYRE, J. Steven Foster appeals from a judgment sentencing him to 30 years imprisonment and to undergo hormone suppression treatment upon parole under Penal Code

section 645 (all statutory references are to the Penal Code). Foster contends the portion of the judgment imposing hormone suppression treatment must be reversed because this sentence is grossly disproportionate and violates state and federal constitutional prohibitions against cruel and unusual punishment. Because appellate review of this claim is precluded under the terms of Foster’s negotiated plea agreement, we affirm the judgment.

Factual and Procedural Background Foster sexually abused the 12-year-old daughter of his girlfriend over a six-month period, and was charged with 32 counts of forcible lewd acts upon a child, five counts of aggravated sexual assault against a child, two counts of assault with a deadly weapon likely to cause great bodily injury, and two counts of felony child abuse.

On June 6, 2000, pursuant to a written plea agreement, Foster agreed to plead guilty to five counts of forcible lewd acts upon a child in exchange for a stipulated prison term of 30 years and the dismissal of the remaining counts—five of which carried sentences of 15 years to life.

Foster acknowledged in the plea agreement that his attorney had explained the consequences of his plea, which expressly included “Possible/Mandatory hormone suppression treatment.” He also initialed a waiver of appeal rights that stated: “I give up my right to appeal from the judgment in this case based on . . . any sentence within the terms herein specified.” The agreement also contains: (1) a statement signed by Foster’s attorney affirming that he read and explained the contents of the plea agreement to Foster, discussed the charges and all possible defenses with him, as well as the consequences of the plea, and personally observed Foster read and initial each item to “acknowledge his[] understanding and waivers,” and (2) the judge’s signature and his findings that Foster “understands and voluntarily and intelligently waives his[] constitutional rights; the defendant’s plea and admissions are freely and voluntarily made; [and] the defendant understands the nature of the charges and the consequences of the pleas and admissions.” In addition, at the hearing on the change of plea, Foster affirmed he had reviewed the plea agreement with his attorney, understood he would be giving up his constitutional rights, and also understood his plea “would subject [him] to registration and to mandatory chemical treatment upon release on parole.” On August 15, 2000, the trial court exercised its discretion under

section 645, subdivision (

a) and sentenced Foster to undergo hormone suppression treatment upon parole in addition to the other punishment of 30 years’ imprisonment. In doing so, the court noted: “Mr. Foster was in a position of trust. The acts were substantial.

They are cruel and they are predatory in nature, and I do believe that this type of treatment is in the interest of justice under these circumstances.” Discussion Foster agreed to plead guilty to specified charges in exchange for a particular sentence and the dismissal of other charges, acknowledged he understood the consequences of his plea, including “Possible/Mandatory hormone suppression treatment,” and agreed to waive the right to appeal “any sentence within the terms herein specified.” Under these circumstances, he is precluded from appealing the portion of his sentence imposing hormone suppression treatment upon parole. (See People v.

Panizzon (1996) 13 Cal.4th 68, 79-89 [51 Cal.Rptr.2d 851, 913 P.2d 1061] [defendant who enters a negotiated plea agreement specifying the sentence and containing a waiver of the right to appeal the sentence cannot appeal on the ground that the sentence imposed is disproportionate and thus cruel and unusual]; see also People v.

Nguyen (1993) 13 Cal.App.4th 114, 120-122 [16 Cal.Rptr.2d 490].) In other words, having bargained for a 30-year sentence that included the possible imposition of hormone suppression treatment in exchange for the dismissal of myriad serious felony charges, Foster cannot then maintain on appeal that such treatment cannot be imposed because it would violate prohibitions against cruel and unusual punishment. To do so would be to have his cake and eat it too.

Foster contends his cruel and unusual punishment claim is cognizable on appeal because he never waived his right to appellate review of the trial court’s exercise of discretion under

section 645, subdivision (a). This mischaracterizes his position in this case, which is that the trial court could not exercise its discretion to impose hormone suppression treatment upon Foster’s parole because such is cruel and unusual. The time to have taken this position, however, was before entering the plea agreement that expressly included such punishment as a possible consequence and contained a waiver of the right to appeal any sentence within its terms.

Moreover, given the validly executed plea agreement and waiver form and the acknowledgments contained therein, Foster’s waiver of the right to appeal is enforceable even though the court did not specifically admonish Foster that he would be giving up his appellate rights. (People v.

Panizzon, supra, 13 Cal.4th at pp. 83-84.) Foster also contends his claim is cognizable on appeal because the court’s imposition of hormone suppression treatment upon parole, which was ordered more than a month after the 30-year prison term was imposed, (1) was a future error outside his contemplation and knowledge at the time his waiver was made, and (2) constitutes an unauthorized sentence that can be corrected on appeal because it is disproportionate and cruel and unusual. We disagree on both counts.

First, although the court sentenced Foster to undergo hormone suppression treatment upon parole after Foster entered into the plea agreement, this component of the sentence was specifically listed as a possible consequence of the plea and the court admonished Foster of such. Thus, it “cannot fairly be characterized as falling outside of [Foster’s] contemplation and knowledge when the waiver was made.” (People v.

Panizzon, supra, 13 Cal.4th at p. 86.) Second, the Supreme Court in Panizzon rejected the defendant’s contention that his disproportionate, cruel and unusual punishment claim was cognizable under an unauthorized sentence theory, because the sentence imposed was negotiated as part of the plea agreement and did not exceed the statutory maximum. (Id. at p. 88.) Similarly, the possible imposition of hormone suppression treatment upon parole was part of Foster’s negotiated plea agreement and did not exceed or run afoul of

section 645. Thus, it is not an unauthorized sentence. The dissent maintains that such sentence was unauthorized because

section 645, subdivision (

a) does not authorize the court to impose hormone suppression treatment upon parole at sentencing; rather, it authorizes such treatment only when the Board of Prison Terms, in establishing conditions of parole shortly before a prisoner’s release, deems it to be appropriate and then petitions the court for approval of the imposition of such condition. The statute does not provide for this procedure, however. The dissent proceeds on the premise that

section 645, subdivision (

a) is ambiguous, which is not the case. Indeed, the statute makes clear that hormone suppression treatment upon parole may be imposed by the court in its discretion “in addition to any other punishment prescribed for that offense.” (Ibid., italics added.) Such treatment is not a mere condition of parole, the imposition of which is committed to the discretion of the Board of Prison Terms in the first instance. Under the terms of

section 645, subdivision (a), such treatment is punishment to be imposed in the trial court’s discretion as part of a defendant’s sentence at the time of sentencing. Similarly, where the defendant has incurred a second conviction of the enumerated sex offenses, subdivision (

b) of

section 645 provides that he shall undergo hormone suppression treatment upon parole “in addition to any other punishment prescribed for that offense” (italics added)—i.e., as with subdivision (a), such treatment is punishment imposed as part of the defendant’s sentence. In contrast,

section 3053.5, cited by the dissent, specifically refers to requiring abstinence from alcohol for certain

section 290 sex offenders as a “condition of parole,” not as punishment. In sum, under the plain meaning of both subdivisions (

a) and (

b) of

section 645, hormone suppression treatment is not a mere condition of parole; it is a form of punishment, the imposition of which is part of the defendant’s sentence. Finally, although Foster states in his opening brief that the issue presented in his appeal does not challenge the validity of the plea, but only the sentence, and thus, a certificate of probable cause is not required, he is incorrect.

Because Foster seeks to challenge the constitutionality of a portion of his sentence that was clearly contemplated in his plea agreement, it was incumbent upon him to seek and obtain a probable cause certificate. (People v. Panizzon, supra, 13 Cal.4th at pp. 77-79.) However, the issue is moot, since we dispose of the appeal on the ground of waiver. (Id. at p. 79.) Disposition The judgment is affirmed. McConnell, J., concurred.