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

STORY CONTINUED FROM PART I..

Individuals convicted of one of the enumerated crimes [in section 290] have been deemed by the Legislature to have a propensity to commit such antisocial crimes in the future and thus are the subject of continual [lifetime] police surveillance. Whenever any sex crime occurs in his area, the registrant may very well be subjected to investigation. Although the stigma of a short jail sentence should eventually fade, the ignominious badge carried by the convicted sex offender can remain for a lifetime. (Birch, supra, 10 Cal.3d at p. 322.)

We read this language as strongly implying that the courts duty to advise on registration does not exist merely because there is a statutory requirement to register. Rather, the duty exists because the ignominy and the duration of the registration requirement makes it a particularly harsh sanction, and only if a defendant is apprised of the duration can he or she fully appreciate the gravity of the consequence of the plea, so as to make the plea voluntary and intelligent.

Subsequently, Bunnell held that a defendant pleading guilty shall be advised of the direct consequences of conviction such as the permissible range of punishment . . . [and] registration requirements, if any (e.g.,  290 . . .). . . . (Bunnell, supra, 13 Cal.3d at p. 605.) In holding that a court is obligated to advise a defendant of the sex offender registration requirement, McClellan, supra, 6 Cal.4th at page 376 specifically cited the language in Birch that registration is a grave and direct consequence of a plea.

Recently People v. Hofsheier (2006) 37 Cal.4th 1185, 1191-1192 held that a defendant who pled guilty to oral copulation with a 16-year-old girl ( 288a, subd. (b)(1)) was denied equal protection because section 290 mandates sex offender registration for conviction of the offense, whereas the court has discretion to impose the registration requirement when a person is convicted of unlawful sexual intercourse with a minor ( 261.5) under the same circumstances (same age victim, victims willing participation, absence of statutory aggravating factors like force or violence).

Hofsheier acknowledged that while sex offender registration is not considered a form of punishment under the state or federal Constitutions, it nevertheless imposes a substantial and onerous burden on the registrant. (Hofsheier, supra, 37 Cal.4th at p. 1196, citing Castellanos, supra, 21 Cal.4th at p. 796 & Birch, supra, 10 Cal.3d at pp. 321-322.) Significantly, Hofsheier noted that section 290 registration fills a dual purpose of facilitating police surveillance of registrants and notifying the public of the existence and location of a sex offender. (Hofsheier, supra, 37 Cal.4th at p. 1195.) Ubiquitous references in Hofsheier to the duration of the section 290 registration requirement as for life (id., at pp. 1191, 1195, 1201, 1205), or lifetime (id.,at pp. 1196, 1197, 1201, 1202, 1204, 1206, 1207, 1208) underscore the strong implication of Birch that it is the fact of an obligation communicating public disgrace for a lifetime that gives rise to a courts duty to advise defendants of the requirement before it accepts a plea.

We find additional support for our conclusion in case law holding that a restrictive lifelong consequence or obligation is a direct consequence of the plea, and that a court must advise of the lifetime element. For example, a person found guilty by reason of insanity (NGI) is subject to a possible lifetime commitment in state hospital by section 1026.5, subdivision (b)s authorization of repeated two-year commitment extensions. In People v. McIntyre (1989) 209 Cal.App.3d 548 the defendant pled no contest and NGI to assault with a deadly weapon causing great bodily injury. During the hearing the court advised him that the maximum total prison term was seven years. After accepting his pleas, it committed him to a state hospital until his sanity was restored, not to exceed the maximum term he could have been imprisoned. However, he was not advised that, by statute, he could be subject to the commitment extensions. (Id., at p. 551.)

After the defendant completed his seven-year state hospital commitment, the trial court granted the Peoples petition for an extended commitment. (McIntyre, supra, 209 Cal.App.3d at p. 551.) McIntyre reversed the order because the court had failed to advise the defendant when he entered his plea that, as a consequence thereof, he could be committed to a state hospital for life. (Id. at p. 558.) It reached this conclusion by relying, in part, on Birchs requirement that trial courts advise defendants of the lifetime sex-offender registration provisions of section 290. [Citation.] (Id. at p. 555, emphasis added; see also People v. Wetmore (1978) 22 Cal.3d 318, 322, fn. 2, approving practice of advising defendant pleading NGI that successful assertion of plea might result in indefinite commitment to state hospital.)

We also find support for our conclusion by analogy to those direct consequences in which the courts obligation includes a duty to advise on particulars of the consequence. For example, a mandatory term of parole is a direct consequence of a plea. The court is obligated to advise a defendant not simply on the bare fact that he or she will be on parole following completion of a prison term. It is required to advise on the actual length of that parole. (In reMoser (1993) 6 Cal.4th 342, 351-352.)

A restitution fine is another direct consequence. Therefore, before taking any guilty plea a trial court should advise the defendant of the minimum $100 and maximum $10,000 restitution fine. (People v. Walker (1991) 54 Cal.3d 1013, 1022.) In other words, according to Walker, it does not suffice to advise the defendant merely that he or she will have to pay a restitution fine. The defendant must be advised of the dollar range of the fine.

By parity of reasoning, we conclude that an admonition that simply informs the defendant he or she will or may be subject to registration as a sex offender pursuant to section 290 undermines the Bunnell requirement of advising on all direct consequences of a plea. The reference to an abstract statutory reference (you shall register as a sex offender pursuant to Penal Code section 290) does not inform the defendant of registrations most dire element. Registration is not for a finite period, like a jail incarceration or probation; it will remain a requirement for the remainder of the defendants life, with all its attendant shame, ignominy, and potential limitation on employment and housing.^[1] Given the magnitude of the consequence, advising the defendant of the lifetime requirement of registration will not impose an undue burden on trial courts. Any additional burden is outweighed by the benefit of assuring that the defendants waiver of his rights when entering a plea is voluntary and intelligent.

The People argue the trial court was not obligated to advise defendant that registration was a lifetime requirement because registration in his case was a collateral, not a direct, consequence of his plea.

A collateral consequence to a plea is one that does not inexorably follow from the conviction of the offense to which the plea is made. (People v. Arnold (2004) 33 Cal.4th 294, 309, quoting People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.) The People argue registration was a collateral consequence because the crime to which defendant pled, section 647, subdivision (a), does not mandate registration but gives the sentencing court discretion to impose the registration requirement.

The Peoples argumentfails in view of Bunnells articulation of the advisement requirement: In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any . . . and, in appropriate cases the possibility of commitment as a drug addict or mentally disordered sex offender. (Bunnell, supra, 13 Cal.3d at p. 605, emphasis added; see also Walker, supra, 54 Cal.3d at p. 1022: a possible $10,000 restitution fine is a direct consequence of a plea, so court should advise defendant of minimum $100 and maximum $10,000 restitution fine before taking plea.) The fact a court has discretion not to impose the registration requirement for some offenses does not relieve it of the obligation to advise the defendant that registration is a possible consequence. Indeed, the court here did tell defendant at the change of plea hearing that it could order him to register as a sexual offender if the probation department thought it appropriate, albeit failing to say the registration would be for life.

Alternatively, the People contend that if a registration advisement was required, the court was not obligated to specify the lifetime requirement. They argue that by advising him that he could be ordered to register as a sex offender pursuant to Penal Code section 290 if the probation department deemed it appropriate, the court sufficiently alerted him to the possibility of registration with all of the attendant consequences. The People urge that notice of the potential registration did not make his plea any less voluntary because the court did not read the entire statute with its myriad responsibilities and contingencies, e.g., annual registration within five days of the defendants birthday, providing DNA samples, etc.

The People rely on People v. Barella (1999) 20 Cal.4th 261 to support their contention. At issue in Barella was whether the court was required to advise a defendant, on a guilty plea, that the Three Strikes law ( 667, subd. (b)-(i), 1170.12) limits the defendants ability to earn conduct and work credits while incarcerated. (20 Cal.4th at p. 262.) Barella held it did not. To do so would make the trial court responsible for advising defendants of a myriad of contingencies related to eligibility for good-time or work-time credits--an unduly burdensome task and one unnecessary to ensure the voluntariness of a guilty plea. []  Numerous factors inform the decision to release an inmate into law-abiding society, and courts need not inform the defendant of all the contingencies and possibilities that may ensue from a plea of guilty. Nor does the fair and efficient administration of justice require that the trial court inform the defendant of the theoretical minimum portion of a sentence that will have to be served in custody (taking into account potential in-prison conduct or work credits) when he or she pleads guilty to a term whose potential length may be greater; such knowledge, although important to the defendant who pleads guilty, is not required to facilitate a knowing and intelligent decision to plead. [Citation.] (Id. at pp. 271-272.)

Barella is distinguishable. Unlike good-time/work-time credits and eligibility for parole that depend on unknowable events that occur after the defendants incarceration, there is nothing contingent about the lifetime element of registration, nor is it dependent on the registrants postconviction conduct. The legal possibility that a person required to register under section 290 may eventually be relieved of the requirement does not mitigate the onerous quality and burden of the lifetime registration requirement.^[2] The possibility of this relief is comparable to the possibility that an incarcerated defendant may be released from custody earlier than his designated sentence if he earns good time/work time credits. As Barella notes, this possible early release is speculative when the plea is taken and depends on facts that have not yet occurred. (Barella, supra, 20 Cal.4th at pp. 270, 272.) The possible relief from the registration requirement is similarly speculative and dependent on the defendants conduct after he has completed any incarceration.

II. Prejudice

Having concluded that the court erred in failing to advise defendant of the lifetime requirement of sex offender registration, we must determine whether he is entitled to the relief he seeks.

At the outset we observe that the rule articulated in Walker, supra, 54 Cal.3d 1013 is inapplicable to this case. Walker held that the error in failing to advise of the consequence of a plea is waived if not raised by a timely objection at or before sentencing. (Id., at p. 1023.) This procedural bar is inapplicable in the case before us, however, because unlike Walker, the present case does not involve a trial courts imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier plea proceeding -- a situation in which a defendant reasonably may be required to bring the discrepancy to the courts attention. (Moser, supra, 6 Cal.4th at 352, fn. 8.) Here, defendant was advised at his plea hearing of the possibility of registration, which would depend on the probation departments recommendation in its pre-sentence report. Defense counsel, by objecting at sentencing to imposition of registration, was plainly familiar with the reports recommendation that defendant be required to register.^[3] But nothing in the record suggests defendant himself was aware of the lifetime element of registration, nor should he be required to infer this missing information. (Ibid.)

Moser, a habeas corpus proceeding, concluded the trial courts misadvisement regarding the length of the defendants parole term constituted a violation of its obligation to advise the defendant on the direct consequences of his guilty plea. Citing Walker, supra, 54 Cal.3d 1013, Moser observed that the defendant would be entitled to withdraw his plea only if he established that he was prejudiced by the misadvisement, i.e., that he would not have entered the plea had the court given a proper advisement. (Moser, supra, 6 Cal.4th at p. 352.) Because the defendants petition for writ of habeas corpus did not specifically allege prejudice, and the Peoples return did not bring this omission to the trial courts attention, the question of prejudice was never litigated or resolved in the trial court. (Id., at pp. 352, 353.) Therefore, Moser concluded the interest of justice would be best served by remanding the matter to the trial court to hear and determine the question of prejudice. (Id., at p. 353.)

In McClellan, acompanion case filed the same day as Moser, the defendant pled guilty to a sex offense that mandates registration. (McClellan, supra, 6 Cal.4th at p. 380.) The trial court said nothing about the registration requirement at the plea hearing. (Id. at p. 372.) At sentencing neither the defendant nor his attorney challenged the probation officers recommendation that the defendant be required to register, even though they were aware of the probation departments recommendation at least a week before the sentencing hearing; nor did they question the courts imposition of the requirement. (Id., at p. 373.) The defendant did not assert the failure to advise in his initial notice of appeal. He added it as a ground in an amended notice of appeal filed six months later and argued therein that he should be allowed to withdraw his plea. (Id., at pp. 373, 377.)

McClellan concluded the error was harmless because the defendant failed to object to the requirement at sentencing (citing Walker), and because the appellate record did not establish that he was prejudiced by the failure to advise. (McClellan, supra, 6 Cal.4th at pp. 377, 378.) It observed that the defendants amended notice of appeal contained an assertion that, but for the trial courts omission, he would not have pled guilty, but such an extrajudicial assertion is not a proper component of the record on appeal. (Id., at p. 378.) By contrast, McClellan continued, there was no evidence or even an assertion in the record regarding the effect of the registration requirement on the defendants decision to plead guilty. It reiterated Mosers holding, which in turn relied on Walker, that [A] defendant (even on direct appeal) is entitled to relief based upon a trial courts misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. [Citations.] (McClellan, supra, 6 Cal.4th at p. 378.) Because nothing on the record supported the defendants allegation that he would not have entered his plea had he been properly advised, McClellan concluded that he failed to meet his burden of establishing prejudice. (Id., at p. 378.)

Unlike McClellan, the record before us contains evidence of prejudice from the failure to advise that registration was a lifetime requirement. In contrast to the defendant in McClellan who did not raise the issue of registration at all until his amended notice of appeal, defendant here objected to imposition of registration under section 290 at the sentencing hearing. Within weeks of sentencing he petitioned to withdraw his plea based primarily on what he characterized as an incomplete advisement, i.e., failure to advise of the lifetime requirement. Moreover, it was not a naked assertion. He supported his petition with a declaration that, while he was aware that he might have to register as a consequence of his plea, he understood that the length of the registration was concurrent with the period of probation. Had he known it was a lifetime requirement, he would never have entered his plea and would have insisted on going to trial.

On the record before us, there is no evidence to rebut defendants assertion that he understood that his registration requirement would be only for the duration of his probation. The Peoples opposition to his motion to withdraw his plea argued that the issue of lifetime sex registration was discussed at the original pretrial conference on January 19, 2005, four months before defendant entered his plea on May 9, 2005. At the September 27, 2005 hearing on defendants motion to withdraw his plea, the trial court commented that the prosecutor and the two defense attorneys discussed a referral to the probation department for possible registration at the January 19 pretrial conference, and that I [the trial court] made notes of that. The court also commented that we had another conference on February 22, 2005, at which registration was again discussed.

The minutes for the January 19, 2005 pretrial conference list defendant as appearing with his attorney. However, the Peoples opposition to defendants motion to withdraw his plea contained no declaration by the prosecutor or other direct evidence that defendant participated in this pretrial discussion regarding registration or that the discussion referred specifically to the lifetime nature of registration. Neither did the trial courts comments at the September 27, 2005 hearing recite or identify any specifics from its January 19, 2005 notes, e.g., that defendant himself participated in the discussion, or that registration was described as life-long. The minutes for the February 22, 2005 pretrial conference state that defendant was not personally present, that the trial date was confirmed, and that defendant remained in jail. Clearly, the minutes of the January and February 2005 pretrial conferences and the courts comments at the September 2005 hearing fail to show that defendant was a participant in, or was even present, during any discussion of lifetime registration.

Furthermore, the manner in which the probation department outlined its recommendations and in which the trial court articulated the sentence reasonably implies that the registration would last only the length of probation.

Under the heading RECOMMENDATION the presentence report states: Supervised probation for three (3) years on the following conditions: Registration as a sex offender is listed among the 14 conditions.

After the court announced that imposition of sentence was suspended, it instructed defendant that he was placed on three years of supervised probation on the following terms and conditions. It then enumerated the terms and conditions, incorporating among them the requirement that You shall register as a sex offender pursuant to section 290 of the Penal Code and maintain yearly registration requirements as required by law. The court did not distinguish the length of this condition of probation from the length of the probation itself. It concluded its enumeration by asking, [D]o you understand and agree to each of the terms and conditions of probation I have stated?

The printed form entitled Conditions of Probation that defendant signed on the day of sentencing states that he is on probation for three years. It includes the registration requirement alongside the other terms and conditions of probation.

A lay defendant new to the criminal justice system could understandably infer from the context in which the probation department and court enunciated the registration requirement that registration was a condition of probation and that he would be bound by the requirement only for the length of his probation.

The People rely on In re Resendiz (2001) 25 Cal.4th 230 and In re Alvernaz (1992) 2 Cal.4th 924 to support their contention that defendant failed to show prejudice. These cases are inapposite. They concern claims of ineffective assistance of defense counsel based on incompetent advice from counsel prior to entering a plea, not a claim of insufficient advisement by the court.

In light of (1) defendants prompt effort to withdraw his plea on the grounds of lack of advisement, accompanied by his specific declaration that he would not have entered a plea had he known of the lifetime registration requirement; (2) the format of the oral sentencing and written probation forms that misleadingly suggested that the registration requirement was for the duration of probation only; and (3) the absence of evidence that defendant was made aware that registration would be for life, we conclude that defendant met his burden of establishing prejudice from the courts failure to advise that a consequence of his no contest plea would be lifetime registration as a sex offender. Under the totality of these circumstances, the denial of his motion to withdraw his plea was an abuse of discretion. (See People v. Harvey (1984) 151 Cal.App.3d 660, 667.)

DISPOSITION

The opinion of the appellate department that affirmed the superior courts order denying defendants motion to withdraw his plea is reversed. The case is remanded to the superior court with directions to permit defendant to withdraw his plea, and, if he elects to do so, to reinstate the dismissed charges and proceed accordingly. If he declines to withdraw his plea, the judgment of the superior court is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

San Mateo County Superior Court, Appellate Division

Hon. Carl W. Holm

Counsel for plaintiff

and respondent: BILL LOCKYER

Attorney General

MARY JO GRAVES

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

SETH K. SCHALIT

Supervising Deputy Attorney General

JILL M. THAYER

Deputy Attorney General

JAMES P. FOX

District Attorney

JEFF JACKSON

Deputy District Attorney

Counsel for defendant

and appellant: ROBERT J. BELES

PAUL McCARTHY

H. ERNESTO CASTILLO

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1]Although see footnote 5, post. Under some circumstances and a minimum of 10 years after release from custody, the defendant may seek, but has no guarantee of, relief from the requirement.

^[2]A person who is required to register because he has been convicted of one of the offenses specifically listed in section 290.5, subdivision (a)(2) is relieved of the requirement only by a gubernatorial pardon. ( 290.5, subd. (b)(1); Hofsheier, supra, 37 Cal.4th at p. 1193.) Section 647, subdivision (a), of which defendant was convicted, is not one of these specified offenses. Generally, a person required to register for conviction of an offense other than those listed in section 290.5, subdivision (a)(2) may be relieved of the requirement if he obtains a certificate of rehabilitation pursuant to section 4852.01 et seq. ( 290.5, subd. (a)(1).) A person required to register under section 290 may seek a certificate of rehabilation 10 years after release from custody, based on a showing of living an honest and upright life, conducting himself with sobriety and industry, exhibiting good moral character, and obeying all laws. ( 4852.03, subd. (a)(2), 4852.05; People v. Failla (2006) 140 Cal.App.4th 1514, 1518.) The granting or denial of a petition for a rehabilitation certificate lies within the trial courts sound discretion. (Id. at p. 1519.)

^[3]Furthermore, the only objection defense counsel could assert was an objection to imposition of the registration requirement itself. Registration is not like most prison terms and restitution fines, which may be imposed within a limited range of years or dollars. If the offense gives the court discretion to impose registration and the court elects to exercise its discretion to impose the registration obligation, the court then has no discretion to impose a requirement for less than lifetime.