P. v. Moten

Filed 3/15/07 P. v. Moten CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael Lewis, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On November 22, 2005, the Kern County District Attorney filed a complaint in superior court charging appellant Ricky Gene Moten, Jr. and codefendants Shaliquese Leftrich and Deondray McGregory as follows:

Count Ipersonally carrying a loaded and concealed firearm (Pen. Code,  12031, subd. (a)(2)(F)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) (all defendants);

Count IIbeing an ex-felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and with two prior prison terms ( 667.5, subd. (b)) (appellant only); and

Count IIIbeing an ex-felon in possession of ammunition (Pen. Code,  12316, subd. (b)(1)) (appellant only).

On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On December 6, 2005, the court conducted a pre-preliminary examination hearing and defense counsel advised the court that counts II and III were based on prior convictions sustained by appellants father, Ricky Moten, Sr. and not by appellant himself.^[1]

On December 7, 2005, the district attorney amended the complaint to add count IV, misdemeanor participation in a criminal street gang (Pen. Code,  17, 186.22, subd. (a)). Appellant then pleaded nolo contendere to counts I and IV in exchange for dismissal of the remaining substantive counts and the special allegations ( 859a, 1385).

On January 23, 2006, appellant filed a motion to withdraw his plea of guilty, alleging he was a special education student who did not fully understand his options, the charges against him or the full extent of the plea he was entering.

On February 8, 2006, the prosecution filed written opposition to appellants motion to withdraw the plea.

On February 10, 2006, the court conducted a hearing on the motion to withdraw the plea, heard the arguments of counsel, and denied the motion, stating: [T]here is no appropriate justification to allow Mr. Moten to withdraw the plea. The court also denied a defense motion to strike count IV.

On the same date, the court suspended imposition of sentence on count I and admitted appellant to probation for three years, subject to service of six months in Kern County Jail. The court denied probation as to count IV and sentenced appellant to six months in Kern County Jail to be served concurrently with the term imposed on count I. The court imposed a $200 restitution fine (Pen. Code,  1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole ( 1202.44). The court also ordered appellant to pay a $20 court security fee ( 1465.8), to submit bodily fluid and print samples ( 296), and to register as an active criminal street gang participant ( 186.30). In addition, the court awarded seven days of custody credits for time served and dismissed several unrelated misdemeanor cases.

On April 3, 2006, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea and challenging the validity of the plea. On April 4, 2006, the superior court granted appellants request for a certificate of probable cause.

STATEMENT OF FACTS

The following facts are taken from the probation officers report filed February 10, 2006:

On November 18, 2005, at approximately 11:00 p.m., officers with the Special Enforcement Unit made contact with the defendant, Rickey Gene Moten, Jr., who was an occupant with three other subjects during a traffic enforcement stop. One of the officers could smell an odor of an alcoholic beverage emitting from the vehicle and using his flashlight observed the rear passenger seat floor to be wet with ice. After the defendant had provided the officer with his California drivers license he was then asked to step from the vehicle and keep his hands in plain sight. The defendant reached for the floorboard and the officer believed he was either trying to reach for a weapon or destroy some type of evidence. The officer immediately pulled the defendant from the vehicle and attempted to gain control. With the help of another officer, they attempted to remove the subjects left hand from underneath his body, as he resisted arrest. After several attempts they were able to handcuff the defendant and located a loaded 9mm Ruger handgun in his right front pocket. Subsequent investigation revealed a box of 9mm ammunition which was located under the drivers seat. Further investigation revealed the defendant and three other suspects in the vehicle, Deondre McGregory, and Shelly Shalliqese Leftrich, and a juvenile, Calvin B., were all known [as] East Side Crip gang members. All were arrested for being in possession of a loaded concealed firearm and active participation in an active gang. Calvin B. was transported to Juvenile Hall while the other three were booked into the Kern County Jail.

Charges regarding McGregory and Leftrich were dismissed on December 7, 2005. No charges were filed against Calvin B.

DISCUSSION

I.

DENIAL OF WITHDRAWAL OF PLEAS

Appellant contends the trial court abused its discretion by refusing to permit him to withdraw his pleas of nolo contendere.

A. Charges Against Appellant

As noted above, appellant was charged in count I with personally carrying a loaded and concealed firearm (Pen. Code,  12031, subd. (a)(2)(F)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); in count II with being an ex-felon in possession of a firearm ( 12021, subd. (a)(1)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and with two prior prison terms ( 667.5, subd. (b)); and in count III with being an ex-felon in possession of ammunition ( 12316, subd. (b)(1)). Appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

B. Pre-Preliminary Examination Hearing

On December 6, 2005, appellant and his counsel attended a pre-preliminary examination hearing. The prosecutor, Deputy District Attorney Mark Pafford, stated:

Your Honor, we offered, as to Mr. Moten, a plea to Count 1 for low term, 16 months, plus misdemeanor 186.22(a), for a lid of 16 months, and we would dismiss on the other two defendants on the condition that the plea remains in effect, but that offer has been rejected.

Defense counsel Joe Whittington noted that counts II and III of the complaint were based on priors sustained by appellants father, Ricky Gene Moten, Sr., rather than by appellant himself. Defense counsel went on to observe:

... and I think that the DA may have been misguided in his assessment of the value of the case in that regard as far as his offer. And I think thats where the difference lies in our ... negotiations whether we can agree on something or not, for the record.

C. Change of Plea Hearing

On December 7, 2005, the court conducted a change of plea hearing, with Deputy District Attorney Michael Vendrasco representing the People and Mr. Whittington representing appellant. The prosecutor indicated appellant was now prepared to plead to count I, a felony, and to a stipulated additional misdemeanor count of violating Penal Code section 186.22, subdivision (a). The following exchange occurred:

THE COURT: And why did we decide to come down to this now?

MR. WHITTINGTON: Your Honor, I can enlighten you on that. Originally when this complaint was filed, they added some allegations and charges based upon the record of Mr. Ricky Motens father who is currently in prison. And I believe that that was what some of the early negotiations were based on ....

And then when Mr. Vendrasco looked at the case, he spoke to the officers about it, and him being of sound mind thought that this was a proper offer in this particular case, and I agree.

THE COURT: All right. Counsel, are there issues related to the 186.22(a)(1) misdemeanor that we need to advise Mr. Moten of? If its a misdemeanor, it wont be a strike.

MR. VENDRASCO: Thats correct. Theres nothing that you need to advise him on in reference to that other than the conviction.

THE COURT: All right. Then, Mr. Vendrasco, the People have a motion to amend to add a Count 4, a violation of Penal Code Section 186.22(a)(1), being a member of a criminal street gang, a misdemeanor pursuant to Section 17?

MR. VENDRASCO: So moved.

THE COURT: That motion will be granted.

The court then advised appellant of his rights and appellant waived those rights. The court then took appellants plea. Appellant indicated he had enough time to talk to his attorney about the case, he had no questions to ask of counsel or the court before entering his plea, and that he was entering the plea freely and voluntarily. Defense counsel joined appellants waiver of rights and stipulated to a factual basis for the plea. Appellant then pleaded no contest to felony count I and to newly-added misdemeanor count IV. The court granted the prosecutors motion to dismiss the remaining substantive counts and special allegations on the condition this plea remaining in effect.

D. Motion to Withdraw Plea

On January 23, 2005, appellant, now represented by counsel Brian McNamara, filed a motion to withdraw his plea, alleging:

The defendant was a special education student at school. He is on SSI for this disability. During discussions with his attorney and during the plea he went along with what was happening rather than making an informed decision among alternatives. A plea cannot be free and voluntary under these circumstances. At no time did Mr. Moten fully understand his options, the charges against him or the full extent of the plea he was entering.

Moreover, the DA and probation were confused as to the charges against Mr. Moten contained in the complaint. The complaint charged Mr. Moten with two prison priors. The priors belonged to his father. Probation in their pre-prelim worksheet also included the prison priors. The original recommendation, prison time, from both the DA and probation were made based on inaccurate information. Mr. Whittington originally relayed a 2-year prison offer to Mr. Moten and he panicked.

The inaccuracies were found out prior to Mr. Moten entering his plea. However, the damage was done. By this time Mr. Moten was willing to take any deal which would not include prison time. His plea was not made free and voluntary.

In addition, the probation officers report for sentencing, in this case, still includes the priors. Also, the report shows that Mr. Motens present charges includes an enhancement for PC186.22 subdivision (a). He never pled to this. It is intuitive that this oversight influenced the recommendations of the report.

The inaccuracies and misunderstandings involved in reaching this plea and Mr. Motens intellectual inabilities negate any finding that the plea was free and voluntary. Thus good cause exists that would allow the defendant to withdraw a plea of guilty and proceed to trial.

Appellant submitted a brief, written declaration in support of the foregoing allegations.

On February 8, 2006, the district attorney filed written opposition to appellants motion. In a declaration opposing the motion, Deputy District Attorney Garrett L. Hamilton stated: I have read the defendants motion, and his affidavit in support of the motion. His words in his affidavit are contrary to his words to the court during the plea. [] This is apparently a case of buyers remorse, although for having a loaded gun in his pocket this was the lowest felony punishment available to him. [] I am opposed to this motion because I dont think legal grounds are established in the defendants moving papers.

The probation officers report filed February 10, 2006, stated in relevant part:

Health/Disabilities: Fair/The defendant reported partial disability to right hand, oilrig accident and learning disability, could not elaborate.

E. Trial Courts Ruling on Motion to Withdraw

On February 10, 2006, the court conducted a hearing on appellants motion to withdraw the plea. The court indicated it had received, read, and considered the parties points and authorities. The following exchange occurred:

MR. MCNAMARA: Judge, when I submit on paper on the declaration of Ricky here ... many of the things I say are there. Ive talked to him on the phone several times, and its exceedingly frustrating. I believe what he represents in his declaration I believe if we put him on the stand he would probably say the same in that respect. So its not one dimensional in terms of what were trying to claim or Mr. Motens trying to usurp the system here.

After talking to him and his family, we spent a long time together, I got some background that was obviously not aware to the previous attorney. Its not the sort of things attorneys look for, but it certainly came up in our discussions.

Hopefully Ive represented it well enough in the declaration, which you may consider what were asking in this case. [] Mr. Moten, at this time, when we say the number one is special education, I think its far deeper than that in the sense that his level of understanding is limited.

There was certainly some mistakes. And Im not trying to point fingers, but this happens quite a bit in a sense that he was alleged to have done more than he had in terms of priors, and it was found out through the process. Obviously the first communication between the attorney and Mr. Moten in this case was pretty frightening, as one can imagine, based on what he was accused of plus the priors. [] When it turned out that was not the case, I believe based on the combination of what Ive represented in terms of his education, in terms of some issues in the process in the pre-prelim situation, that was what was the reason for his plea.

Hes not familiar with the system, as most people arent the first time. Certainly not so much the first time, but certainly in this setting. And what Ive represented, I believe, in the declaration that Mr. Moten and I put together, should suffice.

Were asking the court in the interest of justice certainly to allow him to go back, at least get full consideration, at least get the time. I believe the Americans Disabilities Act to some extent would impose on the courtroom to some extent should be considered where its reasonable accommodation.

And with respect to the previous attorney, he was not unaware of that at that time. So reasonable accommodations was never asked for, and the way the set up is doesnt allow for that. Were asking the judge in this case to allow him to withdraw his plea, allow that special accommodation of time to consider fully his options, and then progress at that time. [] Ill submit it on that, Judge.

THE COURT: Thank you. Mr. Hamilton.

MR. HAMILTON [deputy district attorney]: Obviously, Judge, Ive written a response, and Ive submitted it to the court. [] I would offer in addition to that ... I dont think its appropriate for the court to consider references to special education or those types of things.

These attorneys are experienced. If they think someones incompetent or potentially incompetent to enter into a felony plea, then they know how to make the proper motions to the court. And I just dont think that those types of comments at this stage should hold any weight with this court.

Obviously we all have the transcript here. This court does a thorough job when it takes pleas, and I read this transcript. Its consistent with many pleas Ive seen this court take in the past. This court asked Mr. Moten if he had any questions for the court or for his attorney.

I dont see some kind of train speeding down the tracks that hes trying to jump out of the way of in this plea, and I really think that the court should deny the motion based on whats been brought to its attention today.

The court then ruled:

On the date of the pre-preliminary hearing, Mr. Moten was represented by counsel, and counsel engaged in negotiations with the district attorneys office. The court was advised of those negotiations, and Mr. Moten made a determination at that time to reject what turned out later to be an inappropriate offer by the district attorneys office. That offer was in part based on an inaccurate criminal history that was related to Mr. Motens father.

Mr. Moten on the 6th made that decision to reject what at that time he felt was inappropriate. [] The evening of the 6th he went home. He was out of custody. He was around people that certainly would have been able to provide him with additional support. [] It was not until the morning of the 7th, the next day, when this particular plea was entered.

I do not know what ... transpired in the preliminary hearing court. I do not know what the discussions were between Mr. Moten and counsel that morning, but I do know that they came to this court. They indicated to the court that, after a review of the criminal history, the People were prepared to offer this particular disposition. Mr. Moten was queried as to his constitutional rights; he was present in court; he made the appropriate responses.

The court did review the probation recommendation, and it did note that as to health or disabilities Mr. Moten did indicate to probation a learning disability, but did not elaborate.

From the evidence presented to the court, the time that Mr. Moten had to discuss the matter, the decisions that he made in rejecting what was a plea that was inappropriate he realized that, either through the advice of counsel or through his own understanding of the circumstancesand then his later decision to accept a plea, the court is going to find that there is no appropriate justification to allow Mr. Moten to withdraw the plea.

F. Contention on Appeal

Appellant stated in his April 1, 2006, request for certificate of probable cause:

1.) Representation by council [sic] was not effective in that defendant was not correctly advised [sic] by council [sic].

2.) Defendant plea was indorsed [sic] by duress and fraud by the prosecutor using defendants fathers criminal prison record.

3.) Defendant did not understand the full extent of his plea due to his mental disability to comprehend.

Appellant now contends in relevant part:

Appellant challenges the trial courts ruling because he presented clear and convincing evidence showing he should be allowed to withdraw his pleas. ... The requirement of a free and voluntary guilty plea must be met in the plea bargaining process. (In re Sutherland (1972) 6 Cal.3d 666, 668-671.) Appellant declared he was a special education student throughout his school career, he received disability benefits for the disabling condition which qualified for special education services, he did not understand the charges in the complaint, he did not understand his options, or the significance of the proceedings, and appellant entered the plea because he would have accepted any plea offer to avoid being remanded to prison. The probation officer indicated appellant had reported he had a learning disability and he could not elaborate. There was no evidence offered to contradict these assertions of fact.

From the cold record of the plea taking proceedings, it appears appellant understood the nature of this plea, based upon appellants repeatedly responding, Yes, sir, he understood his rights, the nature of the plea, and his plea was entered voluntarily, and No, sir, he had not been promised anything else and had not been coerced into entering a plea, and offering no contest, when asked what his plea was. However, at the hearing on the motion to withdraw the plea, Mr. McNamara argued on appellants behalf that his experience communicating with appellant had been, exceedingly frustrating, and the problem with comprehension for appellant was far deeper than his having been eligible for special education in that appellants, level of understanding is limited.

Counsel for appellant referred to the Americans with Disabilities Act .... ... A reasonable accommodation for a person with a comprehension disability is to allow more time. Counsel for appellant in the trial court did not specifically assert the trial court was acting in a discriminatory manner. However, the trial court was alerted to appellants special need for additional time to consider his options due to his apparently limited abilities to comprehend and communicate.

Appellant, having no prior criminal record, was not familiar with the process. In view of the level of evidence presented meeting the clear and convincing standard of proof, the trial courts ruling against appellants motion to withdraw his plea was an abuse of discretion.

G. Governing Law

Penal Code section 1018 provides in relevant part: On application of the defendant ... within six months after an order granting probation is made if entry of judgment is suspended, the court may ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Good cause means mistake, ignorance, fraud, duress, or any other factor that overcomes the exercise of free judgment. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) To withdraw a guilty plea, the defendant must show good cause by clear and convincing evidence. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) In other words, the burden is on defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) A guilty plea will not be set aside simply because the defendant changed his or her mind. (In re Vargas, supra, at pp. 1143-1144.) Rather, this exceptional remedy applies only upon a strong and convincing showing that the defendant was deprived of legal rights by extrinsic causes. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.)

When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) Accordingly, an appellate court will not disturb the trial courts ruling unless an abuse of discretion is clearly demonstrated. (People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1247.) On appeal, we are required to accept all factual findings of the trial court that are supported by substantial evidence. Under California law, it is entirely within the trial courts discretion to consider its own observations of the defendant in ruling on such a motion. The court may also take into account the defendants credibility and his or her interest in the outcome of the proceedings. (People v. Ravaux, supra, 142 Cal.App.4th at pp. 917-918.) Guilty pleas resulting from a plea bargain should not be set aside lightly and finality of proceedings should be encouraged. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.)

H. Application of Law

In the instant case, appellant claims he has a learning disability that rendered him incapable of exercising his free will in the trial court. The record belies this assertion. At the December 6, 2005, pre-preliminary examination hearing, the district attorney offered appellant a plea bargain entailing the 16-month lower term of imprisonment on count I. Appellant rejected that offer. The following day, the district attorney offered a plea bargain for probation conditioned upon the service of no more than one year in county jail. Appellant accepted that offer. During the December 7, 2005, change of plea hearing, appellant correctly answered the questions proffered by the court. Upon questioning, appellant indicated to the court that he had enough time to talk to his attorney about the case and did not have any questions he wanted to ask his counsel or the court before the taking of the plea. Appellant also indicated that no one offered him an inducement or made a threat to get him to enter the plea. He further indicated that his plea was free and voluntary.

At the hearing on the motion to withdraw the plea, the trial court methodically outlined the sequence of events leading to appellants plea. The court then referred to the evidence presented, the time appellant took to discuss the matter, the decisions he made in first rejecting a plea that was inappropriate and then accepting the plea at issue. From these facts and circumstances, the court concluded there was no appropriate justification to allow appellant to withdraw his plea. Given the trial courts careful recitation and analysis of the events occurring at the pre-preliminary examination hearing and the change of plea hearing, we cannot say appellant has demonstrated an abuse of discretion. Appellants contention on appeal must be rejected.

II.

THE CONDITIONALLY DISMISSED SUBSTANTIVE COUNTS AND SPECIAL

ALLEGATIONS

Appellant contends the substantive counts and allegations which were conditionally dismissed on his plea must be dismissed unconditionally.

He explains:

[On December 6, 2005,] [c]ounsel for appellant advised the trial court that the counts based upon prior convictions and the alleged prior prison term allegations, were based upon a criminal record of appellants father, Ricky Moten, Sr., and these, misguided charges, were complicating plea negotiations. The following day, appellant had agreed to plead guilty or no contest to unlawful possession of a loaded, concealed firearm and misdemeanor participation in criminal gang activity, and he would be granted probation with service of up to one year in jail as a term and condition thereof. The trial court asked, why did we decide to come down to this now? Counsel for appellant advised the trial court that the prosecutor had reassessed the appropriate disposition of this case without regard to the inappropriately filed counts and enhancement allegations based upon appellants fathers criminal record.

The complaint was amended to add count 4, a misdemeanor violation of Penal Code section 186.22, subdivision (a), participating in criminal gang activity. Appellant pled no contest to unlawful possession of a loaded, concealed firearm and misdemeanor participation in criminal gang activity. On the prosecutors motion, the remaining charges and enhancement allegations were dismissed on condition the plea remained in effect. Appellant requests this Court exercise its authority in the interests of equity and justice to direct the trial court to enter an unconditional dismissal of counts 2 and 3, and the prior conviction and prison term enhancement allegations.

Respondent contends the appellate record does not prove that it was appellants father who suffered the predicate offenses involved in counts II and III. Although respondent acknowledges there is some evidence to support appellants contention, respondent maintains the appellate record does not clearly establish that appellant did not suffer the predicate offenses. Respondent asserts that appellant has failed to supply a record of the alleged error and this court should reject his claim.

The complaint alleges appellant sustained a July 25, 1995, conviction of Health and Safety Code section 11360 (Super. Ct. Kern County, No. 63182) and an August 3, 2004 conviction of Penal Code section 12031, subdivision (a)(2)(F) (Super. Ct. Kern County, No. BF99549). A review of the criminal history section of the probation officers report in the instant case does not reveal either of these trial court docket numbers or the offenses underlying them. Further, our independent review of the record in appellants fathers prior appeal, case No. F041202, does not reveal either of the docket numbers or the offenses underlying them.^[2]

A review of the supplemental clerks transcript in the instant case reveals the complaint in case No. 63182 was filed in Bakersfield Municipal Court on June 13, 1995 and charged one Otis Lee Wandick and one Deondray Leon McGregorya codefendant in the instant casewith several offenses. The complaint in case No. BF99549 was filed in Kern County Superior Court on August 1, 2002 and charged McGregory and one Delwin Michael Maynor with a number of offenses. Appellant Ricky Gene Moten, Jr. was not named as a defendant in either case. The record in the instant appeal also contains probation reports for McGregory in case Nos. 63182 and BF99549. Appellant Ricky Gene Moten, Jr. is not mentioned in these reports.

The Penal Code requires that the People plead and prove prior serious felony conviction allegations before they can affect the sentence imposed. To meet such requirements, the People bear the burden of proving such sentencing allegations. (People v. Mitchell (2000) 81 Cal.App.4th 132, 154, disapproved on another point in People v. Barragan (2004) 32 Cal.4th 236, 259, fn. 9.) The elements of the offense proscribed by Penal Code section 12021, charged in count II in the instant case, are knowledge, conviction of a felony and ownership, possession, custody or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Here, it appears obvious the prior offenses alleged against appellant Ricky Gene Moten, Jr. were actually sustained by appellants codefendant, Deondray McGregory, and several others in case Nos. 63182 and BF99549. Therefore, counts II and III and the related special allegations should be unconditionally dismissed by the trial court for reasons independent of the plea [as to counts I and IV] remaining in effect.

III.

GANG REGISTRATION

Appellant contends the gang registration requirement should be set aside because it is a direct consequence of his plea and the trial court did not specifically advise him of that consequence.

He specifically argues in relevant part:

The trial court should have advised appellant about the gang member registration requirement, because it is a direct consequence of his plea. (Bunnell v. Superior Court [(1975)] 13 Cal.3d 592, 605 [duty to advise of direct consequences of plea includes advising of narcotic addict or sex offender registration requirements]; In re Birch (1973) 10 Cal.3d 314, 321-322 [sex offender registration requirement].) ... The record establishes the court failed to advise appellant of this direct consequence of his plea.

The failure to advise appellant of the direct consequence of the registration requirement is an error with a remedy as addressed in People v. Walker (1991) 54 Cal.3d 1013, where the California Supreme Court addressed the issue of the erroneous imposition of a restitution fine. In Walker, the defendant pleaded guilty to a felony pursuant to a plea bargain. In accepting his plea, the court advised the defendant that the maximum penalty for the offense was seven years in state prison and a $10,000 fine. He was not informed that he was subject to a mandatory restitution fine of between $100 and $10,000; nor was he advised pursuant to section 1192.5 that he had the right to withdraw his plea if the sentencing court deviated from the plea bargain....

The Supreme Court in People v. Walker, supra, 54 Cal.3d 1013, 1029, explained that the court erred in not advising the defendant about this direct consequence of the defendants plea. [] ... []

The Walker decision concluded that the imposition of the restitution fine violated the plea bargain. This violation was not subject to harmless error analysis because, just as in this case, a Penal Code section 1192.5 admonition was not given. The court in Walker reasoned that because the error was raised after sentencing, the proper and appropriate remedy was simply to reduce the restitution fine to its statutory minimum of $100. (People v. Walker, supra, 54 Cal.3d 1013, 1026-1029, 1030.) Here, the registration requirement is mandatory, like the restitution fine addressed in Walker. However, since there is not [a] way to reduce the registration requirement to a minimum, as was possible in Walker, it appears this Court must set aside the registration requirement altogether.

At the December 7, 2005, change of plea hearing, the prosecutor indicated that appellant was prepared to plead to count I and to a stipulated additional count of Penal Code section 186.22, subdivision (a)(1), which became count IV of the information. After receiving some background information from defense counsel, the court asked the prosecutor, Counsel, are there issues related to the 186.22(a)(1) misdemeanor that we need to advise Mr. Moten of? If its a misdemeanor, it wont be a strike. The prosecutor responded, Thats correct. Theres nothing that you need to advise him on in reference to that other than the conviction. The court amended the complaint to add count IV, appellant entered nolo contendere pleas to counts I and IV, and the court dismissed the other substantive counts and special allegations. On February 10, 2006, the probation officer filed a report recommending that appellant register as a gang member under section 186.30. On January 23, 2006, appellant filed a written motion to withdraw his plea. Appellant concedes his motion to withdraw his plea did not aver he would not have entered into his plea had he been advised that he would have to register as a criminal gang member.

Penal Code section 186.30 states:

(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.

(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses:

(1) Subdivision (a) of Section 186.22.

(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true.

(3) Any crime that the court finds is gang related at the time of sentencing or disposition.

Before taking a guilty plea, the trial court must admonish, and counsel must advise, the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244; In re Tahl (1969) 1 Cal.3d 122, 131-135; In re Moser (1993) 6 Cal.4th 342, 351; People v. Walker (1991) 54 Cal.3d 1013, 1020 (Walker); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) For example, a sex offender registration requirement pursuant to Penal Code section 290 constitutes a direct and grave consequence of a defendants guilty plea. A trial court thus errs when it fails to advise a defendant that he or she is required to register as a sex offender under section 290. (People v. McClellan (1993) 6 Cal.4th 367, 376.)

Advisement error and broken plea bargains are related but distinct violations of defendants rights, which have substantially different consequences and must be analyzed separately. (Walker, supra, 54 Cal.3d at pp. 1019-1020; In re Moser, supra, 6 Cal.4th at pp. 350-351; People v. McClellan, supra, 6 Cal.4th at p. 375; People v. Olea (1997) 59 Cal.App.4th 1289, 1296, fn. 4.) Appellant maintains the instant case raises an error of misadvisement and not a claim of a violation of the plea agreement. The People do not dispute that appellant was not advised regarding the gang registration requirement. However, the question is whether defendant is entitled to relief on this appeal.

Absent a timely objection, a defendant waives a claim of error as to a trial courts misadvisement concerning the consequences of a guilty plea. (People v. McClellan, supra, 6 Cal.4th at p. 377; accord Walker, supra, 54 Cal.3d at p. 1023.)^[3] In Walker, the California Supreme Court held:

The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. [] In this case, the record reflects that defense counsel was familiar with the probation report. Had the recommendation that defendants be ordered to pay a restitution fine come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court. [Citation.]

Thus, when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is reasonably probable the defendant would not have pleaded guilty if properly advised. [Citation.] [] As the defendant is already before the court at sentencing, this determination of prejudice should not be difficult or time consuming. (Walker, supra, 54 Cal.3d at p. 1023.)

Here, our review of the record reveals defendant had sufficient notice of the gang registration requirement to be deemed to have waived any claim on appeal. The probation officers report signed January 17, 2006 and filed February 10, 2006, concluded: It is further recommended that the defendant register under the provisions of Section 186.30 of the Penal Code. While defense counsel did not reference that provision during the contested hearing to withdraw the plea, counsel was intimately acquainted with the contents of the report. In fact, shortly after the court denied appellants motion to withdraw, defense pointed out an error in the report listing Penal Code section 186.22, subdivision (a) as an enhancement to count I rather than as a separate misdemeanor count IV. Despite this familiarity with the details of the report, defense counsel declined or failed to object to the registration requirement during the February 10, 2006, sentencing hearing.

In view of counsels awareness of the contents of the probation officers report, appellants contention may be deemed waived. In his reply brief, appellant asserts: To the extent the instant contention may be deemed waived by failure to assert a timely objection in the trial court, counsel for appellant in the trial court failed to act as a diligent, reasonably competent advocate. As to the failure to object, appellant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Pope (1979) 23 Cal.3d 412, 425.) To establish constitutionally inadequate representation, the defendant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsels failings the result would have been more favorable. (People v. Haskett, supra, at p. 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

We presume that counsels conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsels tactical decisions. Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Tactical errors are generally not deemed reversible and counsels decisionmaking must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.)

On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. (People v. Riel (2000) 22 Cal.4th 1153, 1197.) Furthermore, counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.) The record in the instant case does not disclose the absence of a rational, tactical purpose for counsels failure to object to the registration requirement. If any of three conditions specified in Penal Coe section 186.30 is found to exist, a gang registration order is mandatory. (People v. Martinez (2004) 116 Cal.App.4th 753, 758-759.) A court can neither disregard the language of the statute nor expand the scope of the statute to impose registration for convictions of crimes not listed or under conditions not specified. (Id. at pp. 760-761.) In these stringent procedural circumstances, we cannot say that trial counsels failure to object amounted to ineffective assistance of counsel.

Appellants challenge to the gang registration requirement must be rejected.

DISPOSITION

The trial court is directed to designate in its minutes that counts II and III (substantive offenses and attendant special allegations) are dismissed without referring to such dismissal being conditional. In all other respects the judgment is affirmed.

_____________________

HARRIS, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

KANE, J.

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^[1] In 2002, Ricky Moten, Sr. sustained a judgment of conviction of one count of petty theft with a prior (Pen. Code,  666). He appealed, asserting inadmissibility of prior-crime evidence and instructional errors. This court affirmed the judgment of conviction in an nonpublished per curiam opinion. (People v. Moten (Sep. 17, 2003, F041202 [nonpub. opn.].)

^[2] Judicial notice may be taken of the records of any court of this state. (Evid. Code,  452, subd. (d)(1)). The reviewing court may take judicial notice of any matter specified in Evidence Code section 452. (Evid. Code,  459, subd. (a).) When taking judicial notice of a matter specified in section 452, the reviewing court shall comply with the provisions of Evidence Code section 455, subdivision (a) when the matter is of substantial consequence to the determination of the action. (Evid. Code,  459, subd. (c).) Under Evidence Code section 455, subdivision (a), the court shall afford each party reasonable opportunity, before the cause is submitted for decision, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed. (Evid. Code,  455, subd. (a).) We have done so.

^[3] In contrast, a trial courts failure to provide an admonition under Penal Code section 1192.5 (plea of guilty or nolo contendere; procedure on approval; withdrawal) permits a defendant to complain of an asserted violation of the plea agreement despite the absence of any objection at the sentencing hearing. (People v. McClellan, supra, 6 Cal.4th at p. 378.)