PEOPLE v. ZAIDI

Filed 2/27/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

The issue before us is the necessary content of a change of plea advisement when a lifetime obligation to register as a sex offender may be imposed upon a defendant under Penal Code section 290, subdivision (a)(2)(E).

Following a negotiated plea, defendant Shamin Zaidi pled no contest to one count of misdemeanor lewd conduct in a public place (Pen. Code,  647, subd. (a)).^[1] He was sentenced to three years supervised probation and required to register as a sex offender pursuant to section 290. We granted his petition to transfer his case from the appellate department of the superior court to the Court of Appeal (Cal. Rules of Court, rule 64(c)(1)(B)), after the appellate department affirmed the denial of his petition to withdraw his plea. He contends he should be allowed to withdraw his plea because he was not informed that registration is a lifetime requirement.

BACKGROUND

Complaint

The original complaint charged defendant with three misdemeanors: sexual battery

( 243.4, subd. (e)(1); counts 1 & 2) and annoying or molesting a child under 18 ( 647.6, subd. (a); count 3). Conviction of these offenses mandates registration as a sex offender ( 290, subd. (a)(2)(A)). Defendant entered a plea of not guilty to all counts.

Plea Negotiations

Pursuant to a negotiated plea, the complaint was amended to add count 4, misdemeanor lewd conduct in a public place ( 647, subd. (a)). Conviction of this offense gives a court discretion to impose the registration requirement. ( 290, subd. (a)(2)(E); People v. Castellanos (1999) 21 Cal.4th 785, 790, fn. 2.).^[2] Defendant agreed to plead no contest to count 4, and the People agreed to dismiss the original three counts.

Defendant signed a waiver of rights for entry of plea of guilty or nolo contendere (no contest). The waiver form contains the preprinted statement: My decision to plead guilty or nolo contendere has been made freely and voluntarily without threat or fear to me or anyone closely related to or associated with me. There have been no promises to me of rewards, immunity, probation, or anything else to induce my plea of guilty or nolo contendere except[:] This statement is followed by the handwritten phrases No Contest Plea[;] PC 647(a)--Molesting a Minor (Hands)[;] Referral to Probation Dept.

Immediately underneath this handwritten entry is another preprinted statement: I understand that the maximum penalty which may be imposed is as indicated below: Immediately below this statement are two side-by-side boxes. The box on the left is entitled Count Number and Charge. Handwritten therein is PC 647(a).

The box on the right is entitled minimum/maximum penalty. Maximum has been circled by hand. Preprinted under this title is the statement: No Probation: not less than 5 nor more than 90 days in County Jail or a fine of not less than $145 nor more than $1,000 fine (plus assessments) or both fine and imprisonment. Probation Granted: not less than 5 nor more than 90 days in County Jail or a fine of not less than $145 nor more than $1,000 fine (plus assessments) or both fine and imprisonment and participation in and completion of at minimum the educational component of an alcohol and drug education program. Handwritten thereunder is 6 months county jail; $1000 fine.

May 9, 2005 Change of Plea Hearing

At the hearing on his change of plea from not guilty to no contest, defendant affirmed that he had read, understood, and signed the waiver of rights and plea form for a no contest plea to count 4. During further examination the court asked:

THE COURT: Do you understand the maximum penalty the Court can impose under the law is six months in the county jail, a fine of 1,000 plus state assessment or both?

The Defendant: Yes.

The Court: Do you understand that the Court could also order that you register as a sexual offender pursuant to Penal Code section 290 if the Probation Department determines that is appropriate?

The Defendant: Yes.

THE COURT: Have any promises or threats been made to you to get you to enter your plea other than that the remaining counts would be dismissed and that this matter would be referred to the Probation Department for report and recommendation?

THE DEFENDANT: No.

THE COURT: You discussed the matter with [] your attorney?

THE DEFENDANT: Yes.

Defense counsel acknowledged there was a factual basis for the plea. The court accepted defendants no contest plea and referred the matter to the probation department for a presentencing report and recommendation.

Presentence Report

The factual account of the offense in the presentence report is based on the police reports. It states that the victims father arranged for defendant, a long-time family friend whom the 16-year-old victim called grandfather, to stay with her and her two younger sisters while their parents were out of town. The victim fell asleep watching television and awoke because defendant was removing her socks. He then placed his hands under her clothing and moved them over her breasts and pubic area.

The presentence report noted that throughout his interview with the probation officer, defendant denied touching the victim, showed no remorse, and accepted no responsibility for his actions.

The probation departments investigation revealed that defendant had no prior criminal history. It recommended that he be placed on [s]upervised probation for three (3) years on the following conditions: The enumerated conditions included [s]erve 90 days in county jail, [p]ay various fines and restitution, and register as a sex offender pursuant to section 290 of the Penal Code and maintain yearly registration requirements as required by law. Specific to the last recommendation, it stated, that, due to the nature of the touching, it is felt that the defendant should register as a sex offender to afford the community some additional protection from him.

June 24, 2005 Sentencing

The court announced at the outset of the sentencing hearing that it had read and considered the presentence report and recommendation. The prosecutor began his argument in favor of registration by stating: As we discussed in chambers, the court has looked at the probation report which includes a number of factors, including . . . sexual registration. He concluded his argument by asking the court to follow the recommendation to impose the 90-day jail sentence, to impose sexual registration, and to impose sexual counseling.

Defense counsel argued against registration, asserting that defendants age, standing in his community, and absence of criminal record pointed to the offense being an aberrant incident on defendants part. Therefore, defense counsel continued, registration was unnecessary because defendant was unlikely to sexually reoffend, and nothing about the case would warrant the conclusion that sexual registration is appropriate.

In rebuttal, the prosecutor argued that, because defendant had violated a position of trust he had with the victim and her family, it was appropriate that the community know that he was a dangerous person who has been convicted of a sexual crime.

Neither the presentence report nor the arguments of counsel mentioned that registration as a sex offender is a lifetime requirement.

The court accepted the recommendation of the probation department because the offense was close to being a felony, and defendant violated a trust and showed no remorse. [T]herefore, I believe that the recommendation of the probation department for the 90-day jail sentence and the recommendation for registration pursuant to Penal Code section 290 as a sexual registrant are appropriate and I will impose those conditions. It then stated:

THE COURT: . . . Imposition of sentence is ordered suspended.

And, [defendant], you are placed upon three years of supervised probation on the following terms and conditions: That you obey all laws; that you serve 90 days in the county jail with credit for time served of one actual day.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[Y]ou will have to pay [fines and restitution of designated amounts] through the probation department as directed.

. . . During the period of probation, you must submit to search and seizure of your person, place of residence, area under your control or vehicle at any time day or night, with or without a search warrant, without regard to reasonable or probable cause, and with or without your consent as directed by any probation officer or peace officer.

You shall register as a sex offender pursuant to section 290 of the Penal Code and maintain yearly registration requirements as required by law.

You are not to associate with minors under the age of 18 years, other than your grandchildren, nor frequent places where minors congregate unless in the presence of a responsible adult approved by the probation officer.

You are not to reside in a house where a child resides, except the court will allow you to reside where your son and his children reside.

You must participate in and complete any education program as mandated by Penal Code section 1001.10.

You are to stay away from and not have any contact with the victim. And such order will be issued pursuant to Penal Code section 136.2.

You must participate in and complete a sexual offender treatment program as directed by the probation officer. You must participate in counseling or treatment as directed by the probation department.

[Defendant], do you understand and agree to each of the terms and conditions of probation I have stated?

THE DEFENDANT: Yes.

The Court: You will get everything in writing at the clerks office.

On the day of sentencing defendant signed a printed Conditions of Probation form acknowledging he RECEIVED A COPY, read, understand[s], and accept[s] the above terms and conditions of probation. The form states he will be on supervised probation for 3 years. Fourteen of the numerous preprinted conditions on the form are checked, e.g., 90 days jail confinement, Obey all laws, submit to warrantless arrest, restitution to be determined by probation department. Registration as a sex offender is not among the enumerated preprinted conditions. However, a handwritten notation alongside the forms preprinted conditions states: Register as a sex offender per sec PC 290 maintain yearly Reg. Requirements.

Motion to Withdraw Plea

On August 30, 2005, defendant, represented by new counsel, moved to withdraw his plea. He argued his plea was not knowing and intelligent, insofar as he was not advised of its consequences because he was not informed that registration was a lifetime requirement.

In support of his motion defendant declared: He has maintained his innocence since the accusations were first made against him. On May 9, 2005, the date set for trial, he waited in the courtroom while his then-attorney and the prosecutor spoke with the judge in chambers. His attorney emerged from chambers to say that he had reached an agreement with the prosecutor, whereby the prosecutor would amend the complaint to charge him instead with disorderly conduct and allow him to enter a plea of no contest. His attorney had initially informed him that conviction of any of the original charges would require him to register as a sex offender, but he was told that conviction of disorderly conduct would not require such registration. He had never heard of sex registration until the accusations against him. He understood that a plea of no contest allowed him to maintain his claim that he never sexually touched the complaining witness but that by not contesting the charge he would be accepting the punishment as if he had pled or been found guilty of the charge. When he agreed to enter a plea of no contest, he read and signed a plea form filled out by his lawyer. The form nowhere stated that, if applicable, he would be required to register as a sex offender, although it noted possible immigration consequences and other possible consequences inapplicable to his case. He pled no contest in order to maintain his innocence without going through the expense, anxiety and uncertainty of trial. When he entered his plea, he did not fully understand or appreciate what the judge was saying because he was nervous; he was completely unfamiliar with the proceedings; English is not his first language; and he was concentrating on what his lawyer was telling him to say by whispering in his ear. He understood that three years was the longest period he would be on probation and that if any conditions of probation were imposed, they would be only for the term of probation. When, at sentencing, the court imposed registration as a term of probation, he understood the condition would last until he finished his probationary term. He was not made aware until a later time that registration was a lifetime requirement. Had he been aware that he would have been subject to the lifetime requirement, he would not have changed his plea to no contest but would have insisted on going to trial.

The trial court found that defendant failed to show good cause to withdraw his plea and denied his motion. It noted that in January and February 2005 pretrial conferences the attorneys and the court discussed referring defendant to the probation department and possible registration. It also observed that when defendants plea was taken on May 9, defendant stated that he understood the court could order him to register as a sex offender pursuant to section 290 if the probation department deemed it appropriate; defendant stated that he had discussed the matter with his attorney; and defendant did not ask any questions about registration either when he entered his plea or at sentencing.

Appeal to Appellate Division

Defendant appealed the denial of his motion to withdraw his plea to the appellate division of the superior court. The appellate division affirmed the denial. Its opinion observes that defendant was advised when his plea was taken that registration as a sex offender could be imposed, and that at sentencing he accepted a condition of registration that was imposed upon [him]. The appellate division also concluded that, even if the trial court erred in failing to advise on one of the direct consequence of his plea, defendant had not shown prejudice from the failure, i.e., that he would not have entered the plea had the court properly advised him. Despite [his] claim that he would not have entered his plea of no contest to the reduced charge if he were properly advised there is no evidence in the record to justify that claim.

The appellate division based its conclusion on two facts: (1) defendant gained an opportunity by his plea not to have to register because the dismissed counts mandated registration, and the offense to which he pled did not, and (2) he did not protest imposition of registration at the time of sentencing.

DISCUSSION

I. Duty to Advise that Registration is a Lifetime Obligation

Defendant asserts that under the rule enunciated in Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell), the trial court was required to inform him that registration is a lifetime requirement.

Under long and well-established principles, a trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. (Boykin v. Alabama (1969) 395 U.S. 238; In re Moser (1993) 6 Cal.4th 342, 351; Bunnell, supra, 13 Cal.3d at p. 605; Mills v. Municipal Court (1973) 10 Cal.3d 288; In re Tahl (1969) 1 Cal.3d 122.) This obligation includes the duty to advise of the requirement to register as a sex offender upon conviction of a statutorily enumerated offense. (In re Birch (1973) 10 Cal.3d 314, 321 (Birch).) Failure to advise of the sex registration requirement is error. (People v. McClellan (1993) 6 Cal.4th 367, 376.)

The issue before us is the requisite content of the advisement regarding sex registration as a direct consequence of a plea. Does a trial court satisfy its obligation by informing the defendant simply that he or she must register as a sex offender pursuant to section 290, or must it specify that the registration obligation is lifelong? We conclude the court must advise that the registration requirement will be for the duration of the defendants life.

Our analysis begins with Birch, supra, 10 Cal.3d 314. The Birch defendant was charged with section 647, subdivision (a), lewd conduct in a public place, after two police officers observed him urinating at 1:30 a.m. while he stood next to his car and faced a retaining wall. (Birch, at p. 316.) Unrepresented by counsel, he pled guilty without being told by the court that as a result of his plea he would be ordered to register as a sex offender pursuant to state law. (Id., at pp. 317, 318.)^[3]

Birch granted the defendants petition for habeas corpus because (1) the record failed to demonstrate explicitly that he was informed of his right to counsel, and (2) it concluded that in the instant case, in view of the unusual and onerous nature of the sex registration requirement that follows inexorably from a conviction under section 647, subdivision (a), the trial courts duty surely included an obligation to advise petitioner of this sanction prior to accepting his guilty plea. (Birch, supra, 10 Cal.3d at p. 321, fn. omitted.) It elaborated:

TO BE CONTINUED AS PART II.

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^[1]All further section references are to the Penal Code.

^[2]Section 290, subdivision (a)(1)(A) states, in pertinent part: Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides. Such a person who has more than one residence address is required to register in each jurisdiction in which he or she resides. ( 290, subd. (a)(1)(B).) The person must reregister annually and with every change of address. ( 290, subd. (a)(1)(D).)

Section 290, subdivision (a)(2)(A) enumerates the offenses for which registration is mandatory.

Section 290, subdivision (a)(2)(E) authorizes courts to impose the registration requirement for offenses not specifically enumerated if the court finds the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.

Any person required to register pursuant to section 290 based on a misdemeanor conviction who willfully violates any requirement of section 290 is guilty of a misdemeanor punishable by imprisonment in county jail up to one year. ( 290, subd. (g)(1).)

^[3]When defendant Birch was convicted, section 290 mandated registration as a sex offender upon conviction of section 647, subdivision (a). Section 290 was subsequently amended to delete the mandatory requirement for conviction of this offense. (Castellanos, supra, 21 Cal.4th at p. 797, fn. 8.)