P. v. Tavis

Filed 6/18/07 P. v. Tavis CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The trial court denied appellant Douglas Gerald Taviss petition for writ of coram nobis. Tavis sought to vacate his plea of no contest to two counts of lewd and lascivious acts with a child, claiming that he was misadvised about the lifetime sex offender registration requirement when he entered that plea. (Pen. Code,^[1] 288, 290; former  290.1.) On appeal, he contends that the trial court abused its discretion in denying his petition when it ruled that he had not exercised due diligence in filing his petition in a timely manner. Tavis urges us to find that this lack of diligence was the fault of his counsel and that he himself was diligent once he was properly advised of the possibility of obtaining relief by means of a writ of error coram nobis. We affirm the judgment.

I. FACTS

In July 1979, appellant Douglas Gerald Tavis orally copulated a five-year-old boy and attempted to sodomize both the boy and his three-year-old sister. In January 1980, he pled no contest to two counts of lewd and lascivious conduct. ( 288.) At the time that he entered his plea, Tavis believed that he would be granted probation, that he could petition to have his conviction expunged if he satisfactorily completed probation, and he would not have to register as a sex offender once he successfully completed probation and had the conviction expunged. ( 1203.4.) The trial court found Tavis guilty of the two charges, suspended execution of a five-year prison sentence, and placed him on probation. ( 288.) He completed probation in 1982. During his probationary period, he registered as a sex offender. (See 290.)

In January 1982, section 290.1 was added, mandating lifetime sex offender registration even if the underlying conviction is expunged. (See former 290.1.)^[2] In November 1982, Taviss probation ended and his section 288 conviction was expunged. (See 1203.4.) His attorney advised him at that time that he no longer needed to register as a sex offender. Tavis did not register for the next 15 years.

In 1996, Tavis read in a newspaper article that those with a section 288 conviction had to register as a sex offender. Tavis sought legal advice about whether or not he was required to register after his section 288 conviction had been expunged. His attorney told him that he was not required to register but he went to the Fremont Police Department for a second opinion. In March 1997, both the Fremont Police Department and the California Attorney Generals office advised him to do so. He complied.

In December 2005, as news of his sex offender status reached his acquaintances, Tavis petitioned the trial court for a writ of error coram nobis.^[3] He asked the trial court to allow him to withdraw his 1980 plea of no contest to lewd and lascivious conduct or to strike the sex offender registration requirement. In March 2006, the trial court denied the petition. Tavis filed a timely appeal from that judgment.

II. DISCUSSION

Tavis urges us to find that his petition for a writ of error coram nobis was proper because he was induced to plead no contest to the section 288 allegations under the mistaken belief that he would be relieved of the obligation to register as a sex offender once his conviction was expunged. The People counter that the trial court did not err in denying this petition because at the time he entered his plea in 1980, the trial court did not advise Tavis that he would never have to register as a sex offender for life. The People also contend that Tavis did not diligently pursue his petition for writ of error coram nobis.

On appeal, we review a judgment denying a petition for a writ of error coram nobis under the abuse of discretion standard. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) A writ of error coram nobis will be issued only if Tavis can establish (1) that some fact existed that, without his fault or negligence, was not known to the trial court and that would have prevented the rendition of the judgment; (2) that there is new evidence that does not go to the merits of any issues of fact determined at trial; and (3) that he did not know nor could have discovered, with due diligence, the facts on which he now relies any sooner than the point at which he petitioned for the writ. (See ibid.) The writ only applies to correct errors of fact, not errors of law. (Id. at p. 545.)

In this matter, Tavis claims that in 1980 the trial court failed to inform him that his no contest plea would require lifetime sex offender registration. He asserts that if he had known of the lifetime registration requirement, he would not have entered this plea. However, the record on appeal does not support Taviss claim that the trial court misadvised him about the registration requirement. In 1980, when he entered his plea, the law did not require lifetime registration if a convicted sex offender expunged the underlying conviction. (People v. Fioretti (1997) 54 Cal.App.4th 1209, 1214-1215; see 1203.4.) Not until 1982before Tavis completed his term of probationdid state law require continuing registration^[4]even after expungement of an underlying conviction. ( 288, 290; former  290.1; see People v. Fioretti, supra, 54 Cal.App.4th at p. 1212.)When the trial court expunged his conviction in 1982, it had no authority to relieve him from the continuing registration requirements of section 290. (See People v. Fioretti, supra, at p. 1213.) As Tavis has not established a mistake of fact on the part of the trial court at the time of his 1980 conviction, he failed to establish a necessary element for a writ of error coram nobis. His claim of error is one of law, to which a writ of error coram nobis does not apply.^[5] (People v. Ibanez, supra, 76 Cal.App.4th at p. 544.) As Tavis has not established an error of fact, the trial court properly denied his petition for writ of error coram nobis.

Tavis argues that he was diligent in bringing his petition for writ of error coram nobis. He argues that any lack of due diligence was the result of ineffective counsel in 1982 when his conviction was expunged and in 1997 when he was misadvised about his continuing registration requirement. In light of our conclusion that Tavis failed to establish an essential error of fact, we need not address the due diligence issue.^[6] (See People v. Ibanez, supra, 76 Cal.App.4th at p. 549.)

The judgment is affirmed.

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Reardon, J.

We concur:

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Ruvolo, P.J.

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Sepulveda, J.

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

^[2]Former section 290.1 provided: Notwithstanding Section 1203.4 . . . , a person who is convicted of a sex offense for which registration is required under Section 290 shall not be relieved from the duty to register under that section. Section 290.1 was repealed in 2005. (See Stats. 2005, ch. 704, 2.) The substance of this former provision is now codified in section 290, subdivision (a)(2)(F).

^[3]In 2001, Tavis also filed a petition for certificate of rehabilitation and pardon for his sex offender registration requirement with the trial court. He withdrew his petition, which is properly directed to the Governors office. ( 288, 290, 4852.01, subd. (e).) The record does not contain any evidence of a pardon.

^[4]The shift from sex offender registration to lifetime registration has been held not to violate the ban against ex post facto law. (People v. Fioretti, supra, 54 Cal.App.4th at pp. 1212-1213; see U.S. Const., art. I, 9, cl. 3; 14th Amend.; Cal. Const., art. I, 9.)

^[5]Tavis confuses errors of law and errors of fact. He likens his case to a Supreme Court case which provided relief for the defendant because the trial court failed to advise him of statutorily imposed collateral consequences when he pled no contest to an allegation. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.) Zamudio is distinguishable from Taviss case for two reasons. First, Zamudio involved statutory law that applied at the time of the defendants conviction. Second, the Zamudio court was considering an error of law, not an error of facta key requirement for a writ of error coram nobis.

^[6]Tavis has filed a related petition for writ of error coram vobis and habeas corpus (No. A114460), which we address by separate order filed on the date of this opinion.